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POST WRITTEN BY: Walder Thame (J.D. ’16), Pace Law School

Sierra Leone was embroiled in an 11 year Civil War from 1991-2002 that began as rebel forces attempted to overthrow the government. The consequences were far-reaching and severe: There were deaths in the thousands, amputations, systematic rape, and destruction of homes as well as the forced relocation of thousands to neighboring countries. It was truly one of the most devastating events in modern history. War Don Don, one of the most riveting pieces of work I have seen, documented the trial and conviction of Issa Sesay, following the disarmament of the Revolutionary United Front (RUF) rebel group.

The movie depicted a thought provoking dynamic of the Special Court of Sierra Leone as it adjudicated crimes at the international level. For me, one of the most compelling parts of the film is the role of politics. As I watched, I started to think of the justice system in America, particularly the idea that the courts should be free of influence from other political branches and the notion that the accused should be afforded a fair trial. I don’t necessarily agree with the way justice was carried out in the trial of Sesay, who was the acting commander of the RUF, credited with ordering disarmament and restoring peace in the country.

My contentions rest primarily on the Special Court’s handling of the testimony proffered by prosecution witnesses and the manner in which the Special Court was organized. Some of the witnesses received monetary compensation and even relocation to first world countries for their testimony. I think the defense should have been allowed to inquire deeper into the possibility of bias, and the Court should have accorded weight to each witness’s testimony, based on that possibility. During the trial, defense counsel attempted to uncover bias but the Court stopped it. This I believe was an error since it can be assumed that those who were compensated for their testimony had everything to gain. Sierra Leone is one of the poorest countries in the world. Suffering is immense, food is scarce and prospects for the future are dim. Therefore, it is quite plausible that witnesses who testified had hidden agendas and as such an extensive defense inquiry should have been allowed.

Additionally, I believe that the organization of the Special Court was not ideal. I don’t think the hybrid model was the best way to decide this case. Not only was there destruction of lives and property, there was destruction of the human spirit as some of the survivors lost faith in the compassion of mankind. Based on the heinous nature of the crimes committed, I would expect the Special Court to be comprised solely of international judges. That was not the case however. Instead, as shown in War Don Don, the Court consisted of a mix of domestic and international judges and staff. Consequently, judges presiding over the proceedings had more likely than not first-hand experience or knew someone who was devastated by the alleged atrocities. Thus, I don’t think the defendant was given a fair trial because impartiality was severely compromised. After all, under the black robes and authoritative voices are regular people susceptible to the emotions stemming from great tragedy.

This is not to say that the Special Court lacked integrity or that the defendant was innocent. However, having a panel of international judges would have assured impartiality and increased the integrity of the Court’s decision. Additionally, I believe that the trial was not one marked by accuracy but rather a politically driven engine that desperately needed to hold someone accountable, anyone, even at the expense of not uncovering the whole truth.

POST WRITTEN BY: Sanjeevi Seshadri, 4th Year Candidate, Bachelor of Laws (Hons.) at National Law University, Delhi; and Kanwar Vivswan, 4th Year Candidate, Bachelor of Laws (Hons.) at National Law University, Delhi

Pace International Law Review is honored to feature State Dinners & Summons: Mr. Modi’s trip to New York from our guest bloggers Sanjeevi Seshadri and Kanwar Vivswan. Both Sanjeevi Seshadri and Kanwar Vivswan are from New Dehli, India and are 4th year candidates for Bachelor of Laws at National Law University in Delhi. Sanjeevi Seshadri hopes to pursue a career in litigation and is very interested in international investment law, international criminal law and the law of treaties. Kanwar Vivswan wishes to pursue a career at the UN and is interested in public international law, international environmental law and international law for protection of intellectual property. Theirpost, “State Dinners & Summons: Mr. Modi’s trip to New York,” looks at how summons was issued in September 25, 2014 by A New York Federal District Court pursuant to a complain by the American Justice Center, which sought compensatory and punitive damages for crimes against humanity, cruel and unusual punishment and other allegations perpetrated by Narendra Modi, the current Prime Minster of India. The post analyzes how the complainant has failed to establish that civil universal jurisdiction has the same scope as criminal jurisdiction in enforcing these international norms:

In 2005, the United States of America denied Mr. Modi a visa while he was the Chief Minister of Gujarat. Today, Mr. Modi is the Prime Minister of India and is a state guest of the United States, yet, he still faces challenges in the land of the free. A New York federal District Court issued a summons to Mr. Modi on September 25, 2014. The summons was issued pursuant to a complaint by the American Justice Centre [AJC], an American NGO, that sought compensatory and punitive damages for “crimes against humanity; cruel, inhuman, or degrading treatment or punishment; extrajudicial killing; wrongful deaths; negligence; public nuisance; battery; and intentional infliction of emotional distress” allegedly perpetrated by Mr. Modi.

