Author: Julian Ku

by Julian Ku

Another day, another chance for folks in the UK to make threats about bringing legal action against the Pope during his upcoming September visit to the UK.  The latest attack comes from noted atheists Richard Dawkins and Christopher Hitchens. It looks like the focus will be on breaking down the Pope’s head-of-state immunity defense, rather than trying to fit the sex abuse into the category of crimes against humanity. I think even this argument is very shaky, and wouldn’t fly in the U.S. because courts would give absolute deference to the executive branch’s decision to recognize the Vatican as a state, and the Pope as the head of state. But these UK lawyers are serious, they have real money behind them, so legal action will likely happen. Will the Pope take the chance and visit anyway?

Richard Dawkins and Christopher Hitchens are paying lawyers to investigate whether Pope Benedict XVI should be arrested when he visits Britain in September.

Mr Dawkins and Mr Hitchens believe the Pope should face charges for the alleged cover-up of sex abuse in the Catholic Church, The Guardian reports.

…

Mark Stephens, a lawyer for Mr Dawkins and Mr Hitchens, says only those with UN protection are safe.

“The Vatican is not recognised as a state in international law. People assume that it has existed for time immemorial but it was a construct of [Italian wartime leader Benito] Mussolini and, when the Vatican first applied to become a member of the UN, the US said no,” Mr Stephens told The Guardian.

…

“[Fellow lawyer Geoffrey Robertson] and I have both come to the view that the Vatican is not actually a state in international law. It is not recognised by the UN, it does not have borders that are policed and its relations are not of a full diplomatic nature.”

by Julian Ku

The results of this new study about the ineffectiveness of international aid to certain developing countries is not surprising, but it is still depressing.

For years, the international community has forked over billions in health aid, believing the donations supplemented health budgets in poor countries. It now turns out development money prompted some governments to spend on entirely different things, which cannot be tracked. The research was published Friday in the medical journal Lancet.

Experts analyzed all available data for government spending on health in poor countries and the aid they received. International health aid jumped from about $8 billion in 1995 to almost $19 billion in 2006, with the United States being the biggest donor.

Most countries in Latin America, Asia and the Middle East doubled their health budgets. But many in Africa – including those with the worst AIDS outbreaks – trimmed their health spending instead. In the Lancet study, for every dollar received from donors, poor countries transferred up to $1.14 originally slated for their health budgets elsewhere. The research was paid for by the Bill & Melinda Gates Foundation

Moreover, debt relief for many countries is unlikely to have a positive effect either, the study suggests.

Murray’s paper also found debt relief had no effect on health spending. Activists like Bob Geldof and Bono have long argued canceling African debts would allow countries to spend more on their health problems, but there was no evidence of that.

“When an aid official thinks he is helping a low-income African patient avoid charges at a health clinic, in reality, he is paying for a shopping trip to Paris for a government minister and his wife,” said Philip Stevens, of the London-based think tank International Policy Network. He was not linked to the study.

by Julian Ku

Kevin has done, and is doing, a very nice job of critiquing the legality of the Obama Administration’s targeted killing policy.  On the critical side, it is also worth noting the views of Mary Ellen O’Connell, Professor at Notre Dame, who has become a leading public critic of the legality of this policy.  Her basic point is that international law only permits such killings on the battlefield, and any killings off of the battlefield (as she defines it) are illegal acts of extrajudicial murder. This would be true whether or not the U.S. actor is a privileged combatant.  I think this makes sense, even if I doubt it is right.  It does show, however, that the Obama and Bush Administration’s policies as to the nature of this war is pretty close (and getting closer).  Because it is President Obama, and because he has folks like Harold Koh, Neal Katyal, and Marty Lederman to defend these views, I don’t think there will be nearly the same level of controversy as during the Bush years.

by Julian Ku

I don’t know a lot about CEDAW, the Convention for the Elimination of Discrimination Against Women, but I know that lots of groups on both sides think the treaty is really important. For instance, in this post, a critic of CEDAW quotes a proponent of CEDAW, Janet Benshoof,  for the view that:

“[W]ere the United States (US) to ratify CEDAW, it would bring about a “radical transformation of American law,” which would include overturning any abortion restrictions in domestic laws or those covering foreign activities. Further, Benshoof asserted that CEDAW doesn’t allow for any defense based on custom or religion, and that it applies to all private conduct.

