WTF Friday, 6/20/14

Welcome to this week’s WTF Friday, “Let’s All Demonize Refugees and Abused Children” edition.

The day started out promisingly. This morning, in honor of World Refugee Day, Secretary of State John Kerry released a statement:

“It is a time to honor the strength and resilience of refugees around the world and renew our determination to support them as they rebuild their lives and communities. The United Nations High Commissioner for Refugees now counts the number of refugees, asylum-seekers, and internally displaced persons at 51 million. That number is staggering by any measure. It represents children, women, and men from Syria, South Sudan, the Central African Republic, and now Iraq, who face death, destruction, and dislocation.”

But refugees don’t just come from “Syria, South Sudan, the Central African Republic, and now Iraq.” They also come from Guatemala, Honduras, El Salvador, and Mexico. And many of them come to the United States, including, recently, thousands of children.

Unfortunately, we don’t seem to have “renewed our determination” to support those refugees. Vice President Biden is at this very moment meeting with the presidents of Guatemala, Honduras, and El Salvador to clear up “confusion” over U.S. immigration policy in order to stem the flow of migrants fleeing the brutal violence that plagues those countries.

The confusion he’s referring to, as best as I can tell, is the optimistic belief that we would actually follow our obligations under U.S. and international law. (Namely, that we would not return refugees to countries where they would face persecution or torture, and would not deport children to situations where they would face abuse, human trafficking, or worse.) Nah, bro, apparently the plan is to “step up detention and deportation.”

And then we have the chair of the House Judiciary Committee, who has just announced a hearing next week on the ways that child refugees and migrants are “gaming” the system. By which he literally means “applying for immigration relief via the processes set forth in U.S. law, and obtaining such relief if the relevant legal standards are met.” To wit:

“Unaccompanied alien minors are not subject to expedited removal under current law, and many – if not a majority – of them are eligible for immigration relief under current law.”

Following current law? Apocalypse, basically.

Memo to the executive and legislative branches: there is no “unless it’s, like, a little inconvenient” exception to the Refugee Convention. Sometimes refugee flows are burdensome, and that’s just the situation. Jordan is currently hosting more than half a million Syrian refugees in a nation of only 6.4 million people. I am sure they would prefer not to have that responsibility! But they do. Life isn’t fair.

And speaking of which, the numbers here are not actually that big. An estimated 52,000 children have come to the United States since October, which is the mass-refugee-flow equivalent of a goddamned hangnail. That’s not even enough kids to sell out a One Direction show. The Met Life stadium can handle 90,000 screaming Harry Styles fans per night, but I’m expected to believe that the entire rest of this great nation can’t take 52,000 kids over a six-month period?

So yeah, happy World Refugee Day, everyone.

WTF?

The Dark Art of Trial Observation

So, this is a thing that happened: “UN observer at Gaddafi trial held on suspicion of ‘black magic’.”

Ahmed Ghanem is one of three trial monitors sent by the UN to observe the prosecution of former Gaddafi regime officials. He was briefly detained by judicial police, who claimed that he was carrying documents “indicating possible ‘sorcery’ or improper communications”.

Personally, if I were a relatively new regime trying to convince the world that I could run a country and do normal government stuff like holding criminal trials and recognizing immunity, I would maybe not arrest UN officials on insane, made up charges. But that’s just me.

 

International Justice Roundup

Tired of talking about Syria? Over the Olympics? Out of opinions as to whether Hillary will be too old, too female, or too awesome to run in 2016?

Never fear, there’s a whole subgenre of current events news that you’ve been neglecting to chitchat about. Below are three important recent developments in international justice with which to break up the Obamacaregate monotony:

  • Spain puts a(nother) leash on its judges:

On Tuesday, the Spanish Parliament voted to restrict Spain’s universal jurisdiction law to apply only to cases in which the alleged perpetrator is a Spanish national, a foreign resident of Spain, or a foreigner in Spain whom the Spanish government has refused to extradite. Spanish judges (especially El SuperJuez, Baltasar Garzón) have been famous in international legal circles for their aggressive pursuit of foreign human rights abusers for violations committed abroad. They have done this by utilizing Spain’s universal jurisdiction statute, which allowed the prosecution of certain egregious crimes (such as genocide and piracy) no matter where they occurred.

If you’re thinking to yourself that the new version doesn’t sound so “universal”, you would be right. In fact, Spain had already restricted the reach of the courts in 2009 with an amendment limiting the law’s extraterritorial reach to cases with Spanish victims. With the latest change, the courts will now be limited to hearing cases in which both perpetrator and victim are Spanish nationals or residents. Which is pretty much what the Spanish courts would be doing anyway.