The complainant states that under international law, Mr. Modi can be prosecuted for the said crimes in the U.S. under the principle of universal jurisdiction, whereby a state may exercise jurisdiction over serious crimes (such as genocide, torture and war crimes) even if there exists no connection, based on territory or nationality.

In this post, it will be argued that the complainant has failed to establish in the lawsuit whether civil universal jurisdiction (under which damages are being claimed in this case) has the same scope as criminal jurisdiction in enforcing these international law norms. In this regard, we argue that the summons against Mr. Modi is not sustainable under international law. . .

Take a moment to enjoy reading the full article State Dinners & Summons: Mr. Modi’s trip to New York. If you would like to contact the authors of this post, Sanjeevi Seshadri can be reached at seshadri.sanjeevi@gmail.com, and Kanwar Vivswan can be reached at Kvsingh92@gmail.com.

Image Source: Rediff News

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David Bergman was recently convicted on contempt charges by Bangladesh’s International Crimes Tribunal (ICT). Bergman was sentenced to a symbolic “simple imprisonment” and a fine of $56. The charges were out of comments he made in three different blog posts about cases that were before the ICT.  Specifically, the court looked at one blog post that questioned the number of dead in the 1971 war.  The court stated that the questioning of this number Some observers have estimated that the number could be anywhere between 300,000 to 3 million. The court found that Bergman’s questioning of the number of people killed to have no legitimate public interest. It further noted that, his questioning “disgraces and demeans the nation’s wishes and  holy emotion and that it was based on malicious intent designed to scandalize the court.” Human Rights Watch, Amnesty International, and the International Commission of Jurists obviously disagree. They do not take a position on how many people were killed but do state that the topic is something that all international criminal tribunals have to deal with and was completely legitimate for Bergman to question. The three groups have also raised concerns about the language of the opinion that gives the court broad discretion to keep prosecuting journalist for criticizing the ICT.

The ICT is meant to serve as a war crimes tribunal in Bangladesh. Its purpose is “to bring to account those responsible for grave violation of international law during the country 1971 war of independence.”  The ICT has used contempt of court proceedings against some of its critics. There have been concerns over the procedural aspects of the court including concerns about sours of law and rules of procedure. The conviction of Bergman is just another concern that has arisen. Many observers including Amnesty International, Human Rights Watch, and International Commission of Jurists are concerned that the conviction narrows the ability for outsiders to comment on the proceedings at the ICT. Richard Bennet, a director at Amnesty International, stated “Rather than respecting the right to freedom of expression, the ICT has used contempt of court proceedings against some of its critics, and those who are convicted have no right of appeal.” The decision is also in direct conflict with the International Covenant on Civil and Political Rights (ICCPR), which Bangladesh is a party to. The ICCPR states that all “branches of governmental authority, including the judiciary, must respect and protect freedom of expression. Any restrictions on free speech must be necessary and strictly proportionate to protect national security, public order, public health, morals, or the rights of others”.  It is really not clear here that Bergman’s blog posts affected national security, public order, public health, morals, or the rights of others has specifically stated by the ICCPR.

Should it be within the ICT, a war crime tribunal, jurisdiction to convict a journalist for his blog posts?

What should the international community do to prevent future journalist from being persecuted?

Source: http://www.hrw.org/news/2014/12/05/bangladesh-conviction-journalist-chills-speech

image: http://www.bdchronicle.com/detail/news/32/4627

Cambodia

The Cambodia government needs to take action and close all facilities arbitrarily holding “undesirables.” According to Human Rights Watch, the abusive nature of these centers was highlighted on November 26, 2014 when a man, Phea, who was arbitrarily detained and denied medical treatment, died at the Prey Speu center. On November 2, 2014, authorities brought Phea to the Prey Speu’s Po Senchey Vocational Training Center. According to Human Rights Watch: “Phea had been picked up during ‘sweeps’ by security forces in Phnom Penh to clear homeless people and others considered ‘undesirable’ off the streets prior to Cambodia’s traditional Water Festival being held on November 5-7. When the police took Phea off the streets he was seriously ill and was covered with infected wounds all over his body. However, the center staff made no efforts to provide him with any medical treatment and refused to take him elsewhere for treatment. He died on November 26, 2014 and the police made no investigations into his death.

