In Bosnia, Prosecuting War Crimes at Home

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

(credit)

In my article, "Prosecuting war crimes at home: lessons from the War Crimes Chambers of the State Court of Bosnia and Herzegovina", published recently in the International Criminal Law Review, I explore the challenges of multilevel justice for prosecuting international crimes.
It is now nearly twenty years since the establishment of the ad hoc international criminal tribunals, and ten years since the entry into force of the Statute of the International Criminal Court. In these two decades international criminal justice has evolved greatly, both from a substantive and procedural point of view but also with regards to its goals and aspirations.
International justice has transformed from a purely retributive system of justice to one which aspires to bring justice closer to the victim, to contribute to restoration and play a part in reconciliation whilst still upholding international standards of fair and due process.  As it develops further, we will see a complex web of prosecutions at the international level, in hybrid or internationalised bodies, and in national courts, either in centralised bodies or scattered around local courts.
This process of fragmentation inevitably brings challenges to international criminal law.
My article focuses on the experience of prosecuting war crimes in Bosnia and Herzegovina, where the multilevel system is as complex as it can get.

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In Bosnia and Herzegovina (flag at right), the work begun by the International Criminal Tribunal for the Former Yugoslavia at The Hague is been carried on by the War Crimes Chamber in Sarajevo. In parallel, local courts continue to have jurisdiction over war crimes committed in their territory.
All post-conflict situations are different, and therefore, too, are the institutional and political frameworks within which prosecutions take place. Unfortunately, the crimes are not different, and the need for justice and redress for the victims isn’t, either. In this regard, the Bosnia and Herzegovina experience provides important insights for future practice, both for the international community supporting a complementary system of prosecutions and for national authorities establishing their own procedures.
My article focuses on the work of the War Crimes Chamber, conceived as a national institution with a temporary hybrid nature. Despite the challenges it has had to confront, the work of the War Crimes Chamber can be considered a success. In 6 years, it has:
►  Become a national institution,
►  Completed over a 100 cases, and
►  Been praised by international organisations for complying with international standards of justice.
In this post, I briefly summarise some of the conclusions I reached in my article.

Need for meaningful international-national engagement
The first conclusion regards the nature of the institutions tasked with the prosecution and adjudication of international cases.
The process in Bosnia and Herzegovina represents the first time a hybrid court has become a national institution. The presence of international staff has been crucial to guarantee a good start, from several points of view. In a highly politicised environment, internationals have, in a way, “shielded” the institutions, and taken most of the burden of politically manipulative discourses and attacks that are still prevalent in the country. They have also contributed to capacity-building and to training of their counterparts and for knowledge to be shared, both from a substantive point of view and from the perspective of court and prosecution management.
However, these capacity-building processes are more complex than simply creating sets of training materials, having national staff sitting in seminars, or lecturing them about international humanitarian law.

BP Guilty Plea: Vindication or Drop in the Ocean?

Four billion dollars.
That is the total of the criminal fines the Department of Justice has assessed against BP for its criminal actions associated with the 2010 Deepwater Horizon spill, the worst environmental disaster in US history. As described in posts available here, the 2010 explosion (left) and oil spill killed 11 people, and sent millions of gallons of oil gushing into the Gulf of Mexico. (photo credit)
BP will plead guilty to 14 criminal charges related to the disaster, including twelve felonies and two misdemeanors:
► Eleven of the felony guilty pleas are for BP’s criminal violations of 18 U.S.C. § 1115 (Misconduct or Neglect of Ship Officers), for negligence that resulted in the 11 worker deaths. The twelfth felony guilty plea is for violation of 18 U.S.C. § 1505 (Obstruction of Congress), by misrepresenting the flow rates from the wells – the company reported flow rates of 5000 barrels a day, despite internal BP data showing flow rates at least an order of magnitude greater.
► The misdemeanor guilty pleas are for violations of the Clean Water Act, 33 U.S.C. §§ 1319(c)(1)(A) &1321(b)(3), and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 and 707(a).
Under the plea deal, BP will pay $1.256 billion in criminal fines, $2.394 billion for remediation efforts, and $350 million to the National Academy of Sciences.
In a parallel proceeding resolved along with the criminal charges, BP also agreed to $525 million to settle civil charges, brought by the U.S. Securities and Exchange Commission, for misleading regulators and investors about the flow rate of oil from the well. With the SEC settlement, the aggregate amount of the deal announced Friday is approximately $4.5 billion, with payments scheduled over a period of five years.
Four and a half billion dollars, by many measures, is a lot of money.
It is more than the nominal gross domestic product of 44 nations, including Belize and Montenegro, and roughly on par with that of Kyrgyztan.
It is well over half of 2011 budget of the U.S. Environmental Protection Agency, which is $8.7 billion.
However, $4.5 billion is significantly less than the $7.7 billion profits BP reported in the fourth quarter of 2011.
The criminal penalty assessed for the worst environmental disaster in the United States' history did not even amount to one quarter’s profit for the main perpetrator!
Context is everything.
Whether one views the goal of criminal punishment as retribution or deterrence, it is difficult so see how the proposed plea deal and penalty accomplish the goal. Eleven people are dead because of BP’s criminal actions. Untold numbers of fish, endangered turtles, marine mammals, and seabirds perished because of BP’s criminal actions.