  • Ntaganda confirmation of charges hearing opens:

Congolese militia leader Bosco Ntaganda, a.k.a. “The Terminator” (no, really) appeared in court at the ICC this week. Ntaganda faces war crimes and crimes against humanity charges for his role in atrocities committed by the UPC rebel group in Eastern DRC during 2002-2003. He does not, as far as we know, face charges for his role in atrocities committed by the CNDP or M23 rebel groups in Eastern DRC during 2006 – 2013.

At the end of this week’s hearings, the Pre-Trial Chamber will decide whether or not to confirm the charges and allow the case to proceed to trial. Meanwhile, his defense attorneys have the unenviable task of attempting to portray Ntaganda as anything other than a warlord and criminal. So far, they’ve tried “peacemaker” on for size; I assume we can look forward to “humanitarian” tomorrow.

  • ICC Prosecutor launches new investigation:

Last Friday, International Criminal Court Prosecutor Fatou Bensouda announced that she would open a new investigation into atrocities in the Central African Republic. (No, not those CAR atrocities, these CAR atrocities.) The security situation in CAR has gotten steadily worse since a March 2013 coup that brought a coalition of armed groups known as the Seleka to power. Although the Seleka was officially disbanded in September 2013, clashes between the predominantly Muslim ex-Seleka elements and the Christian militias formed to oppose them, known as anti-balaka, have continued and intensified.

Bensouda’s statement specifically noted that many of the victims of possible international crimes “appear to have been deliberately targeted on religious grounds”. In a statement yesterday, Human Rights Watch reported that the anti-balaka militias “are increasingly organized and using language that suggests their intent is to eliminate Muslim residents from the Central African Republic”. Together with yesterday’s discovery of a mass grave, these claims lend weight to warnings of large-scale ethnic cleansing or even impending genocide, and suggest that the ICC will have plenty to investigate.

Additional Reading for Extra Credit

I’ve got a new piece up today at Beacon about efforts to use the courts in Argentina, Spain, and the U.S. to provide accountability for long-ago-and-far-away human rights violations: Who’s Afraid of Extra-Territorial Jurisdiction?

And, in case that $5/month price tag is too steep (hey, I get it, we’ve all been there), a bunch of my earlier posts are now un-gated. Check them out:

  1. A Domestic Trial for Gaddafi’s Spymaster
  2. Why Is an American Pastor Being Sued over Uganda’s Mistreatment of Gays?
  3. The International Criminal Court’s Worsening Africa Problem
  4. An Unwelcome Visitor: Omar Bashir Plans a Trip to New York
  5. Will Assad Face Prosecution for War Crimes?

WrongingRightsNotes™: Hissène Habré Edition!

Have you seen recent news coverage of Hissène Habré’s arrest and/or Seinfeld-watching habits and thought to yourself “Huh? Who?”

Did you greet the news of his indictment by the Extraordinary African Chambers with a yawn and a muttered “Is there a reason I should care about this?”

Do you ever wonder what Reed Brody‘s always on about anyway?

Well, good news, everyone! I have answers to all these questions and more.

First, the basics: Hissène Habré became president of Chad when he seized power from the elected leadership in 1982. He ruled until 1990, when he was himself deposed in a coup. (Payback’s a bitch, eh?) Habré’s reign was characterized by extreme brutality against the political opposition, ethnic minorities, and anyone considered a potential threat to regime security. His secret police have been accused by the country’s truth commission of a mind-boggling 40,000 extrajudicial killings, as well as widespread and systematic torture.

Following his ouster, Habré fled to Senegal, where he apparently lived a luxurious life of must-see-TV reruns and being a dick about garbage cans. Meanwhile, his victims and their advocates got serious about pursuing justice. In 2000, following the UK’s ground-breaking arrest of Augusto Pinochet on a Spanish warrant for human rights abuses committed during his dictatorship in Chile, victims of the Habré regime filed a criminal complaint in Dakar, Senegal. Thirteen years later, Habré will finally stand trial. Here’s what went on in the meantime:

  • In 2000, a Senegalese court indicts Habré for torture and crimes against humanity.
  • Habré lawyers up, and cleverly argues that the Senegalese courts can’t exercise jurisdiction over crimes committed by foreign nationals on foreign territory.
  • In 2001, amidst accusations of political interference from President Abdoulaye Wade (who may or may not have been paid off by Habré), an appellate court dismisses the charges for lack of jurisdiction, on the grounds that Senegal had not passed domestic legislation implementing the Convention Against Torture.
  • President Wade decides Habré’s ongoing presence in Senegal has gotten a bit embarrassing, asks him to go stay on someone else’s couch for a while.
  • The victims get nervous and file a complaint against Senegal with the Committee Against Torture. The Committee tells Wade in no uncertain terms that he’s not getting rid of Habré by any means other than a legal extradition.
  • Victims’ lawyer Reed Brody, in Chad on an evidence-gathering mission in 2002, happens upon a treasure trove of abandoned secret police files, which demonstrate both Habré’s control of the organization, and its use of torture. (If there’s anything to love about abusive secret police operations, it’s that they always find it necessary to meticulously record stuff like “It was in compelling him to reveal certain truths that he died on October 14 at 8 o’clock.”)
  • In 2005, Belgium decides it wants in on this party, and indicts Habré on crimes against humanity, war crimes, and torture charges pursuant to a complaint filed by victims in 2001.
  • Belgium requests Habré’s extradition. Senegal refuses because of…reasons, then gets stressed out and decides to kick the tough decisions upstairs to the African Union.
  • Senegal regrets deferring to the African Union when, in July of 2006, the AU issues a decision requiring “the Republic of Senegal to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for fair trial.”
  • Piling on, the Committee Against Torture announces that Senegal is in violation of its Convention Against Torture obligation to prosecute or extradite Habré.
  • Senegal enacts new international crimes legislation with extraterritorial jurisdiction, then tells the international community that it can’t possibly run a decent war crimes trial without $36.5 million… and some new shoes… and one of those spiffy new Droids with the extra-long battery life. Extensive budgetary wrangling ensues.
  • As the aforementioned haggling drags on into year three, Belgium decides to introduce a new wrinkle, and up and files a surprise suit at the International Court Justice, demanding that Senegal honor its CAT obligations by trying or extraditing Habré. (I was at the ICJ at the time, it was all very unexpected.)
  • Meanwhile, in 2008, Chad tries Habré in absentia and sentences him to death. Senegal begins to think there may be an easy out to this whole situation…
  • Also in 2008, Habré’s lawyers remember reading something somewhere about non-retroactivity, and file suit with ECOWAS alleging that it is a violation of Habré’s human rights to be tried under a criminal statute that did not exist at the time of his alleged crimes.
  • In 2010, ECOWAS issues its decision, and sorta kinda maybe buys Habré’s argument. It decides that while it would violate Habré’s rights to be tried under the newly-enacted Senegalese law, he can still be tried under international law, but it’ll have to be by an internationalized court. (This is pretty much nutballs. Eichmann, anyone?)
  • The AU proposes that a nifty hybrid court be established within the Senegalese judicial system to try Habré. Senegal, realizing that this whole thing is turning out to be a total drag, chooses this moment to throw an epic temper tantrum, withdraws from the negotiations, and announces that Habré will be shipped home to Chad to be executed.
  • Everyone freaks the f*** out, eventually convincing Senegal that sending Habré to the executioner is not the brilliant solution everyone’s been searching for. But Senegal continues to drag its feet as the AU pushes for prosecution and Belgium issues approximately 347 more extradition requests.
  • In July of 2012, the ICJ hands down its decision, finding in Belgium’s favor, and ordering Senegal to get on with it already. Meanwhile, President Abdoulaye Wade is defeated at the ballot box by challenger Macky Sall, and suddenly, Senegal gets all cooperative.
  • The “Extraordinary African Chambers” is born on February 8, 2013. On July 2, 2013, Habré is charged with crimes against humanity, war crimes, and torture. His trial is expected to begin in early 2015.
Stay tuned for the next chapter of this saga. (And if you want the longer version of the events to date, check out Human Rights Watch’s extremely comprehensive chronology and Q&A.)

WTF Friday, 5/31/2013

I’ve been reading Carla Del Ponte’s memoir, “Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity,” and happened upon some surprising information about former war crimes ambassador David Scheffer. From “Appendix C – Dramatis Personae” on p. 403:

 Don’t remember anything like that coming up in Scheffer’s autobiography

WTF Friday, 5/24/2013

This week’s entry is a rare WTF inspired by awesomeness: The Onion’s “9 Photos Of Jennifer Lawrence That Will Make You Reassess The Scope Of The 1986 Vienna Convention On The Law Of Treaties Between States And International Organizations.”

What’s the connection between Oscar-winning actress Jennifer Lawrence and an obscure, not-even-in-force, multilateral treaty? Unclear. Who on The Onion staff is even aware of the VCLTIO, and why? Also unclear. Why do they refer to the ICJ’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons as an advisory “paper”? Mystifying. And what’s their problem with Article 66, anyway?

We may never know.

Data! Beautiful Data!

Jumping on the international justice blogger bandwagon, I concur with Mark and KJH that you should all go read Daniel McLaughlin’s new report for the Leitner Center: “International Criminal Tribunals: A Visual Overview.”

If you’ve ever wondered “how much money in reparations has been paid out to atrocity victims worldwide” or “how many ICTR indictees are still at large” or “can the Special Tribunal for Lebanon conduct trials in absentia,” then this is the resource for you.