According to the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that medical care and treatment shall be provided to detainees whenever necessary and free of charge. Whenever a person dies in detention, “an inquiry into the cause of death … shall be held by a judicial or other authority.” In addition, “[t]he findings of such inquiry … shall be made available upon request.”

The Cambodian government needs to take action to protect these vulnerable people. These centers need to be closed immediately because they are not providing individuals with medical treatment. Additionally, why has the Cambodian government not investigated the death of Phea? What do you think needs to be done? If the government does not close these centers what can be done to enforce the United Nations Body of Principles?

Naly Pilorge, the director of Licadho stated: “Keeping Cambodia’s detention centers open is an endless invitation to the authorities to violate the human rights of people deemed ‘undesirable.’ The systematic abuse of Cambodia’s most vulnerable people occurs at these centers and the government should close them immediately.” Do you agree? Why or why not?

Additionally, Licadho, Human Rights Watch, and other human rights organizations have documented torture and systematic cruel and inhumane treatment, as well as rapes, killings, and other abuses at the Prey Speu center since it became operational in 2004. So why has the Cambodian government failed to take action? How else can these organizations get the government to take action?

 

Source: Human Rights Watch

Image: WN.com

Tags: Cambodia, Cambodia Government, Human Rights Watch, Licadho, Naly Pilorge, Phea, United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Undesirables, Prey Speu’s Po Senchey Vocational Training Center

 

As if being a refugee wasn’t difficult enough, millions of Syrians now have the mystery of where there next meal comes from hanging over their head.  Earlier this week, the World Food Programme was forced to put on hold food vouchers for the Syrian refugees in Jordan, Lebanon, Turkey, Iraq and Egypt.  While a lack of food vouchers can never come at a good time, this is especially difficult as a fierce and cold winter approaches.

If the World Food Programme does not receive the necessary funding, it will affect both the refugees and the hosting nations.  While the hosting nations are crucial to the refugees, the loss in funding has lead to many pointing fingers, namely at donors, wealthier countries and the United Nations itself. The WFP pleads to the donors to stay true to their commitments and critics look to other countries to provide additional support both financially and as providing safe havens.

In hopes of providing support, the UN has asked the public to donate at least $1 to cover the $64 million needed by December to support the Syrian Refugees.  While appealing to the souls of the generous may provide some support, there still remains the question, why haven’t other countries opened their borders to these refugees? This question is posed mainly at the European Union member states, who have yet to host any refugees.  Many feel the refugees have set up base in “ill-equipped” countries.

At this point we must ask, what duty, legal or moral, do better equipped countries have to those in need?  This is a broad question that applies to many situations, but it also furthers the inquiry if support is to be provided, how much and what kind is appropriate?  Should there be protocol for this situations? Or do we have to rely on international and non-profit organizations to set the standards?

Sources: ABC, The Post, Maps.

 

THOMAS-LUBANGA

 

On December 1, 2014, the Appeals Chamber of the International Criminal Court (ICC) confirmed, by a majority, the verdict that declared Thomas Lubanga Dyilo guilty as well as the decision that sentenced him to 14 years of imprisonment. Mr. Lubanga was found by the Trial Chamber to be committing war crimes that consisted of enlisting and conscripting children under the age of 15 into the Patriotic Force for the Liberation of Congo (FPLC). He allegedly used these children to actively participate in hostilities of armed conflict between the times of September 1, 2002 through August 13, 2003. These offenses were found punishable under Article 8(2)(e)(vii) of the Rome Statute.

Article 8 of the Rome Statute states:

“(2) For the purpose of this statute, ‘war crimes’ means: (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.”

The Appeals Chamber explained in their decision that they only intervene in findings of the Trial Chamber if they were found to be “unreasonable.” They further went on to say that they deferred to the Trial Chamber’s conclusion after an assessment of the age of the child soldiers. The Trial Chamber’s findings were held to be reasonable. Therefore, every ground of appeal raised by the Defense was rejected, and the decision that established the 14 year sentence was confirmed.