Aerial view of spill a month after explosion, with inset locator map

During the 87 days it took BP to finally stop the leak, over 4.9 million barrels of crude oil (170 million gallons) gushed into the Gulf of Mexico. For perspective, that makes the BP spill about fifteen times the size of the Exxon-Valdez disaster of 1989.
Vulnerable marine and coastal ecosystems were contaminated, perhaps beyond repair, because of BP’s criminal actions.
Had the company lost at trial, BP could have faced up to $40 billion in fines for its criminal actions. Instead, BP has agreed, with great fanfare, to pay less than one quarter’s profit as a penalty. When measured against the devastation BP wrought, as well as BP’s profit margin, this settlement for one-tenth the potential criminal liability looks like a pretty sweet deal for the company.
Moreover, under the terms of the settlement, BP will have five years to pay the assessed penalties, with nearly half the penalty not due until 2017. At standard present value calculations, the fine will actually cost BP somewhere around $3.74 billion.
There is another context that matters as well.
BP is a criminal recidivist – a repeat offender.

Kate Doty on GTMO, at Jurist

Kudos to IntLawGrrls editor Kathleen A. Doty, whose comparison of conditions on the island of Cuba – in the lands controlled by the Castro regime and at the U.S. military base at Guantánamo Bay – appeared yesterday at Jurist.
Kate (left) begins her commentary, entitled "In Cuba: Justice in Gitmo and Across the Fence," by recalling a visit to the GTMO gate back in August 2001, when she was a semester-abroad student from Smith College. She then fast-forwards to the military commissions proceedings that she observed at GTMO last month. As she posted here and here, Kate, Publications & Program Manager at the American Society of International Law, was an observer for the National Institute of Military Justice.
In her Jurist piece, Kate writes of the "displays of governments' power" on both sides of the fence, describes the similarities and differences respecting detention on either side, and relates an impression of the U.S. commissions:

'[A]s I walked through the two security checkpoints and into the prefabricated building that houses the "courtroom" at Camp Justice, I couldn't help but think that American justice simply isn't rendered in a trailer.'

Well worth a read.

Welcoming Julie Ayling

It's our great pleasure today to welcome Julie Ayling (right) as an IntLawGrrls contributor.
Julie is a Research Fellow in the Australian Research Council Centre of Excellence in Policing and Security based in the Regulatory Institutions Network at the Australian National University in Canberra. Before joining the Regulatory Institutions Network in 2003, she worked for many years as a senior government lawyer, on issues of international law and communications law.
Her research interests include policing, transnational crime, criminal groups and state responses.
Among her publications is the book Lengthening the Arm of the Law: Enhancing Police Resources in the Twenty-First Century (2009), co-authored with with Professors Peter Grabosky, of Australian National University, and Clifford Shearing, of the University of Cape Town. In 2010, Julie won the Australian and New Zealand Society of Criminology New Scholar Prize for her article "Criminal Organizations and Resilience," published in the International Journal of Law, Crime and Justice in 2009.
Julie recently spent time as a visiting fellow at the European University Institute in Florence, Italy. She holds a BALLB degree with first class honours from Macquarie University in Sydney, and a Master of International Law degree from Australian National University.
She dedicates her post to Judith Wright (1915-2000), an Australian poet, author, and environmental and indigenous rights activist. Wright was founder and later president of the Wildlife Preservation Society of Queensland, fighting for conservation of the Great Barrier Reef when oil drilling was proposed, and campaigning against sand-mining on Fraser Island, the largest sand island in the world. She also campaigned tirelessly for the rights of Aboriginal Australians. In Julie's words:

Judith Wright

'To me Judith Wright personifies persistence in the face of opposition and personal difficulties (amongst other things, she suffered deteriorating hearing loss and near blindness).  Judith’s writing was inspired by the country in which she lived. One of her constant themes was the relationship between humans and their environment. She believed that the written word has the power to alter perceptions and she put this conviction into practice.'

