Friday, November 30, 2007
... 1957 (50 years ago today), Margaret Spellings (right) was born in Michigan, where she lived until age 3, when she and her family moved to Houston, Texas. A political science graduate of the University of Houston, she worked for 6 years as an educational aide to then-Governor George W. Bush. Moving to Washington after his election as President, "she helped create the No Child Left Behind Act and crafted policies on education, immigration, health care, labor, transportation, justice, housing, and other elements of the President's domestic agenda," before becoming Secretary of Education in 2005. Spellings is the 2d woman to lead the Department; the 1st was Shirley Hufstedtler (left), who resigned a federal appellate judgeship to become the 1st person to hold the Cabinet-level post, from 1979-1981.
... 1946, U.S. Rep. Barbara Cubin (R-Wyo.) was born in Salinas, California.
Thursday, November 29, 2007
ROMNEY: Well, he certainly is an expert and I certainly would want to get his counsel on a matter of this nature, but I do not believe that as a presidential candidate, it is wise for us to describe precisely what techniques we will use in interrogating people.
I oppose torture. I would not be in favor of torture in any way, shape or form.
COOPER: Is waterboarding torture?
ROMNEY: And as I just said, as a presidential candidate, I don't think it's wise for us to describe specifically which measures we would and would not use.
And that is something which I would want to receive the counsel not only of Senator McCain, but of a lot of other people.
And there are people who, for many, many years get the information we need to make sure that we protect our country.
And, by the way, I want to make sure these folks are kept at Guantanamo.
I don't want the people that are carrying out attacks on this country to be brought into our jail system and be given legal representation in this country.
I want to make sure that what happened ...
... to Khalid Sheikh Mohammed happens to other people who are terrorists. He was captured. He was the so-called mastermind of the 9/11 tragedy. And he turned to his captors and he said, "I'll see you in New York with my lawyers." I presume ACLU lawyers.
Well, that's not what happened. He went to Guantanamo and he met G.I.s and CIA interrogators. And that's just exactly how it ought to be.
COOPER: Senator McCain?
(Unknown): There were reports Khalid Sheikh Mohammed was waterboarded.
McCAIN: Well, governor, I'm astonished that you haven't found out what waterboarding is.
ROMNEY: I know what waterboarding is, Senator.
McCAIN: Then I am astonished that you would think such a -- such a torture would be inflicted on anyone in our -- who we are held captive and anyone could believe that that's not torture. It's in violation of the Geneva Convention. It's in violation of existing law...
And, governor, let me tell you, if we're going to get the high ground in this world and we're going to be the America that we have cherished and loved for more than 200 years. We're not going to torture people.
We're not going to do what Pol Pot did. We're not going to do what's being done to Burmese monks as we speak. I suggest that you talk to retired military officers and active duty military officers like Colin Powell and others, and how in the world anybody could think that that kind of thing could be inflicted by Americans on people who are held in our custody is absolutely beyond me.
COOPER: Governor Romney, 30 seconds to respond.
ROMNEY: Senator McCain, I appreciate your strong response, and you have the credentials upon which to make that response. I did not say and I do not say that I'm in favor of torture.
I am not. I'm not going to specify the specific means of what is and what is not torture so that the people that we capture will know what things we're able to do and what things we're not able to do. And I get that advice from Cofer Black, who is a person who was responsible for counterterrorism in the CIA for some 35 years.
I get that advice by talking to former generals in our military...
ROMNEY: ... and I don't believe it's appropriate for me, as a presidential candidate, to lay out all the issues one by one...
ROMNEY: ... get questioned one by one: Is this torture, is that torture?
COOPER: Senator McCain...
ROMNEY: And so, that's something which I'm going to take your and other people's counsel on.
COOPER: Senator McCain, 30 seconds to respond.
McCAIN: Well, then you would have to advocate that we withdraw from the Geneva Conventions, which were for the treatment of people who were held prisoners, whether they be illegal combatants or regular prisoners of war. Because it's clear the definition of torture. It's in violation of laws we have passed.
And again, I would hope that we would understand, my friends, that life is not "24" and Jack Bauer.
Life is interrogation techniques which are humane and yet effective. And I just came back from visiting a prison in Iraq. The Army general there said that techniques under the Army Field Manual are working and working effectively, and he didn't think they need to do anything else.