I guess my (admittedly not expert) reading doesn’t see where the big transformation is.  Not to mention the treaty is almost certainly non-self-executing.  But this debate may eventually come back to us when (or if) the Obama Administration makes a final push for CEDAW (although that will probably not be until Obama’s second term, if there is a second term).

by Julian Ku

I don’t fully understand the nature of the legal charges against Spanish Judge Baltasar Garzon. It sounds like, from this Economist article, that he is being accused of some version of “prosecutorial” and “judicial” misconduct for refusing to follow the terms of Spain’s 1977 amnesty law preventing investigations into Franco-era crimes.  Garzon apparently held that there is a consensus that amnesties are illegal under international law and therefore could not bar his assertion of jurisdiction.  This seems like a  very sketchy legal holding, but I haven’t thought about this enough to opine with any certainty.  I am fairly confident that there is no consensus that such amnesties are illegal. But whether this is enough to find misconduct under Spanish law, I have no idea. Anyone out there with links to the relevant opinions?

by Julian Ku

We knew this was coming, but still it is a big deal:

MADRID — The Spanish judge who became an international hero by going after Augusto Pinochet and Osama bin Laden was indicted Wednesday for having dared to investigate what is arguably Spain’s own biggest unresolved case: atrocities committed during and after its ruinous Civil War.

Baltasar Garzon was charged with knowingly acting without jurisdiction by launching a probe in 2008 of tens of thousands of wartime executions and disappearances of civilians by forces loyal to Gen. Francisco Franco. The crimes were covered by a 1977 amnesty.

Garzon does not face jail time but if convicted he could be removed from the bench for 10 to 20 years. A conviction would effectively end Garzon’s career as a judge, his attorney has said.

The indictment by Luciano Varela, an investigating magistrate at the Supreme Court, marks a devastating fall from grace for one of Spain’s most prominent and divisive public figures and a man well-known overseas for his cross-border justice cases.

Garzon, 54, is a hero to leftists and international human rights groups like Amnesty International, but he is a headline-loving egotist with a grudge against the right in the eyes of Spanish conservatives. He has prosecuted people ranging from Islamic extremists to Basque separatists to Argentine “dirty war” suspects, and has many political enemies.

Garzon will probably be suspended from his post at the National Court in a matter of days and a trial could start as early as June, Garzon’s lawyer Gonzalo Martinez-Fresneda told AP Wednesday.

by Julian Ku

The NYT reports that the Obama Administration has authorized the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, The article notes the international law justification for his killing: he is an avowed member of Al Qaeda actively engaged in hostilities against the U.S.  Under either the law of armed conflict or the general law of self-defense, the Administration probably has the legal authority to kill him.  (Unless international human rights law applies, but the administration plainly believes this law does not apply). 

But, as I noted here a few months ago, this international law analysis does not answer questions about al-Awlaki’s constitutional rights.  Under U.S. Supreme Court precedents, U.S. citizens often can invoke constitutional rights against the U.S. government, even when they are abroad. (See Reid v. Covert). Maybe this is a situation where granting constitutional protections would be, as Justice Harlan  suggested, “impracticable and anomalous.”  It certainly seems that way, and I assume the Obama Administration has concluded that the Constitution does not apply.  Alternatively, the Constitution might apply, and the theory is simply that al-Awlaki’s rights substantive and procedural Due Process rights are not being violated.  This seems a harder argument to make, and it would be fascinating to see someone (like Harold Koh again?) make it.

by Julian Ku

Here’s another interesting report on the ongoing battle against Somalia-based pirates.  The upshot: some progress is being made, especially with private security forces (including one which uses sound waves to push away approaching pirates).  But legal limitations continue to limit the effectiveness of both naval and private self-defense.