Julie's introductory post below aims to shape perceptions about the illicit trade in rhinoceros horns.
Heartfelt welcome!

Go, 'Grrl! Dr. Evelyne Schmid

Delighted to read that IntLawGrrls contributor Evelyne Schmid (right) has successfully defended her Ph.D. thesis at the Graduate Institute of International and Development Studies, in Geneva. Chief advisor for her dissertation, entitled "Violations of Economic, Social and Cultural Rights in International and Transnational Criminal Law," was Institute Professor Andrew Clapham. Hat tip to our colleague Bill Schabas, who served as an examiner at the defense.
Heartfelt congratulations!

Bullfighting survives French constitutional challenge

(credit for mid-1800s painting by Edouard Manet)

Claims that bullfighting is unconstitutionally cruel to animals succumbed today to counterclaims of cultural pluralism.
Le Comité radicalement anticorrida, an animal-rights group that goes by the acronym CRAC and counts among its supporters French luminaries like Brigitte Bardot, initiated the contest against la corrida, as bullfighting is known in the southern regions of France where it's long been practiced.
That practice has been protected by Article 521-1 of the French Penal Code, which generally forbids animal cruelty. That article makes exceptions however, for bullfighting and cockfighting, if they take place in certain regions "where an uninterrupted local tradition can be invoked."
CRAC argued that this provision violates constitutional principles of equal treatment, set forth inter alia in Article 6 of the 1789 Déclaration des droits de l'homme et du citoyen, which states:

« La loi... doit être la même pour tous, soit qu'elle protège, soit qu'elle punisse ».

that is

'The law ... must be the same for everyone, with respect to protection as well as to punishment.'

A Conseil constitutionnel judgment, issued today, rejected that argument.
Referring to Article 521-1, the decision of France's 9 constitutional judges determined (my translation):

'The difference that this law draws between acts of the same nature done in different geographic zones is directly linked to the purpose of the law. ... Given, moreover, that the law authorizes judges to determine whether a situation in fact relates to an interrupted local tradition ... is sufficiently precise to guarantee against the risk of arbitrariness.'

Lamenting the decision, CRAC declared, "We are in a tauromachique dictatorship."
Meanwhile, supporters defended the sanctioning of les courses aux taureaux (yet another name for bullfighting) as promoting "cultural, social, and regional pluralism."

Russian high court considers extraterritorial crime

Constitutional Court of Russia

An interesting news item from St. Petersburg:
Russia's Constitutional Court heard argument Monday on a question of extraterritoriality; specifically, as stated by this Russian Legal Information Agency report,

'the question of whether Russian courts should consider criminal cases against citizens who committed crimes against their compatriots abroad.'

From this English-language report and a Russian-language item on the court's website (thanks, Google Translate!), here's what appears to be the story.
A couple years ago, 2 Russians serving aboard a Malta-flagged tanker got into a fight while the vessel was docked in Constanta, Romania. One, Sergei Krasnoperov, was injured, and on return home to Russia, he sought to initiate a criminal case, alleging intentional infliction of physical harm.
A lower court threw the suit out, for the reason that Article 32 of the Criminal Procedure Code confers on Russia's criminal courts jurisdiction only over offenses committed on Russian soil. Article 2(2) does extend jurisdiction to ships, but only to ships that fly the Russian flag.
The Constitutional Court thus will evaluate the injured complainant's argument that Criminal Procedure Code's territorial limitations violate the rights and freedoms guaranteed in the Constitution of the Russian Federation, Articles 15 (1), (4), 45(1), 46 (1), 52. That last article, for example, provides:

'The rights of victims of crimes and of abuse of office shall be protected by law. The State shall provide access to justice for them and a compensation for sustained damage.'

The case seems worth watching.
International law recognizes several justifications for a state's exercise of extraterritorial jurisdiction; in addition to various forms of territorial jurisdiction, they include the protective principle, universal jurisdiction, and active and passive personality/nationality.  At play in this case appear to be those last justifications -- an (active) national of the state is alleged to have committed a crime against another (passive) national of the state.
That Russia recognizes just one type of jurisdiction, the most traditional of the bunch, is curious. Whether the court will find that limitation unconstitutional remains to be seen.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'But when an international court proposes to send a man to jail for fifty years, and one of four judges who has heard the entire case thinks the man should not even be convicted, this should concern us.'