My friends, this is what America is all about. This is a defining issue and, clearly, we should be able, if we want to be commander in chief of the U.S. Armed Forces, to take a definite and positive position on, and that is, we will never allow torture to take place in the United States of America.
... 1890, Japan's Meiji Constitution was implemented nationally, as the parliament it authorized, known as the Imperial Diet, held its very 1st session in Tokyo. Its 1st building soon burned down, so that within a year the Diet was meeting in the building depicted in the tapestry at right.
Wednesday, November 28, 2007
The Prosecution had requested France to proceed pursuant to Rule 11bis of the ICTR Statute, which reads in operative part:
(A) After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the president may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State:
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately prepared to accept such a case,
so that those authorities should forthwith refer the case to the appropriate court for trial within that State.
Rule 11bis was passed by the Tribunals’ judges to help facilitate the two ad hoc Tribunals’ Security Council-mandated Completion Strategies. U.N. Security Council Resolution 1503 (2003) required the ICTR to formulate a strategy to transfer cases involving lower-level accused to competent national jurisdictions. Subsequently, U.N. Security Council Resolution 1534 (2004) called on the ICTY/R prosecutors to review their respective case loads
These are not the first such referral efforts from the ICTR. Indeed, the Rwandan Rule 11bis proceedings have been plagued by a series of legal snafus that reveal that the international community has not yet developed a seamless system of international justice. Last year, the ICTR denied a referral of Michel Bagaragaza (right) to a domestic forum whose operative penal code lacked the particulars of international crimes, even where the underlying conduct was considered criminal. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision On The Prosecution Motion For Referral To The Kingdom Of Norway (May 19, 2006). Norway had enacted a general penal provision providing for the assertion of jurisdiction over some crimes (including murder) when committed by a foreigner, provided that the prosecution was authorized by the king. The maximum penalty available under Norwegian law was 21 years. In its submission to the ICTR in support of the proposed referral, Norway explained that in ratifying the Genocide Convention, its Parliament considered it unnecessary to enact implementing legislation as all of the conduct prohibited under the Convention was already criminal under existing provisions of its criminal law. Proof that the defendant was acting with genocidal intent would operate as an aggravating factor at sentencing.
with a view to determining which cases should be proceeded with and which should be transferred to competent national jurisdictions.
In denying the referral, the Trial Chamber acknowledged that although Norway could lawfully exercise extraterritorial jurisdiction over the defendant, it lacked full jurisdiction within the meaning of Rule 11bis, which requires a showing of jurisdiction ratione materiae (subject matter jurisdiction), ratione personae (jurisdiction over the person), ratione loci (territorial jurisdiction), & ratione temporis (temporal jurisdiction). The Trial Chamber found that without a penal provision on genocide, the requisite legal framework did not exist to properly prosecute the conduct of the accused and accord an appropriate punishment based upon the charges pending before the Tribunal. In this regard, the Trial Chamber considered the adjudication of the defendant’s specific intent to commit genocide to be crucial in any subsequent domestic prosecution. A prosecution for mere homicide would not, in the Trial Chamber’s estimation, give
Bagaragaza’s alleged criminal acts … their full legal qualification under Norwegian criminal law.Id. at para. 16.
On interlocutory appeal, the Prosecution argued that it was enough to show that the defendant would be prosecuted for the underlying conduct, even if the crime to be charged did not contain legal elements identical to the crimes within the ICTR Statute. For support, the Prosecution noted that Rule 11bis concerns the referral of a “case” and not a “crime.” The Appeals Chamber disagreed, noting that the prohibitions against homicide and genocide protect different values:
[t]he penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.Although the Appeals Chamber acknowledged that its ruling would impact the ability to make further referrals, it remained convinced that it could not
sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law.Id. at para. 18.
The Prosecution subsequently amended the Indictment to include charges of war crimes as alternative counts. Eventually, the ICTR referred Bagaragaza’s case to the Netherlands, which indicated that it could prosecute the defendant for the charged crimes under the War Crimes Act of 1952 and the Genocide Convention Implementation Act of 1964, although some open questions remained regarding jurisdiction rationae personae. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, at para. 12 (April 13, 2007). A Dutch court subsequently ruled, however, that the Genocide Implementation Act was inapplicable, because it allowed for the exercise of universal jurisdiction only where a case was transferred to the Netherlands from another jurisdiction in conformity with the Dutch Criminal Code, which requires a treaty basis for transfer from a “foreign state.” Id. at para. 22. Accordingly, the Prosecution’s request for referral was withdrawn and Bagaragaza was returned to custody in Arusha, notwithstanding that his security was in jeopardy as a result of his cooperation with the Prosecution. He has languished in detention in Arusha ever since. Referral to Rwanda has been foreclosed out of concerns for due process and the possibility of the death penalty there.