It’s also the resource for me, combining my love of brightly colored charts and international criminal law. For instance:

Seriously, go check it out.

Clearing Up Some Confusion on UN Immunity and the Haitian Cholera Claims

A number of news outlets are reporting that the UN has “invoked immunity” in response to claims for compensation from Haitian victims of a cholera epidemic that was probably introduced by Nepalese members of the MINUSTAH peacekeeping mission.

That’s not quite what happened.

The UN didn’t invoke its immunity, because it didn’t have to. The claims for compensation were not an effort to file suit in the courts of Haiti, or any other nation from whose jurisdiction the UN is immune. Rather, they were an attempt by NGOs representing Haitian victims, recognizing the UN’s immunity to lawsuits, to file a claim with the UN itself.

Let’s start from the top:

The UN has immunity from legal process under the 1946 Convention on the Privileges and Immunities of the United Nations. This means that UN officials and “experts on mission for the United Nations” (which is how peacekeepers are classified) are protected from any legal claims or charges arising out of actions performed in their official capacity.**

However, Article 29 of that Convention provides an avenue for the resolution of some disputes that courts cannot reach because of the UN’s immunity. It states that: “The United Nations shall make provisions for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”

In keeping with this obligation, MINUSTAH’s Status of Forces agreement with the Haitian government provided for the establishment of a three person “standing claims commission” to hear civil claims arising out of actions of MINUSTAH, or its members, outside of the Haitian courts’ jurisdiction. This never happened. (And in fact, it appears that the creation of such a commission has never happened anywhere.)

Due to the nonexistence of the standing claims commission, the victims submitted their petition to MINUSTAH’s claims unit and directly to UN HQ. The UN Office of Legal Affairs took fifteen months to review it, and responded by letter yesterday. Its position is that the cholera claims are not the sort of “dispute[] of a private law character” envisioned by Art. 29 of the Convention, but rather involve questions of public law and policy. Well worth the wait, huh?

As Kristen Boon points out over at Opinio Juris: “The upshot of this communication is that the claimants have no venue to pursue their case.” There is no right of appeal for the UN’s denial of compensation, and any attempt to bring a case in Haitian courts (which victims representatives have signaled they will pursue) will be met with an immediate invocation of immunity. -In which case, we can all look forward to some recycled headlines.

 

**This isn’t relevant for the cholera claims, but the Status of Forces agreements that the UN signs with countries where peacekeeping operations deploy include additional language stating that military personnel “shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences.” This means that even when peacekeepers commit crimes in no way related to their official duties (like, for instance, raping Congolese children), they can’t be prosecuted by the host country.

 

Say What, Mittens?

In last night’s foreign policy (where “foreign policy” now includes wrangling about U.S. standardized test scores) debate, Republican candidate Mitt Romney said something weird about Iran.

Actually, he said a number of weird things about Iran, including claiming (and not for the first time!) that Syria is Iran’s “route to the sea.” But for my money, the strangest thing he said was:

“I’d make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation. I would indict him for it.”

He’s said this one before as well, and I’ve wondered what he could possible mean by it. Well, last night, TPM asked Romney senior adviser Eric Fehrnstrom to clarify, and my confusion only increased.

Apparently, the Romney campaign is under the impression that the “World Court” could arrest Ahmadinejad for allegedly saying that Israel should be “wiped off the map.” Here are some problems with that plan:

  1. The “World Court” is the International Court of Justice. It has no criminal jurisdiction, and therefore cannot indict or arrest anyone.
  2. The Genocide Convention is a treaty among states (including the U.S. and Iran) that says that the parties to the treaty must prevent and punish genocide crimes. It does establish that incitement to genocide is a crime under international law, but it is not a criminal statute under which individuals can be indicted.
  3. If Romney and his advisors perhaps meant to invoke the International Criminal Court, rather than the ICJ, well, that’s a problem too. Although incitement to genocide IS a crime under the Rome Statute, the U.S. isn’t a party to the ICC, which means it can’t refer cases to the Prosecutor. 
  4. Romney is advised on foreign policy by John Bolton, who famously described the U.S.’s decision to pull out of the ICC as “[t]he happiest moment of [his] government service”, so it seems unlikely that a Romney administration would mean an about-face for U.S. policy on the ICC.
  5. Even if the U.S. did join, the ICC can only prosecute cases in which either the crime is committed on the territory of a state party, or the perpetrator is a national of a state party. (Unless the Security Council gets involved, but that’s not a possibility here.) Iran has not joined the ICC.
So I’m still stumped. The only (barely) legally plausible option here is to bring a case against Iran in the ICJ for violating its treaty obligations under the Genocide Convention. But the persistent use of the word “indictment” by both Romney and his surrogates suggests that isn’t what he’s got in mind. Anyone understand what’s going on here?