–  Our colleague William A. Schabas (left), in a post on his blog, in which he details the latest episode in the saga that began moments after a Trial Chamber of the Special Court for Sierra Leone had announced its conviction of former Liberian President Charles Taylor: that chamber's alternate judge, El Hadji Malik Sow (right) of Senegal, attempted to give voice to his own concerns with the verdict, and his microphone was cut off. Since then, Judge Sow's been subjected to internal disciplinary proceedings, a consequence of which was his absence from the sentencing hearing. (IntLawGrrls' posts on these events here and here.)
This past Thursday, an Appeals Chamber of the Special Court rejected a defense motion to disqualify judges from taking part in Taylor's appeal of his conviction and 50-year sentence, for the reason that those judges had participated in postconviction proceedings involving Judge Sow. That Appeals Chamber panel comprised 1 alternate and 5 permanent judges. Notably, as Schabas reports, 1 of those permanent members of the Appeals Chamber, Judge Gelaga King (right) of Sierra Leone, filed a separate decision recording his objections to a proceeding against Judge Sow, and further reporting that he, Judge King, had "walked out" of a judges' meeting rather than "taking any further part." Schabas' post considers this internal turmoil, yet concentrates his commentary on the concern stated in the quote with which this quote begins: that for the 1st time in the known history of international criminal justice, conviction appears to rest on less than unanimity of all judges who evaluated guilt or innocence in light of the factual evidence presented to them at trial. Referring to Sow's cut-off discourse, Schabas argues:

'His views matter. If they are not considered by the Appeals Chamber, they may well be taken into account by history. For the time being, we should insist on knowing more about them. As a starting point, the Appeals Chamber might request that Judge Sow submit his full opinion on the case so that it can be taken into account.'

On September 12

On this day in ...
... 1977 (35 years ago today),in South Africa, as The New York Times' John F. Burns wrote: "Steven Biko, probably the most influential young black leader in South Africa, died while in police detention," an event that, Burns reported, stirred "fears that his death could increase racial tension." According to the BBC, more than 15,000 persons attended his funeral.  It was eventually revealed that Biko, 30, had died not from a hunger strike, as authorities had claimed, but from severe brain damage inflicted during interrogation. Indeed, Biko's death became a rallying point in the movement that led, nearly 2 decades later, to the election of Nelson Mandela as President of a new, anti-apartheid South Africa. Among the accounts of Biko's life and death is newpaper editor Donald Woods' Biko (1978) (above left). It is one of the books that awakened this 'Grrl to the issue of international human rights. (In a post above, IntLawGrrl Stephanie Farrior also pays tribute to Biko.)

(Prior September 12 posts are here, here, here, here,  and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'Ultimately, the question is, does "mankind" really need men?'

– A rather provocative quote in one of those every-so-often commentaries evincing concern that perhaps the male side of the species isn't so essential to, well, the species. (Random query: if women are the distaff side, are men the "staff"? The "dis"?) The author is Greg Hampikian, identified as "a professor of biology and criminal justice at Boise State University and the director of the Idaho Innocence Project" – no surprise then that in this New York Times op-ed he voices public safety concerns, writing that the human male, unlike the female, "is given to lethal incidents and ends up impounded more often." Hampikian's thesis seems a wee bit over the top, but it's an interesting with-morning-coffee-read nevertheless.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

«Au-delà de ma personne, c'est toute l'institution militaire qui est visée à travers cette affaire. On ne peut pas citer à comparaître toute l'armée. On incrimine donc celui qui la commandait».

that is,

'In addition to me, this litigation implicates the entire military institution. They can't summon the whole army to appear. So it is the commander who is charged.'

– Khaled Nezzar, the former Minister of Defense of Algeria, as quoted in this article by Algerian journalist Hacen Ouali. Ouali himself quotes an interview between Nezzar and Soir d'Algérie, conducted in November 2011, after Nezzar had been questioned by Swiss authorities in connection with a criminal complaint brought against him by parties civiles who accuse him of war crimes and human rights violations during the political turmoil that, as IntLawGrrl Karima Bennoune has posted, shook Algeria decades ago. As IntLawGrrl Evelyne Schmid posted last month, a Swiss court has held that Nezzar does not enjoy any immunity from the criminal case, which continues to go forward. Nezzar's quote is offered here not so much on account of this news, but because it succinctly states a trait of international criminal justice: the prosecution of persons alleged to be most responsible for atrocities executed by others. The aim is not just to punish the responsible leader, but also to serve a number of other goals; for instance, to vindicate victims, to deter others from similar wrongdoing, and to express the world community's condemnation. The accused minister's words oddly echo those uttered 67 years ago by Justice Robert H. Jackson in his opening statement as Chief U.S. Prosecutor before the International Military Tribunal at Nuremberg. As I quote here at page121, Jackson said this about the trial of Nazi leaders:

'What makes this inquest significant is that these prisoners represent influences that will lurk in the world long after their bodies have turned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power.'