The country in which Mr. Lubanga will be serving his sentence has yet to be determined. The Court decides where prison sentences will be served based off a list of States that have indicated to the Court their willingness to accept persons who have been convicted. Until the place is of his sentencing is determined by the Presidency of the Court, Mr. Lubanga will remain in the detention center in The Hauge.

The crimes that he committed are inexcusable, and in my opinion the sentencing should possibly have been longer. Children should not be put into situations that involve war; something needs to be done to show men like Mr. Lubanga that they cannot get away with crimes like these. Given that Mr. Lubanga will have served two thirds of his sentence by July 2015, and under the Rome Statute the Court shall review sentencing to determine whether it should be reduced after two thirds has been served, do you think the Court should reduce his sentence? Do you think that he has served enough time already in regards to the crimes that he committed? Or do you think that he should serve the entire 14 years?

Sources: ICC, The Prosecution v. Thomas Lubanga Dyilo

Photo: SABC News

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During an international conference on conventional weapons, countries agreed on November 14, 2014 to discuss concerns with fully autonomous weapons, also known as “killer robots.” There are currently 118 nations that are part of the Convention on Conventional Weapons (CCW) who agreed to reconvene at the United Nations in Geneva on April 13-17, 2015 to continue discussing issues raised earlier in 2014 on questions relating to “lethal autonomous weapons systems.” Although these weapons have not been created yet, with technology moving rapidly, this increases autonomy.

Mary Wareham, arms advocacy director at Human Rights Watch and coordinator of the Campaign to Stop Killer Robots stated, “By continuing talks, countries are acknowledging the many concerns raised by autonomous warfare, but the technology is moving faster than the international response.” Wareham suggested that a new international treaty should be created based on these discussions to make sure humans control their targeting and attack strategy decisions.

Parties to the CCW include countries known for their advancements in autonomous weaponry such as the United States, China, Israel, Russia, South Korea, and the United Kingdom. This Convention was adopted in 1980 and has five protocols, one of which is protocol IV that preemptively banned blinding lasers.

Human Rights Watch is addressing this issue as they are the co-founder of the Campaign to Stop Killer Robots, an international coalition of nongovernmental groups, which started in April 2013. Human Rights Watch is seeking a pre-emptive ban on weapons that would be able to select and attack targets without any human intervention.

Do you think there should be a pre-emptive ban on weapons such as “killer robots” that could attack and select targets without any human intervention? Should a new international treaty be developed to stop these types of weapons? How should the rapid growth in technology factor into this debate?

Source: Human Rights Watch 

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Next on the list: Iran. On December 3, Iran, just like the United States and its coalition of allies, launched airstrikes on ISIS in Iraq; in other words, they joined in on the fight against ISIS. What is Iran’s main reason for joining the fight? Iran’s position is religion; whereas, it’s underlying interest (just like all parties involved in Iraq) is oil. For centuries, Iran and Iraq have consistently been at odds because of their religious differences and geographic proximities; Iran is dominantly Shiite and Iraq is dominantly Sunni. Iran, being the dominant Shiite power in the Middle East, is scared of ISIS’s  extremist militant power if they were to take control of the country. As ISIS’s war wages closer to the borders with Iran, extremist state militants could endanger Iran’s security, including its oil riches. A recent study conducted by the International Energy Studies, a government research center, concluded that a “threat of ISIS’s advancement to Iran’s borders [will lead to a] possible disruption in oil fields production and development in western Iran.”

Similarly, the Kurds, who have been the target of a systematic cleansing, have been strategically designated as the newest crutch to the current Iraqi government. What was the deal breaker that ended years of political deadlock? Oil! The pact was based on the sharing of oil and the country’s national budget.  Conveniently, the Kurds, currently residing in the North of Iraq, also sit on a large oil bank. For this reason, the Iraqi government will get to export the oil in the Kurdish territory, in exchange for the availability of resources. This new relationship will also lead to a coalition against ISIS.

In conclusion, what does the US, the French, the Australians, the British, the Canadians, the Danish, the Belgians, the Dutch, the Saudi Arabians, the Emiratis, the Jordanians, the Bahrainis, the Kurds and the Iranians all have in common? They are all partaking in the fight against ISIS. Interesting how politics always has a different agenda, never taking into consideration society and media’s accentuating disparities between different religions and polar opposite governments. Iran’s attack on ISIS shows their regional strength and dominance, but also highlights common loopholes that exist in the world as we know it, bringing together two countries who have consistently been at odds since 1979. Each country’s political agenda is driven by resources, most importantly access to oil and water. If only we were to unite over a more common goal. I leave you with one last question: are the enemies of your enemies, your friends?

Sources: L’Orient Le Jour

Image Source

South Ossetia

 

South Ossetia is a small territorial nation, located between North Ossetia and Georgia. Until 1990, South Ossetia was officially part of Georgia but after years of violent conflict between Ossetians and Georgians, South Ossetia declared independence from Georgia and formed the Republic of South Ossetia. However, today South Ossetia exists in limbo among the international community as a de facto state.

By definition a de facto state is a geographical and political entity that has all the features of a state, but remains illegitimate in the eyes of the international society. Most de facto states generally arise from irreconcilable internal conflicts within a mother state and result in a portion of the population declaring independence and seceding from the mother state. Since many de facto states arise out of aggression and internal conflict, social instability tend to continue within the de facto state. Thus, many civilians within the de facto state are subject to violence and segregation.

Under the Montevideo Convention, in order for a state to be recognized as an independent, legal state and recognized among the international community it must meet four criteria; that is it must have a permanent population, a defined territory; a government; and the capacity to enter into relations with the other states.

In accordance with the Montevideo Convention, South Ossetia has met all four requirements of state recognition. In 2008, after the Russia-Georgia War, Russia and a few other nations, including Nicaragua and Venezuela, have recognized South Ossetia as independent state. However, the rest of the international community refuse to recognize South Ossetia as an independent state. Without recognition as an independent state, a de facto state suffers major social, political, and economic setbacks. For example, South Ossetia receives very little humanitarian aid from other nations, including the United States. Meanwhile, violent conflict between Ossetians and Georgians still continues today creating increased instability in South Ossetia socially and politically.

Do you think the international community should recognize South Ossetia as an independent state? Would it not serve the best humanitarian interests if they were recognized as an independent state?

Sources:

Jonte van Essen, De Facto Regimes in International Law, Utrecht Journal of International and European Law (Merkouris 2012).

Thomas D. Grant, Defining Statehood: The Montevideo Convention and Its Discontents, 37 Colum. J. Transnat’l L. 403, 457 (1999).

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On December 2, 2014, the European Court of Human Rights decided the case of Mr. Battista, holding that there was a violation of his freedom to travel abroad when his passport was invalidated due to his failure to pay child support.

In August 2007, Mr. Battista was denied a new passport that included his two children, because he failed to make all of his child support payments since the separation from his wife. The guardianship judge denied the passport request stating that, Mr. Battista he would think less of his obligation to pay child support if he could travel abroad.  In October 2007, Mr. Battista was ordered to hand in his passport to the Naples Police Commissioner for the invalidation his identity card for foreign travel. Mr. Battista was denied the issuance of a new passport for his continued failure to pay child support.

In August 2012, Mr. Battista request to issue new passports for his children was denied by the guardianship judge, because the separation proceedings were still ongoing and the children still lived with his wife, who objected to the issuance of new passports for the children.

Mr. Battista claimed a violation of Article 2 (freedom of movement) and Article 8 (right to respect for private and family life) of the European Court of Human Rights. It was additionally argued that there was no statutory law that prevented parents who failed to pay child support to have their child’s name added to the parent’s passport.

The European Court of Human Rights held that there was a violation of Article 2 due to the legal means available to recover child support debts outside of the national borders. Additionally, the invalidated passport was subjected to an indefinite duration, without looking at the individual circumstances.

Do you agree with the decision of the Court? Would the dire need of child support, by the wife to support her children, change the outcome?  Do you think there should be a law that prohibits the travel abroad for a failure to pay child support?

I agree with the Court’s decision and do not think that one may be to denied the right to move across borders under these circumstances. While I see the argument, I do not think there is a valid reason to rescind a passport for an indefinite time period. The guardianship judge should have factored in the individualized family circumstances and financial ability, while maintaining the best interests of the children.

Source: European Court of Human Rights

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