“No commanding officer of any ship wants a situation where he used force and then is told a week later that he shouldn’t have.  That he violated the rules and under international law maybe murder would be applied to that.  It’s a dangerous line to cross,”

One former naval officer suggests creating an in-shore “maritime police” force.

“The proposal is send the warships home.  And let’s get an international task force together of maritime police and put them inside Somali territorial waters under U.N. auspices, with a U.N. Security Council resolution giving them authority,”

by Julian Ku

Walter Russell Mead has an illuminating post on the liberal internationalist tendencies of the Obama Administration.  Putting aside whether or not liberal internationalism is, as Mead puts it, ”a strategic mistake that leads a lot of people inside the administration and well beyond it to make consistently bad decisions about American foreign policy.”, I find his post fascinating for its classification of different approaches to foreign policy and international law.  According to Mead, foreign policy decision makers in both the Bush and Obama administration arein favor of the promotion of liberal democracy and human rights. The real difference is how to do so: neoconservativism tends to support unilateral or at least liberal coalitions acting alone whereas liberal internationalists are deeply committed to international institutions and their legal processes. Anyway, something worth keeping in mind. I wonder if “liberal internationalism” will ultimately acquire the same kind of negative connotation that neoconservatism currently has.

by Julian Ku

It’s not exactly a hot topic, even among international lawyers, yet the ongoing dispute over the Western Sahara (and Morocco’s claim to it) has drawn the attention of 54 U.S. Senators, who recently sent a letter to U.S. Secretary of State Clinton about it favoring support for Morocco’s 2007 proposal for autonomy in the disputed region. This analysis claims the letter’s approach would trample on the people of the Western Sahara’s right to self-determination.  I don’t think it’s that clear cut, but it is interesting to see the U.S. Senators even getting involved in this fight. Does Morocco have lots of really good lobbyists?

by Julian Ku

Happy Easter, everyone!  I recognize this is a bit of an unpleasant topic to bring up on a holy day, but it is worth noting that the rumblings about litigation against the Vatican and the Pope over the various child-sex-abuse scandals continue.  Lawyers in the UK are actively researching how and whether to bring legal action during the Pope’s upcoming visit.  As commenters to my earlier post have pointed out, any claim against the Pope himself, or the Vatican, under international law seems fairly sketchy.  But a lawsuit might still be filed. From the AP:

Protests are growing against Pope Benedict XVI’s planned trip to Britain, where some lawyers question whether the Vatican’s implicit statehood status should shield the pope from prosecution over sex crimes by pedophile priests.

More than 10,000 people have signed a petition on Downing Street’s web site against the pope’s 4-day visit to England and Scotland in September, which will cost U.K. taxpayers an estimated 15 million pounds ($22.5 million).

The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.

Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.

by Julian Ku

Genocide is one of those phrases with both highly potent political ramifications as well as highly complicated legal requirements.  These two characteristics, GUÉNAËL METTRAUX argues in the IHT, make the obsessive focus on whether something is or is not a genocide (Armenia? Srebenica?) a largely hopeless and unhelpful exercise for historical events.

The very proposition that legal concepts such as genocide could ever adequately measure and reflect the intricacies of such historical events could itself be questioned. International criminal law, which includes genocide, provides for ways to criminalize the conduct of individuals who have taken part in mass atrocities — not for passing judgment on history.

Even if it were capable of this, the law is likely to provide some support for both sides and might therefore contribute to grinding the process of healing historical wounds to a slow and divisive ethnic or religious standstill rather than to help resolve anything.

The debate surrounding the use of the word “genocide” has made the nations involved hostages of a legal issue that they seem unable to resolve. Better, it seems, for them to focus on recording and recognizing facts that are undeniable historical truths and leave the debate over the legal characterization of these events for another day. Future generations of Turks and Serbs would be grateful to have been freed from the burden of explaining, defending or arguing over crimes that they have no responsibility for.

by Julian Ku

I don’t know if I buy this article’s suggestion that the various Catholic Church priest-pedophile scandals amount to a “crime against humanity” under international law, but I do think the Pope’s right to “head of state” immunity under international law is a tough question.  In the U.S., the Pope has been granted head of state immunity (thanks to President Bush and then Legal Adviser John Bellinger), but it is far from clear that he enjoys such status in other countries or under international law generally. And can he at least be deposed, as these U.S. litigants are demanding?