Welcoming Kellie Toole

It's our great pleasure to welcome Kellie Toole (left) as an IntLawGrrls contributor.
An Associate Lecturer at the University of Adelaide in South Australia, Kellie teaches criminal law and procedure, as well as the law of evidence.
She is admitted as a practitioner of the Supreme Court of South Australia and the High Court of Australia. She practiced criminal law defence law with disadvantaged clients through Australia's legal aid system before joining the faculty at Adelaide Law in 2011. She has a special interest in the death penalty; in 2006, she was an intern at GRACE, the Gulf Region Advocacy Center in Houston, Texas, where she assisted with the representation of poor Americans facing capital punishment.
Kellie's research interests lie at the intersection of human rights law and criminal law. She has written on the topics of marital rape and defenses to homicide, with particular regard to women who kill abusive partners. In her introductory post below, Kellie draws upon this research to discuss a current Australian case that prompted judges to consider the reach of the abolition of marital rape immunity.
Kellie dedicates her post to Dame Roma Mitchell (1913-2000), a former Justice of the South Australian Supreme Court. Kellie writes:

Roma Mitchell

'Dame Roma Mitchell was a prominent South Australian legal professional. Among numerous pioneering achievements, she was the first woman to be appointed Queen’s Counsel in Australia, the first female Justice of the Supreme Court of any Australian state, the founding Chair of the Australian Human Rights Commission, the first woman Governor of an Australian state, and the first female chancellor of an Australian university.
'Roma was raised by a single mother, as her father was killed in World War I when she was 4 years old. The struggle to raise her daughters on a war widow’s pension motivated Roma’s mother to her ensure her daughters received a quality education. These early experiences showed Roma the power of education and provided the foundation for a life-long passion for social justice issues. This passion was fuelled by the poverty she saw as a University student during the Great Depression, and the disadvantage she witnessed through her work as a matrimonial lawyer.
'She led campaigns to allow women to serve as jurors, for equal pay for women, and for flexibility to allow female lawyers to return to the profession after having children. In the 1970s, she convened the Criminal Law and Penal Methods Reform Committee of South Australia, which recommended progressive changes to the law regarding the death penalty, sentencing and prison reform, and Aboriginal welfare. On a personal level she was much loved for her sense of humour, warm and down-to-earth manner, genuine interest in people, and sociability and quick wit.'

Today Mitchell joins other inspiring women on IntLawGrrls' foremothers' page.
Heartfelt welcome!

In Australia, reconsidering ‘marital rape immunity’

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post, which builds on my research)

When the colony of Australia was first settled, it received the English law common law, which became the Australian common law. This law included the 18th century proposition that a ‘marital rape immunity’ prevented a man from being convicted of the rape of his wife, because she was presumed to have given general consent to sexual intercourse with him upon marriage. This proposition of ‘marital rape immunity’ may be traced to Sir Matthew Hale's The History of the Pleas of the Crown.
Hale's proposition was relatively uncontroversial throughout the Commonwealth for several centuries, although several English judges did express some reservations about it over the years; for instance, in R v Clarence (1889) 22 QBD 23.

 In 1976,  by means of the Criminal Law Consolidation Act Amendment Act 1976, South Australia became the first jurisdiction in the common law world to abolish the presumption that a wife gave such consent. This statutory amendment enabled the conviction of men for the rape of their wives, although, until 1992, the rape had to be accompanied by threats or violence for the offence to be prosecuted.
In 1991, in its judgment in R v L, the High Court of Australia made a declaration that the ‘marital rape immunity’ was no longer part of the common law of Australia. The combined judicial and Parliamentary decisions seemed to have resolved the law of rape in marriage in Australia, and, indeed, the matter was not raised in court for two decades.
However, in 2010, the state of South Australia sought to prosecute ‘Mr P’ for two rapes of his then wife in 1963 (R v P, GA (2010) 109 SASR 1).
Mr P’s case is controversial because the alleged rapes occurred before the immunity was abolished by either the South Australian Parliament or the High Court:
► If the abolition of the marital rape immunity had only prospective effect, it stopped being available to a defendant from the time it was formally abolished. In this situation the abolition of the immunity would not apply to Mr P, and he might have a defence to the rape charges.
► However, if the abolition also applies to actions that occurred before the changes in the law, then he faces conviction for rape. This latter possibility raises the principle against retrospective application of criminal laws, which holds that conduct should be judged by the law in place at the time it occurs, rather than years later by laws that have changed with social attitudes.