Referrals to Bosnian domestic courts have been somewhat smoother. Also over the Thanksgiving holidays, the Appeals Chamber for the Bosnian War Crimes Chamber affirmed the 34-year sentence of Gojko Jankovic (left). The case came to the Bosnia special court via a prosecution request for referral from the International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY had charged Jankovic with torture and rape as both crimes against humanity and war crimes. In considering the Prosecution’s referral motion, which the defendant opposed, an ICTY Referral Bench ruled that both the criminal code of the former Yugoslavia (which was in place when the defendant acted) and the new criminal code of Bosnia-Herzegovina (which was enacted after the defendant acted) contained provisions allowing for his prosecution for war crimes. See Prosecutor v. Jankovic, Case No. IT-96-23/2-PT, Decision on Referral of Case (July 22, 2005). The Bosnian code also codified crimes against humanity and the doctrine of superior responsibility. Id. at paras. 28-30. The Bench ruled that referral was appropriate and that it was for the domestic courts to decide which penal code was applicable. Id. at para. 41. The final sentence was the longest awarded by the special War Crimes Chamber to date.
These cases reveal that while many states are codifying international crimes in connection with their ratification of the ICC Statute and their Chapter VII obligations to cooperate with the two ad hoc Tribunals, there are still a number of bugs to be worked out before we have a seamless regime of jurisdictional competency.
... 1919, the woman who'd been born Nancy Witcher Langhorne 40 years earlier in Danville, Virginia, but who's known now, on account of her 2d marriage, to millionaire Waldorf Astor, as Lady Astor, became the 1st woman elected to a seat that she would assume in the House of Commons. In so doing she assumed the seat of her husband, who'd moved on to the House of Lords. She was not the 1st woman ever elected to Britain's legislature, however; that honor belongs to the Countess Constance Markiewicz, inspiration of IntLawGrrls' own Fiona de Londras. As we've posted, Markiewicz refused to swear the oath of allegiance required in order to take the seat to which she'd been elected in 1918. Lady Astor (1923 illustration at right by John Singer Sargent), who served as a Conservative MP till 1945, was no shrinking violet either, as these quips of hers demonstrate:
The main dangers in this life are the people who want to change everything or nothing.
I knew what kept me going -- I was an ardent feminist. I always knew we had more moral strength. I once said in the House: We've got moral strength and you've got immoral strength.
People who talk about peace are very often the most quarrelsome.
My vigor, vitality, and cheek repel me. I am the kind of woman I would run from.
Tuesday, November 27, 2007
... 1963, the Convention on the Unification of Certain Points of Substantive Law on Patents for Invention was signed in Strasbourg, France. Number 47 in the European Treaty Series of the Council of Europe, this Strasbourg Patent Convention, which entered into force on August 1, 1980, helped harmonize patent laws throughout the region.
Monday, November 26, 2007
Earlier in the week, in Maryland, the NAACP had called for a moratorium on use of the weapons. And in the last month and a half 8 persons, in Poland, Canada, and the United States, have died after police used Tasers on them. The manufacturer, which offers cybersurfers a "virtual tour" of the TaserX26 (above), maintains that the deaths were caused by pre-existing medical problems, and not by "the low-energy electrical discharge of the Taser" of its product; to this, CBS News retorted: "That's 50,000 volts."
The recent fatalities did not directly give rise to the declaration that Taser use constitutes torture; rather, that occurred in Concluding Observations of the Committee Against Torture after reviewing the 4th periodic report of Portugal, which has bought the weapons for its police forces. According to a U.N. release, when an expert "reiterated concern" about this, the state party responded as follows:
Portugal strictly observed the principles of proportionality and reasonableness in the police use of firearms, and existing rules on coercive measures would continue to apply. Twenty taser weapons had been bought and they would only be issued to very specific units dealing with the most serious crimes where there was danger to human life. Prison security services were still evaluating the specific controls that would apply to the use of these weapons. All use of firearms was governed by strict procedures. There had been recent evaluations by the Inspectorate General of Internal Administration and the police were strongly discouraged from using firearms in car chases.
Portugal seems to be following a global trend: in addition to the countries named above, the same weapon already is used by "some 3,000 police officers and gendarmes in France," and expansion of its use to thousands more is contemplated.
Portugal's assurances apparently did not impress Committee experts, however. Page 4 of its Concluding Observations, by my translation from the French, the only version yet available on the web, states:
Utilization of "TaserX26" weapons
14. The Committee is greatly concerned about the State party's recent acquisition of "TaserX26" electric weapons, to be distributed to the Lisbon Metropolitan Command, the Intervention Corps, the Special Operations Group, and the Personal Security Corps. The Committee is worried that the use of these weapons provokes an acute pain, constituting a form of torture, and that in certain cases, it could even cause death, as has been revealed in reliable studies and by recent, actual events.
The Committee then expressly invoked 2 articles of the Convention Against Torture, concluding ¶ 14 in boldface, as follows:
The reaction of Portugal -- not to mention other states parties to the Convention -- to this exhortation to abandonment of the weapon remains to be seen.
The State party ought to consider renouncing the use of "TaserX26" electric weapons, the consequences of which to the physical and mental state of targeted persons could be of a nature that violates Articles 1 and 16 of the Convention.
► Role of national legislatures and policy-making in the making and reception of international lawPreference'll be given to scholars "in the early stages of their careers ... who have not had opportunities to present at an international conference," as well as "to innovative and cutting edge proposals related to" the overall theme. Accepted papers will be presented at a September 2008 conference at the University of Alberta, Edmonton, Canada, and likely published in that school's law review. Check out details here asap; deadline's in just a couple weeks: December 14, 2007.
► Governance of international organizations
► Democratic accountability in the development of trade and investment law
► Application of international human rights and humanitarian law in the context of terrorism
► Internationalization of criminal law
... 1953, U.S. Rep. Shelley Moore Capito (R-W.Va.) was born in Glen Dale, West Virginia.
... 1949, in the name of "the people," a Constituent Assembly adopted a Constitution of India, established, according to the preamble, as a "sovereign socialist secular democratic republic" dedicated to "secur[ing] to all its citizens" justice, liberty, equality, and fraternity.
Sunday, November 25, 2007
(Title credit: Mary McCarthy, The Group, 1966 movie with all-star cast.)
... 1981, "[w]omen's activists" began marking this date "as a day against violence." The day was chosen to commemorate "the brutal assassination in 1960" of Patria, Minerva, and Maria Teresa Mirabal and their driver, Rufino de la Cruz. The 3 sisters, part of a family of political activists in the Dominican Republic, were killed "on orders of Dominican ruler Rafael Trujillo." In 1999, November 25 was officially proclaimed by the U.N. General Assembly as the International Day for the Elimination of Violence against Women (below).
Saturday, November 24, 2007
While awaiting Emmanuel's trial in Miami, also set to begin early next year, check out this commentary comparing the anti-vagueness arguments that U.S. Department of Justice attorneys made in Emmanuel with the pro-vagueness arguments their superiors've made in the course of the post-9/11 campaign against terrorism (arguments recently echoed, in defense of the testimony of newly inaugurated U.S. Attorney General Michael B. Mukasey, by former Mary Jo White (above left, a Manhattan-based former U.S. Attorney). Author of the critique is Elizabeth de la Vega (right), whose 20-plus-year career as a federal prosecutor included membership on the Organized Crime Strike Force and heading the San Jose branch of the Office of the U.S. Attorney.
... 1961, in Resolution 169, the U.N. Security Council announced its "deep regret and concern" respecting "human rights violations" and the "general absence of the rule of law" in Congo, and urged convening of the Parliament and reorganization of the armed forces so that they might be "brought under discipline and control."
Friday, November 23, 2007
... 1987 (20 years ago today), the United Nations opened its files on war crimes to a member state for the 1st time, and investigators from the U.S. Department of Justice immediately began examining the records. "Access to the records had become a matter of dispute since the disclosure last year that former Secretary General Kurt Waldheim, now the President of Austria, was listed in a closed file that contained allegations against him" respecting his till-then hidden service as a Nazi intelligence office. Waldheim died in June of this year. (1978 photo of Waldheim visiting U.N. peacekeepers from Norway, stationed in Lebanon, courtesy of the United Nations)
... 1955, U.S. Sen. Mary Landrieu (D-La.) was born in Arlington, Virginia.
Thursday, November 22, 2007
Recalling the campaign that's used op-eds, mailings, and even a movie, "Blood Diamond," to raise public awareness of the link between those glittering gems and the gore of civil war, the Times' editorial joins a call to boycott jewels exported by the military regime in the country it names as Myanmar but that others still call Burma. (IntLawGrrls posts here, here, and here.) The Times writes of these "repression rubies":
Myanmar's leaders are unlikely to make real reforms unless they feel a real financial sting. More than 90% of the world's rubies originate in Myanmar, where the junta controls most mines. Most of the gems are bought by Asian merchants, but they are then cut, polished and sold to merchants around the world. Though the United States forbids direct gem imports from Myanmar, they can be sold here if they're processed in a third country. There are three bills in Congress to close that loophole, and leaders in the House and Senate should expedite them. The European Union is also considering its own crackdown on gems from Myanmar.
Credit the Times' call to this release from Human Rights Watch, which, like the Times, notes that high-end retailers like Tiffany & Co., Bulgari, and Cartier already have joined the boycott.
... 1967 (40 years ago today), at U.N. headquarters, was adopted Security Council Resolution 242 setting out a framework for peace in the Middle East. Components included "[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict," respect for sovereignty on the parts of all, and "just settlement of the refugee problem."
Wednesday, November 21, 2007
Connie's contribution is International Human Rights Law (2007).
Along with co-author David Weissbrodt, she's produced what the publisher, University of Pennsylvania Press, calls "a comprehensive introductory treatise, intended for all concerned about this critical area of international law, including students, lawyers, other advocates, teachers, and academics." Within the book's 3 sections may be found:
You go, 'Grrl!
► Discussions of the development of human rights as a field within international law;
► Summaries of each rights set forth in the Universal Declaration of Human Rights and subsequent instruments; and
► Examination of national, regional, and international implementation processes.
... 1967 (40 years ago today), at a press conference, Gen. William Westmoreland, the U.S. commander in Vietnam, assured the public regarding an intervention that had begun 2 years earlier:
I am absolutely certain that whereas in 1965 the enemy was winning, today he is certainly losing.
Tuesday, November 20, 2007
Eventually enveloping 5 of the contenders for the Democratic nomination, the discussion began when the moderator, Wolf Blitzer, questioned the call of Gov. Bill Richardson (New Mexico) (left) to cut off military aid to Pakistan unless its President, Gen. Pervez Musharraf, moves "to restore the constitution, take off his military uniform, end the national state of emergency and have free and fair elections." Here's the response:
Asked "to weigh in," former Sen. John Edwards (North Carolina) dodged the human-rights-versus-national-security dichotomy posited, and so in turning to Sen. Barack Obama (Illinois) (right), the moderator homed in on that question:
RICHARDSON: ... [W]hat happened with our Pakistan policy, we got our principles wrong. ... [W]e said to Musharraf: 'You know, Musharraf, security is more important than human rights.' If I'm president, it's the other way around -- democracy and human rights. ...
BLITZER: What you're saying, Governor, is that human rights, at times, are more important than American national security?
RICHARDSON: Yes, because I believe we need to find ways to say to the world that, you know, it's not just about what Halliburton wants in Iraq. It's also about our values of freedom, equality. Our strength is not just military and economic. ... Our strength as a nation is our values: equality ... freedom, democracy ... human rights.
BLITZER: ... [I]s human rights more important than American national security?
OBAMA: The concepts are not contradictory, Wolf.
BLITZER: Because occasionally, they could clash.
OBAMA: They are complementary. And I think Pakistan is a great example. Look, we paid $10 billion over the last seven years and we had two goals: deal with terrorism and restore democracy. And we've gotten neither. ... Pakistan's democracy would strengthen our battle against extremists.
The more we see repression, the more there are no outlets for how people can express themselves and their aspirations, the worse off we're going to be, and the more anti-American sentiment there's going to be in the Middle East. We keep on making this mistake. ... And that's going to make us less safe.
Then it was the turn of Sen. Christopher Dodd (Massachusetts) (left):
BLITZER: What is more important, human rights or national security?
DODD: Obviously, national security, keeping the country safe. When you take the oath of office on January 20, you promise to do two things, and that is to protect and defend the Constitution of the United States and protect our country against enemies both foreign and domestic. The security of the country is number one, obviously.
Finally, the moderator turned from Dodd to Sen. Hillary Clinton (New York) (left):
BLITZER: You say national security is more important than human rights. Senator Clinton, what do you say?A few comments about this colloquy.
CLINTON: I agree with that completely. The first obligation of the president of the United States is to protect and defend the United States of America. That doesn't mean that it is to the exclusion of other interests.
And there's absolutely a connection between a democratic regime and heightened security for the United States. That's what's so tragic about this situation. After 9/11, President Bush had a chance to chart a different course, both in Pakistan and in Afghanistan, and could have been very clear about what our expectations were.
1st, there's the matter of the President's oath, which both Dodd and Clinton misremembered. See below.
2d, there's cause to be disturbed in the degree to which some contenders acceded to the moderator's insistence that "human rights" and "American national security" are at odds with each other, that they "clash" in a manner that demands abstract prioritization of one over the other. Seemed clear to him, at least, that "American national security," standing alone, is the lone right answer. Little need, then, to consider precise context, let alone the security of other states, let alone the security of humanity as a whole. To be commended are those who said otherwise -- who resisted playing the moderator's zero-sum game and instead suggested that in the reinforcement of human rights may be found national security and that, conversely, national security ought to encompass human rights.
Only by acknowledging the complexity of the contemporary world can America's leaders hope truly to improve it.
Appears they got confused with the oath of the U.S. Senate, the legislative chamber in which both serve:
I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
... 1949, U.S. Rep. Thelma D. Drake (R-Va.), was born in Elyria, Ohio.
... 1945, at 10 a.m., what would come to be called the Trial of the Major War Criminals opened before the International Military Tribunal at Nuremberg. Defendants were 20 leaders of Nazi Germany. As described by the New York Times:
The entire day was devoted to the reading of the lengthy charges and bills of particulars to which the defendants will plead tomorrow. Dramatic despite their familiarity and inevitable repetition, these documents reviewed the whole bloody annals of World War II, reviving for many auditors the stunned horror with which the peaceful nations reacted to the news of German atrocities. Statistics attested to the facts and staggering totals were piled up to challenge the defendants' future declarations of innocence.
Monday, November 19, 2007
Views from elsewhere:
Of the 47 states comprising the Council of Europe, 46 have ratified Protocol No. 6 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, which abolishes the death penalty in nearly all circumstances (Russia's the lone holdout). Nearly all are states parties to Protocol 13, which puts a total ban on the penalty. Ratification of similar treaties in other regions, such as the inter-American system, is less consistent. Last week, as our Opinio Juris colleague Kevin Jon Heller posted, the Third Committee of the U.N. General Assembly's given its support, by a vote of 99 "yes," 52 "no," 33 "abstain" -- to a draft resolution calling for abolition of capital punishment. For news media at home and abroad, the United States' opposition to the draft was taking "sides with Iran and Sudan"; it was, in the rough words of Der Spiegel, "in bed with dictators."
It's against this backdrop that U.S. discussion's heating up at 2 different sites:
1st is the U.S. Supreme Court. It's considering the constitutionality of the methods that states use to execute condemned persons by lethal injection, the means employed in nearly every state that retains the death penalty. Oral argument will take place on January 7, 2008, in Baze v. Rees, the case whose pendency appears to have effected a de facto national moratorium on executions, although on a case-by-case rather than across-the-board basis. (Nor may this be the Court's only opportunity to mull the death penalty this Term. The Court likely soon will consider a petition to review a challenge to a state law authorizing execution as punishment for a nonfatal sexual assault on a child, Kennedy v. Louisiana, according to a SCOTUSblog report.)
2d is the American Law Institute, an association of lawyers, judges, and academics devoted to the study and drafting of law-reform measures. A current project involves revisions in the sentencing provisions of the Model Penal Code that ALI promulgated in 1962. Inclusion in the Code of a detailed framework for adjudicating the death sentence had the unintended effect of legitimating the decision of some U.S. states to retain rather than abolish the punishment, as Professor Franklin E. Zimring's detailed in The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code. Last spring, 2 other ALI members, Professors Ellen S. Podgor and Roger S. Clark, moved to have ALI state its opposition to capital punishment. Their motion sparked further debate, in the form of: a report from an Ad Hoc Committee on the possibility of future study of the death penalty, in a project separate from the sentencing project now under way; and, from now through this Sunday, November 25, conduct of an online forum on what to do next. Several ALI members already have weighed in on various sides, among them IntLawGrrls Elizabeth Hillman, Mary Coombs (our alumna), and yours truly. If you're an ALI member who hasn't yet done so, log on and add your 2¢ here.
Sunday, November 18, 2007
... 1993, nearly 2 dozen leaders, among them F.W. de Klerk and Nelson Mandela, gave approval to a new South African Constitution. Containing an expansive Bill of Rights and providing for an end to apartheid-created "homelands" after the holding of elections in spring 1994, that document has been named an IntLawGrrls Legal Wonder of the World. (Still welcoming Legal Wonder nominees, incidentally.)
Saturday, November 17, 2007
Thus it is all the more noteworthy that discrimination against Roma in the Czech Republic provided the occasion for this week’s historic judgment by the European Court of Human Rights (ECHR). In the Case of D.H. and Others v. the Czech Republic the Court’s Grand Chamber ruled on November 13, 2007, that Czech Roma have suffered unlawful discrimination in relation to education, a violation of the European Convention on Human Rights and its Protocol No. 1. (Proud disclosure: My colleagues at the Open Society Justice Initiative, James Goldston and Anthony Lester, were lead attorneys in the case.)
The decision marked a watershed in anti-discrimination law in Europe. For the first time, the ECHR found that a pattern of racial discrimination in primary education, in this case resulting in an especially pernicious form of segregation, violated the anti-discrimination provision of the European Convention.
Like many countries in Central and Eastern Europe, the Czech Republic has diverted an astonishingly large percentage of Romani children to "special schools"—schools for children with mental disabilities. The applicants in D.H. v. Czech Republic came from the Czech town of Ostrava, where at the time of one survey Romani children represented only 2.26% of pupils in primary school—yet constituted 56% of pupils placed in special schools. Every way you come at the numbers, they tell a devastating story. Here’s another cut: More than half of Ostrava’s Romani children were assigned to special schools, compared to 1.8% of non-Romani students. And another: Romani children in Ostrava were at the time of one study 27 times more likely to be shunted off to special schools than non-Roma. (photo of Ostrova family courtesy of New York Times)
The facts that gave rise to this week’s ruling should, proverbially, speak for themselves. Yet they were not enough to persuade a seven-judge Chamber of the ECHR, which had rendered judgment against the applicants in the same case in February 2006.
The Grand Chamber, in contrast, saw the problem and, along the way, brought European Convention law in line with the more protective anti-discrimination standards enforced by the European Union. Among other notables, this week’s decision affirmed in clarion terms that indirect discrimination—discrimination resulting from a harmful and disproportinate impact on a particular group despite the apparently neutral terms of a policy—is prohibited by the European human rights convention. And, the Grand Chamber affirmed, it isn’t necessary to prove discriminatory intent on the part of government authorities to find that an official policy produces unlawful indirect discrimination.
Recognizing how hard it can be to prove discrimination that is camouflaged by seemingly neutral rules, the Grand Chamber helpfully clarified what it takes to make a case: Although statistical data are not a necessary form of proof, “statistics which appear on critical examination to be reliable and significant will be sufficient to constitute . . . prima facie evidence” of indirect discrimination.
Implementing this week’s ruling will surely be as daunting as the eight-year legal odyssey that culminated in the ECHR’s breakthrough judgment. As the Grand Chamber recognized, the Czech Republic is hardly alone in its practices, and the discrimination against Roma that pervades the societies in which they live is so ingrained it can be hard even to see. (So perhaps it is not surprising that the lawyers who mounted the Czech government’s defense in Strasbourg tried to defend Ostrava’s segregated education by blaming Romani parents.) Now, though, Roma have the powerful shield of European human rights law on their side.
... 1997 (10 years ago today), more than 60 tourists were killed while visiting the temple of Hatshepsut in Luxor, a town in southern Egypt. Half a dozen gunmen were killed at the time, and several other persons arrested, but no one ever stood trial for the assault, said to have been the work of an extremist group funded by Osama bin Laden.