Well may the pope defy “the petty gossip of dominant opinion“. But the Holy See can no longer ignore international law, which now counts the widespread or systematic sexual abuse of children as a crime against humanity. The anomalous claim of the Vatican to be a state – and of the pope to be a head of state and hence immune from legal action – cannot stand up to scrutiny.

…

[Bellinger’s opinion] hinges on the assumption that the Vatican, or its metaphysical emanation, the Holy See, is a state. But the papal states were extinguished by invasion in 1870 and the Vatican was created by fascist Italy in 1929 when Mussolini endowed this tiny enclave – 0.17 of a square mile containing 900 Catholic bureaucrats – with “sovereignty in the international field … in conformity with its traditions and the exigencies of its mission in the world”.

The notion that statehood can be created by another country’s unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage. …

by Julian Ku

This is probably just posturing, but it would be a rather dramatic turn of events if the IWC ended up a casualty of the vociferous Australian campaign against Japanese whaling.  I see the Kiwis are trying to play mediator.

The international body to control whaling worldwide could collapse if a deal cannot be reached to allow restricted commercial whaling, New Zealand’s representative said Thursday.

Former New Zealand prime minister Geoffrey Palmer, who chairs an International Whaling Commission (IWC) group trying to negotiate a deal, said the IWC could fall apart.

“I think there is a big risk of that and I don’t relish it,” Palmer told reporters in Wellington.

Negotiations start next week in DC and the big date is April 22 for a deal to go forward to the annual IWC meeting. Stay tuned!

by Julian Ku

When the ICC Pre-Trial Chamber approved the Prosecutor’s request for authority to investigate alleged “crimes against humanity” in Kenya, I didn’t notice this long and powerful dissenting opinion (around p. 84) by one of the judges (Hans-Peter Kaul).  The standard for authorizing an investigation is pretty easy to satisfy (at least it sounds that way to me), so the dissent here was striking.    I’ll leave it to others to decide as to whether Judge Kaul is right (check out the ICC’s new YouTube channel for more discussion). He sure has me halfway convinced.  Some choice excerpts (emphasis added) after the jump.

In essence, the main reason for this position [against the investigation] is the following: both, my interpretation of article 7(2)(a) of the Statute, which sets out the legal definition of “attack directed against any civilian population” as constitutive contextual element of crimes against humanity, and my examination of the Prosecutor’s Request and supporting material, including the victims’ representations, have led me to conclude that the acts which occurred on the territory of the Republic of Kenya do not qualify as crimes against humanity falling under the jurisdictional ambit of the Court. I have concluded in particular that there is no reasonable basis to believe that crimes, such as murder, rape and other serious crimes, were committed in an “attack against any civilian population” “pursuant to or in furtherance of a State or organizational policy to commit such attack”, as required by article 7(2)(a) of the Statute.

[snip]

8. As a Judge of the International Criminal Court (the “Court” or the “ICC”), I would like to ask all in the Republic of Kenya who yearn for justice and who support the intervention of the Court in this country for understanding the following: there are, in law and in the existing systems of criminal justice in this world, essentially two different categories of crimes which are crucial in the present case. There are, on the one side, international crimes of concern to the international community as a whole, in particular genocide, crimes against humanity and war crimes pursuant to articles 6, 7, and 8 of the Statute. There are, on the other side, common crimes, albeit of a serious nature, prosecuted by national criminal justice systems, such as that of the Republic of Kenya.

[snip]

10. Furthermore, it is my considered view that this would not be in the interest of criminal justice in general and international criminal justice in particular. It is neither appropriate nor possible to examine and explain in this opinion all the potential negative implications and risks of a gradual dov^mscaling of crimes against humanity towards serious ordinary crimes. As a Judge of the ICC, I feel, however, duty-bound to point at least to the following: such an approach might infringe on State sovereignty and the action of national courts for crimes which should not be within the ambit of the Statute. It would broaden the scope of possible ICC intervention almost indefinitely. This might turn the ICC, which is fully dependent on State cooperation, in a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. Taken into consideration the limited financial and material means of the institution, it might be unable to tackle all the situations which could fall under its jurisdiction with the consequence that the selection of the situations under actual investigation might be quite arbitrary to the dismay of the numerous victims in the situations disregarded by the Court who would be deprived of any access to justice without any convincing justification.

by Julian Ku

Not a funny April Fool’s Day joke, although it sort of sounds like one. Any of our readers in Coffs Harbour, NSW, please check out your window and give the Australian Federal Police a hand.

THE Australian Federal Police are continuing to frantically search for an Australian accused of war crimes, after a five-year legal battle ended with the High Court ruling that an arrest warrant for him be reinstated and he be extradited to Croatia.

AFP officers this morning were again at Mr Dragan Vasiljkovic’s last known residence in the rural hilly rainforest of Boambee, near Coffs Harbour on the NSW central coast.

by Julian Ku

Interesting discussion of innovative ways to deal with Haiti’s long-term problems.  Haiti is very close to a failed state. So it’s time to think big. Here are four out of the box choices:  1) A New Haitian Constitution; 2) UN Trusteeship; 3) U.S. Protectorate; 4) U.S. annexation and status as a territory.  Read the whole article. I actually think that in a free and fair election, options 3 and 4 might prevail.  And I think option 4 might achieve the best results long term for Haiti.  But getting the U.S. Congress to agree, that’s another matter. In any event, I assume instead we’ll go with option 5): an almost-failed state propped up by tons of outside aid with no long term prospects of stability or growth.

by Julian Ku

This is not surprising, although I doubt they have much a legal basis to resist enforcement.

Ecuadorean officials are rejecting an international arbitration tribunal’s ruling that it violated international law and must pay $700 million to the ChevronCorp.

President Rafael Correa’s administration is analyzing options for appeal under national and international law, Attorney General Diego Garcia said in a statement Wednesday.

“This new effort to compromise the Ecuadorean state in its firm commitment to respect the independence of its judicial system … will not succeed,” Garcia said.

by Julian Ku

Add another African case to the ICC’s docket.

The International Criminal Court in The Hague, Netherlands, has given its prosecutor Luis Moreno Ocampo the green light to investigate the role of senior politicians in Kenya’s post-election violence that killed 1,300 Kenyans in 2008.

The decision allows Mr. Ocampo to take the next step, which would be passing down indictments against senior Kenyan politicians, some of whom are thought to be ministers and cabinet members in the powersharing government of President Mwai Kibaki and Prime Minister Raila Odinga.

by Julian Ku

Fascinating speech by Andrew Shapiro, Assistant Secretary for Political-Military Affairs at the U.S. State Department on U.S. government views on counter-piracy policy.  Of special interest, the U.S. may try changing the law on prosecuting pirates.  How exactly to do that is a bit unclear (treaty? custom?), but it seems like a promising avenue.  At least it is a new idea, something typically lacking in this area.

And while we will continue to pursue the 21^st Century solutions that Secretary Clinton has spoken about, we will also look to the past for ideas. For instance, the Danish-led working group is actively considering how to enhance the ability of states to prosecute attempt or conspiracy to commit piracy – those cases where we do not capture the suspects in the act of attempting to pirate a vessel but do encounter them laying in wait for their next victim ship with all the trappings of would-be pirates.
One way to do this might be to infer the intent to commit an act of piracy from the possession of piracy-related equipment and the circumstances in which the suspects are encountered. In the 19^th Century, states interested in combating the slave trade agreed that vessels found carrying specific “articles of equipment” used for the slave trade, such as shackles and handcuffs, could be declared evidence of a ship’s employment in the slave trade and, unless satisfactorily accounted for by the owner or master, could provide the necessary grounds for condemnation of the ship.
If we were to proceed by analogy in the present piracy context, perhaps states could agree that the mere possession of certain ladders, grappling hooks, and certain armaments at sea in an area known to be a high risk area for piracy attacks should be sufficient to establish intent to commit an act of piracy.