South Australian Supreme Court, Adelaide

Mr P argued before the Supreme Court of South Australia that prosecuting him for his actions in 1963 breached the fundamental human right, expressed in the Convention for the Protection of Human Rights and Fundamental Freedoms, that no one should be found guilty of a crime for action that was legal when it occurred.
The prosecution argued that Mr P raped his wife and should not “escape the consequences because of outdated, outmoded and long-rejected views about the subservience of married women”. It argued that, at least, the 1991 declaration by the High Court, and possibly the statutory abolition by the South Australian Parliament, had retrospective effect, so that the immunity had no application in 1963.
The South Australian Supreme Court was persuaded by the prosecution.

Not a Riot

Prosecutors in Moscow are seeking a 3-year jail sentence for 3 members of Pussy Riot, a punk band made up of women opposed to Russia's once and current President, Vladimir Putin.
They're on trial for the crime of "hooliganism," deemed a Crime Against Public Security by Article 213 of the Russian Criminal Code.

Conviction would expose them to prison sentences of up to 7 years.
Source of the charges?

Pussy Riot's balaclava-clad protest performance on February 21 at a Russian Orthodox church. (They've taken New York's Guerrilla Grrls a leap further.) The song's refrain, according to this site:

'St. Maria, Virgin, Drive away Putin
'Drive away! Drive away Putin!'

It's the same YouTube site from which the images accompanying this post -- said to depict the actual performance at issue -- were screen-grabbed. It's a statement on a lot of things -- not the least, the many faces of womanhood in modern Russia.

Write On! ABA/AALS criminal justice workshop

(Write On! is an occasional item about notable calls for papers)

 

Papers on any topic in criminal law, criminal procedure, or criminal justice – including international and comparative topics – are being sought for a scholarly papers workshop to be held in D.C. on October 25, 2012. Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop.
The workshop is part of a 2-day joint conference that the American Bar Association and the Association of American Law Schools are sponsoring at the Washington Court Hotel. Workshop presenters will also be required to attend the criminal justice panels the following day, October 26.
Abstracts of no more than 500 words should be e-mailed to both Northern Kentucky University Law Professor Michael J.Z. Mannheimer at mannheimem1@nku.edu and University of Arkansas Law Professor Laurent Sacharoff at lsacharo@uark.edu. (E-mail either one of these organizers if you have any questions about the call.) Deadline for submitting abstracts is August 15, 2012.

On June 24

On this day in ...

... 1957 (55 years ago today), in its judgment in Roth v. United States, the U.S. Supreme Court ruled 6-to-3 that the 1st Amendment to the U.S. Constitution does not protect obscenity; thus it affirmed petitioner/bookseller's conviction for distributing obscene materials through the mail, in violation of a federal felony statute. (photo credit) The Court articulated a definition of obscenity -- one it would adjust in Miller v. California (1973).

(Prior June 24 posts are here, here, here, here, and here.)

Go On! National courts/intlaw crimes @ Amsterdam

(Go On! is an occasional item on symposia and other events of interest)

Amsterdam's historic Trippenhuis, the permanent headquarters of the Royal Netherlands Academy of Arts and Sciences, will be the site of a conference on a subject about which frequently post, most recently here and here.
The conference, titled Pluralism v. Harmonization: National Adjudication of International Crimes,will be held this June 14 and 15.
Speakers will examine international criminal law "fragmentation at the international and national level," write organizers, including our colleague, Professor Elies van Sliedregt (below right), Dean of the Faculty of Law at Vrije Universiteit Amsterdam. The program promises many distinguished speakers in addition to Elies and her law faculty colleague Barbora Holá; among them, Andrew Cayley, International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and Dr. Sarah Nouwen, University Lecturer in Law and Fellow of the Lauterpacht Centre and Pembroke College at the University of Cambridge, England.
Topics to be addressed:
► To what extent is harmonizing international criminal law desirable, or even realistic? How does a pluralistic approach contribute?
► How to deal with the tension between collective action and individual responsibility when prosecuting international crimes?
► To what extent does the principle of complementarity as laid down in Article 17 of the Rome Statute of the International Criminal Court require adherence to international standards; does this also affect procedural law, in particular domestic laws of evidence?
► Given fact-finding impediments and evidentiary challenges when dealing with core international crimes, can national courts be of guidance to international criminal tribunals; or vice versa?
Details here; program here.
Register here before the June 4 deadline.

Complementarity in action: Applying South Africa's ICC Act, national court orders South African prosecutors to investigate torture in Zimbabwe

By means of a fascinating application of complementarity under the Rome Statute of the International Criminal Court, South African prosecutors must investigate allegations of torture committed in Zimbabwe.
So ordered the High Court of South Africa Tuesday, in its judgment in South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other government units.
Complementarity, of course, is the principle that allots jurisdiction over crimes punishable under the 1998 ICC Statute; specifically, genocide, war crimes, and crimes against humanity. (As posted earlier this week, the crime of aggression may one day be added to that list.) The statute's preamble states:

'[T]he International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.'

The global community thus looks first to countries to pursue persons suspected of ICC crimes.
And Tuesday's ruling requires one national system to do just that.
In his 98-page judgment, Pretoria-based High Court Judge Hans-Joachim Fabricius reversed prosecutors' 2008 rebuff of the request from 2 applicant NGOs for an investigation into "into acts of torture as crimes against humanity committed by certain named perpetrators in Zimbabwe."
Of special note:
The national order for a transnational investigation issued notwithstanding the fact that the ICC itself cannot exercise jurisdiction over acts in Zimbabwe, a state not party to the ICC statute.
As IntLawGrrl Naomi Roht-Arriaza further discusses today in her post from Johannesburg, the applicants sought investigation of an event alleged to have taken place on March 27, 2007, in Harare, Zimbabwe's capital. Paragraph 8 of the judgment states:

'Zimbabwean police, under orders from the ruling party, the Zanu-PF, raided the headquarters of the opposition party, the Movement for Democratic Change (“MDC”). Over one hundred people were arrested and taken into custody, amongst them were MDC supporters and officials, as well as persons who worked in near by shops and offices. Individuals affiliated to the MDC were detained for several days, and were continuously and severely tortured ... on the basis of their association with the MDC and their opposition to the ruling party.'

It's further alleged that these acts of torture were "'inflicted by – and at the instigation of and/or consent or acquiescence of public officials" as "part of a widespread and systematic attack on MDC supporters and officials and those opposed to the ruling party, the Zanu-PF."
Authority for the court's order is twofold: South Africa's Constitution and a South African statute, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
Here's the reasoning by which applicants successfully invoked South Africa's ICC Act:

'[I]n the light of the collapse of the Rule of Law in Zimbabwe, concern for the safety of the victims, and the unlikely-hood of securing accountability in a Zimbabwean court ... South Africa was legally required to investigate war crimes, crimes against humanity and genocide, regardless of whether they were committed in South Africa or by South African nationals, those responsible could and should be held accountable under South African law designed for this very purpose.'

One hears echo of the "unwilling or unable" requirement of complementarity as set forth in Article 17(a) of the Rome Statute.
The Pretoria court agreed with applicants' reasoning.

Glazier: Systemic fairness & GTMO arraignment

Our colleague David Glazier (left), Professor of Law at Loyola Law School in Los Angeles, is en route back to Los Angeles after having observed military commission proceedings against Khalid Sheikh Mohammed and 5 others, alleged to be the authors of the terrorist attacks of September 11, 2001.
Having posted his pre-hearing report over the weekend, am happy to share below Dave's excellent observations regarding the arraignment hearing itself.
He prepared the report as an observer for the National Institute of Military Justice – a role that IntLawGrrls Beth Van Schaack, Beth Hillman, and yours truly, along with other NIMJ board members, also have filled.

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WASHINGTON, D.C. – The experience of observing Saturday’s military commission arraignment of the five alleged 9/11 conspirators in Guantánamo Bay, Cuba, on behalf of the National Institute of Military Justice left me with serious concern that systemic issues, many involving “outside” agencies, particularly Joint Task Force Guantánamo (JTF), are likely to preclude the exercise of meaningful attorney-client coordination. This in turn will call into question whether these trials are sufficiently fair as to merit contemporary, and ultimately historical, public approval. These concerns are separate from any issues the substantive law being applied; my comments in this post are limited to matters observed at Guantánamo.

Some positive points
First let me acknowledge some positive points.
► The government has promised greater transparency in the commission process, and the establishment of additional remote sites where the trial can be viewed as well as the unprecedented same-day Internet posting of unofficial trial transcripts (from this link one must go to “Khalid Sheikh Mohammed et al. 2 and then to “transcripts”) are both good news in this regard.
► And on some matters, Judge James L. Pohl went out of his way to demonstrate “fairness” to the defendants, announcing recesses for prayer times sua sponte, pausing the trial to allow conversion from the planned simultaneous Arabic translation via headphones to sequential translation broadcast via overhead speakers, saying nothing about defendant Walid Bin Attash's offensive paper airplane, tolerating prayers at times other than actual prayer times, etc. While quality translation is essential to a fair trial where not all defendants speak adequate English, most observers, even commission critics, thought Pohl actually went too far in most of these accommodations. There was unanimous agreement among trial observers with federal practice experience that no U.S. federal judge would have tolerated such breaches of courtroom decorum as unscheduled prayers or defendants making paper airplanes, and few, if any, federal courts would have recessed for prayer times falling outside reasonable mealtimes.

Concerns threatening trial's credibility
But the obvious “considerations” extended the defendants mask broader concerns which threaten the trial’s ultimate credibility.
► As a matter of law, these need not necessarily have been addressed Saturday. Colonel Pohl was likely on solid legal ground in deferring the motions that defense attorneys repeatedly tried to push forward until the next court session in June. And some of the defense concerns may well lack objective merit – there are always two sides to every story. Nevertheless, the aggregate impression I came away with was that the defense had a number of legitimate issues about detainee treatment impacting their ability to mount a defense that were not merely frivolous attempts to delay the proceedings. Deferral of these issues, even if legally permissible, now impacts their ability to press ahead with trial preparation, and may introduce further delay into a trial the judge unilaterally suggested was still at least a year away.
► It was very evident from the very limited interactions between the defense lawyers and the defendants that few, if any, had established any meaningful trust-based attorney-client relationships.

Glazier: Nuremberg lens on GTMO commissions

Our colleague David Glazier (left), Professor of Law at Loyola Law School in Los Angeles, is in at the U.S. military base at Guantánamo Bay, Cuba, observing the military commission proceedings against Khalid Sheikh Mohammed and 5 others, alleged to be the authors of the terrorist attacks of September 11, 2001. He wrote just minutes ago that the arraignment hearing's still going on "because the defendants," who reports said caused quite a ruckus in court today, "ultimately refused to waive the reading of the charges."
Will have to wait for a full report on today's proceedings.  But did want to share Dave's excellent account of what transpired yesterday, compiled as an observer for the National Institute of Military Justice – a role that IntLawGrrls Beth Van Schaack, Beth Hillman, and yours truly, along with other NIMJ board members, have fulfilled in the past.
Here's Dave's report, which ends by finding the commissions fall short when viewed in light of the the postwar International Military Tribunal at Nuremberg:

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GUANTÁNAMO, May 4 – I am currently in Guantánamo as the National Institute of Military Justice (NIMJ) observer at the scheduled May 5 arraignment of the five alleged 9/11 co-conspirators. Tonight I had the opportunity to attend back-to-back press conferences by James Connell, the civilian “learned counsel” representing one of the five defendants, Ammar al Baluchi, also known as Ali Abdul Aziz Ali, and the second by Chief Prosecutor Mark Martins, whose prepared statement is already posted at the Lawfare Blog.
Connell addressed the long delay in the prosecution and previous false starts, suggesting that Saturday’s arraignment marked only the beginning of a multi-year process that could still be in progress in ten years time should the Supreme Court strike down the new military commissions as they did once before. But most of his discussion focused on the secrecy of the proceedings, and how he was legally prohibited from saying anything at all about his client’s intention because of the government’s insistence that anything a detainee formerly held in CIA custody said was presumptively classified at the Special Compartmented Intelligence (SCI) level. The ACLU has filed a motion that I think does an excellent job of addressing the impact of this approach on the public’s right to know (full disclosure – I authored a supporting declaration on historic military commission practice but played no role in drafting the actual motion). But the major adverse impact this secrecy has on Guantánamo defense teams’ ability to represent their clients is a topic significantly underreported to date, and Connell’s remarks only scratched the surface of the issue.
Connell also explained the one significant development today – the military judge had intended to conduct an informal session with only counsel present (called an “802 hearing” after the Military Commission Rule 802 addressing the subject). The judge’s staff began notifying the defense counsel of his intention, and according to Connell, attorneys for the first two detainees who were notified both said they would come only if the hearing was recorded so that it could eventually be included in the formal trial record. Shortly thereafter word was sent to the attorneys that there would be no 802 hearing today, meaning that tomorrow’s arraignment will proceed without any formal pre-coordination
Connell was followed by Chief Prosecutor Martins who gave a polished defense of the commissions’ fairness. I think it odd that the individual charged with prosecuting the defendants has taken upon himself the role of head cheerleader for the commission process. One might remember that Morris Davis did this several years ago in his tenure in that job, resulting in significant complaints about his extrajudicial commentary that would have been a subject of some judicial discussion had David Hicks not cut it off by pleading guilty. And Martins should have his focus on fulfilling his ethical responsibilities to do justice in the prosecutions – the Convening Authority certainly can call on other resources such as his own public affairs staff to defend the commissions.
In any event, as a scholar of the military commission process since their announcement in 2001, I found many of Martins’ comments to be less than fully candid. Here just a couple of examples: