Opinio Juris

Friday, May 16, 2008

Oscar Pistorious and the Rights of Disabled Athletes

by Kevin Jon Heller

The California Supreme Court's decision to legalize gay marriage wasn't the only good human-rights news yesterday. Also exciting is the Court of Arbitration for Sport's decision to allow Oscar Pistorius, a double-amputee sprinter, to compete for a place in the Beijing Olympics:

The Court of Arbitration for Sport ruled that the 21-year-old South African is eligible to race against able-bodied athletes, overturning a ban imposed by the International Association of Athletics Federations.

CAS said the unanimous ruling goes into effect immediately.

"I am ecstatic," Pistorius told reporters in Milan, Italy. "When I found out, I cried. It is a battle that has been going on for far too long. It's a great day for sport. I think this day is going to go down in history for the equality of disabled people."

Pistorius still must reach a qualifying time to run in the individual 400 meters at the Aug. 8-24 Beijing Games. However, he can be picked for the South African relay squad without qualifying. That relay squad has not yet qualified for the Olympics.

Pistorius appealed to CAS, world sport's highest tribunal, to overturn a Jan. 14 ruling by the IAAF that banned him from competing. The IAAF said his carbon fiber blades give him a mechanical advantage.

[snip]

In its ruling, the CAS said the IAAF failed to prove that Oscar Pistorius' prosthetic running blades give him a competitive advantage.

The IAAF based its January decision on studies by German professor Gert-Peter Brueggemann, who said the J-shaped "Cheetah" blades were energy efficient.

Pistorius' lawyers countered with independent tests conducted by a team led by MIT professor Hugh M. Herr that claimed to show he doesn't gain any advantage over able-bodied runners.

CAS said the IAAF failed to prove that Pistorius' running blades give him an advantage.

"The panel was not persuaded that there was sufficient evidence of any metabolic advantage in favor of a double-amputee using the Cheetah Flex-Foot," CAS said. "Furthermore, the CAS panel has considered that the IAAF did not prove that the biomechanical effects of using this particular prosthetic device gives Oscar Pistorius an advantage over other athletes not using the device."

Pistorius was born without fibulas — the long, thin outer bone between the knee and ankle — and was 11 months old when his legs were amputated below the knee.

I find Pistorius's story profoundly inspiring — there were tears in my eyes as I read the ESPN article. And it's fitting that the decision comes less than two weeks after the UN Convention on the Rights of Disabled Persons entered into force.

Pistorius, of course, is only the latest disabled athlete to earn the right to compete against his abled peers. We can't forget the equally inspiring struggles of golfer Casey Martin, who convinced the Supreme Court to let him use a cart on the PGA Tour, or Marla Runyan, who became the first legally blind athlete to compete in the Olympics when she ran the 1500 meters in Sydney in 2000. And, of course, their stories connect to a much broader narrative of increasing equality in sport, a narrative that runs from Jackie Robinson to Billie Jean King to Mianne Bagger, a transgender golfer from Denmark whose efforts led the International Olympic Committee, the Ladies Golf Union, and the United States Golf Association to allow transgendered athletes to compete.

I've never been much of a track-and-field fan. But you can bet I'll be glued to the television if, as expected, Oscar Pistorius competes in Beijing.

POSTSCRIPT: There are obviously dozens more wonderful stories of athletes who compete despite disabilities or discrimination. As a baseball fan, I always rooted for Jim Abbott, who had a very good career as a pitcher for the Angels, Yankees, Brewers, and my beloved White Sox despite having only one hand. I hope readers will weigh in with the stories they find most inspiring.

05.16.2008 at 7:24pm 0 Comments 0 Trackbacks

ATS Apartheid Case Affirmed by Supreme Court

by Roger Alford

In a strange move, the Supreme Court on Monday affirmed the ATS Apartheid case of Khulamani v. Barclay Bank (recaptioned at the Supreme Court as American Isuzu Motors v. Ntsebeza). The stated reason? The Court lacked a quorum. From the docket sheet:

Because the Court lacks a quorum, 28 U.S.C. § 1, and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. § 2109, which provides that under these circumstances the Court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court. The Chief Justice, Justice Kennedy, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

Under 28 U.S.C. § 1, "the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." And under 28 U.S.C. § 2109, in any case "which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Apparently four justices had to recuse themselves and therefore the Court lacked the six justice quorum required to decide the case.

If you look at the list of defendants it is perhaps not surprising that many of the justices had a conflict. Still, I have never heard of anything like this in such an important case. Lyle Denniston has more here.

05.16.2008 at 11:47am 1 Comments 0 Trackbacks

Thursday, May 15, 2008

John Boonstra on R2P and Burma

by Kevin Jon Heller

I had contemplated weighing in on commentators' unfortunate tendency to equate the Responsibility to Protect doctrine with humanitarian invasion, but John Boonstra at UN Dispatch beat me to it. Here's a snippet:

First, by and large, the R2P doctrine has been misunderstood or misrepresented in calls to "invade" Burma. R2P is often implied to boil down to a simple equation: if a government is unable or unwilling to adequately protect its citizens, then the international community has a right to forcibly intervene to protect these people. The first part of this conditional is accurate, but the second is a gross oversimplification. R2P does not prescribe invasion any more than the Constitution of the United States mandates impeachment. Military intervention is only one component of the R2P framework, and one of last resort, at that; it is only to be undertaken when a series of specific conditions are met, ensuring that intervention is justified, well-intentioned, practical, authorized by the proper authority (i.e., the UN Security Council), and will not cause more harm than good.

Wielding R2P as a Trojan horse for invasion and regime change, as Robert Kaplan seems to desire, is harmful to the integrity and future viability of the concept, as well as to the more pressing concern of alleviating the Burmese people's suffering.

The whole post is well worth a read. It's here.

05.15.2008 at 6:58pm 1 Comments 0 Trackbacks

Saturday, May 10, 2008

Is It Time to Invade Burma? (Is It Time to Invade Georgia?)

by Chris Borgen

The first part of this post's title is also the title of a new article at Time.com. (Note: on CNN.com, they title the article "Time to Invade Myanmar?")

And so begins the latest iteration of the humanitarian intervention debate. After a recap of the situation in Myanmar, the article notes:

...it's hard to imagine a regime this insular and paranoid accepting robust aid from the US military, let alone agreeing to the presence of US Marines on Burmese soil — as Thailand and Indonesia did after the tsunami. The trouble is that the Burmese haven't shown the ability or willingness to deploy the kind of assets needed to deal with a calamity of this scale — and the longer Burma resists offers of help, the more likely it is that the disaster will devolve beyond anyone's control. "We're in 2008, not 1908," says Jan Egeland, the former U.N. emergency relief coordinator. "A lot is at stake here. If we let them get away with murder we may set a very dangerous precedent."

That's why it's time to consider a more serious option: invading Burma. Some observers, including former USAID director Andrew Natsios, have called on the US to unilaterally begin air drops to the Burmese people regardless of what the junta says. The Bush Administration has so far rejected the idea — "I can't imagine us going in without the permission of the Myanmar government," Defense Secretary Robert Gates said Thursday — but it's not without precedent: as Natsios pointed out to the Wall Street Journal, the US has facilitated the delivery of humanitarian aid without the host government's consent in places like Bosnia and Sudan.

The article concludes that, if current attempts at assistance fail,

"It's important for the rulers to know the world has other options," [Jan Egeland, a former UN emergency reloief coordinator] says. "If there were, say, the threat of a cholera epidemic that could claim hundreds of thousands of lives and the government was incapable of preventing it, then maybe yes — you would intervene unilaterally." But by then, it could be too late. The cold truth is that states rarely undertake military action unless their national interests are at stake; and the world has yet to reach a consensus about when, and under what circumstances, coercive interventions in the name of averting humanitarian disasters are permissible. As the response to the 2004 tsunami proved, the world's capacity for mercy is limitless. But we still haven't figured out when to give war a chance.

I am of two minds when it comes to humanitarian intervention. Cases such as Myanmar may be the less difficult cases--situations where there is a threat of widepread disease or famine (let alone the physical injuries and other forms of suffering caused by the storm) and a government is either incapable or uninterested in actually doing what needs to happen to save its own citizens. I'm not saying that that is an easy case for humanitarian intervention, just that it is not as hard as other examples that are more politically ambiguous, such as intervening because of civil strife or sectarian violence.

Turning such a political decision into a legal rule is fraught with dangers. What do we do if the Russian intervene militarily in Georgia, on the pretext that they are protecting Russian passport holders? What of Turkey's intervention in Northern Cyprus in the 1970's on the argument that it was protecting Turkish Cypriots from violence? As I've written regarding Kosovo, the law of unintended consequences is a mighty force to reckon with.

The people of Myanmar desperately need help and they need it now. Perhaps intervening without the consent of their government will be the necessary and moral thing to do. I don't know enough about the facts on the ground to judge that. But, even if various states do undertake such an action, they should think very carefully about proclaiming the existence of a legal principle favoring humanitarian intervention.

05.10.2008 at 2:45pm 5 Comments 0 Trackbacks

Wednesday, May 7, 2008

Here Comes the U.N. Convention on the Rights of Persons with Disabilities

by Julian Ku

Now that was fast. The U.N. Convention on the Rights of Persons with Disabilities was opened for signatures in March 2007. And it entered into force on May 3, 2008, barely a year later. Celebrations will be held on May 12, 2008 from 1:15 to 3:15 p.m. at the General Assembly Hall.

Conspicuously absent from the list of signatories is the U.S. I have to admit I know next to nothing about this treaty, so I am unaware of the U.S. objection to the treaty, if indeed, the U.S. objects at all. It could be that the wheels of treaty making in the Executive Branch are grinding slowly on this one. If anyone has more info on the treaty and the U.S. position on it, I welcome their additions to the comments.

05.07.2008 at 5:41am 3 Comments 0 Trackbacks

Monday, May 5, 2008

Are Evolving Standards of Decency a One-Way Ratchet?

by Roger Alford

One of the more intriguing questions from the oral argument in the child rape death penalty case of Kennedy v. Louisiana is whether evolving standards of decency are a one-way ratchet. Here is Justice Stevens' question from the oral argument last month:

[O]ne question that interests me but is a little divorced from the terms of the arguments so far. I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply. They suggest that as a matter of international law, there's sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It's kind of a one-way rachet, we look at trends in one direction but we don't look to see if you suddenly have changed gears and go in the other direction. Could you just comment on that argument?... I just use[] that as an analogy to our evolving standards of decency cases which has been part of our Eighth Amendment jurisprudence, that sort of is a — one way direction in which these cases go. Do you think it's appropriate — are you aware of any case saying we can turn around and go in another direction?

The amicus brief of British Law Lords referenced by Justice Stevens summarizes the one-way ratchet argument succinctly:

International authorities have long agreed that nations that retain the death penalty must refrain from expanding the death penalty to crimes to which it currenlty does not apply--a principle that has been codified in a regional convention and reaffirmed by the jurisprudence of human rights bodies. There is an equally strong global consensus that nations should gradually narrow the categories of offenses for which the death penalty may be imposed.

It is an interesting idea. Note that the role of comparative and international law is not with respect to the content of a particular substantive right but rather the methodology by which standards should evolve. The question posed is not what other countries do with respect to child rape and the death penalty, but rather whether other countries allow for the expansion of the death penalty. Justice Stevens is suggesting that perhaps a living constitution should evolve in the same manner that international law evolves, with the death penalty moving in only one direction toward abolition.

The apparent concern that animates Justice Stevens' question is that the national consensus may be trending toward allowing the death penalty for child rape. If the national consensus is evolving toward a conclusion that this punishment is not cruel and unusual, on what basis can Justice Stevens limit the use of that evolving standard? I seriously doubt that the Court will rely on international or comparative law to embrace a one-way ratchet, but it is worth discussing whether our own jurisprudence would allow for such a limit on the evolving standards of decency.

05.05.2008 at 11:19am 1 Comments 0 Trackbacks

Sunday, May 4, 2008

Pope Benedict: International Law Theorist

by Julian Ku

I didn't notice until recently (and thanks to one of my Hofstra colleagues) that Pope Benedict's recent address to the United Nations included a rather learned disquisition on international law theory. The Pope has a pretty traditional liberal internationalist conception of things but it is certainly smart and sophisticated. Here is an interesting snippet, which might be understood to justify international intervention to prevent violations of human rights (although not quite a brief for humanitarian intervention):

IRecognition of the unity of the human family, and attention to the innate dignity of every man and woman, today find renewed emphasis in the principle of the responsibility to protect. This has only recently been defined, but it was already present implicitly at the origins of the United Nations, and is now increasingly characteristic of its activity. Every State has the primary duty to protect its own population from grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made. If States are unable to guarantee such protection, the international community must intervene with the juridical means provided in the United Nations Charter and in other international instruments. The action of the international community and its institutions, provided that it respects the principles undergirding the international order, should never be interpreted as an unwarranted imposition or a limitation of sovereignty. On the contrary, it is indifference or failure to intervene that do the real damage. What is needed is a deeper search for ways of pre-empting and managing conflicts by exploring every possible diplomatic avenue, and giving attention and encouragement to even the faintest sign of dialogue or desire for reconciliation.

In any event, it is interesting stuff and worth investigating further.

05.04.2008 at 12:02am 2 Comments 0 Trackbacks

Wednesday, April 23, 2008

Sovereign Accountability for Human Rights Abuses

by Roger Alford

One of the unintended consequences of the movement to hold corporations liable for aiding and abetting human rights abuses is that doing so may prove to be the most effective way of holding sovereigns accountable. That is the surprising conclusion of my latest article just published in the Notre Dame Law Review. Here is an excerpt:

One has a nagging suspicion that human rights litigation against corporations is a proxy fight in which the accomplice is pursued while the principal evades punishment. Indeed, if a corporation is accused of "aiding and abetting" human rights abuses, this is all but a concession that the corporate actor is not the principal wrongdoer. It is of course possible that this controversial trend toward corporate responsibility may reflect a genuine concern about corporate abuse of power. But more likely it reflects an abiding frustration that the primary perpetrators-sovereigns-are beyond the reach of most victims. If victims cannot pursue claims against the principal, they will resign themselves to pursue claims against those who aid and abet.

How have we come to this state of affairs, in which the corporation is pursued while the sovereign evades punishment? Why should the corporate accomplice alone be found liable if the sovereign is the primary malfeasor? For the first time in scholarly literature, this Article suggests an alternative approach, a solution to this conundrum. It suggests that corporations have existing tools to remedy the situation, drawing on principles derived from human rights, contract law, and arbitration. The essential idea is that if a corporation is found liable for aiding and abetting human rights abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not pursue the sovereign, there is no impediment for a corporation that is found liable to pursue the sovereign in arbitration to secure its share of liability, either in the form of contribution or indemnification. In short, human rights litigation against the corporation could lead to "who pays" arbitration against the sovereign….

The purpose of this Article is not to affirm or disaffirm this trend of holding corporations liable under international law. Rather its purpose is to recognize an observable trend in human rights litigation patterns and consider its ramifications. If corporations increasingly are subject to international responsibility, then this portends new avenues for holding sovereigns responsible for their share of the liability….

Human rights litigation followed by "who pays" arbitration is a two-step process that overcomes the traditional immunity that sovereigns enjoy in human rights litigation. Thus far, human rights litigants have attempted to scale an impregnable wall of sovereign immunity by relying on awkward FSIA tools such as commercial activity or implied waivers. But corporations have no such difficulties. They can invoke provisions in their contracts that were specifically drafted to fulfill the relatively straightforward FSIA exceptions of express waiver and arbitration. Corporations typically cannot implead and crossclaim against the sovereign in the underlying litigation. But they can do the next best thing by arbitrating the question of who pays for the human rights abuses. Effectively, the arbitration procedure operates as a second-tier cross-claim by one malfeasor against the other.

What is particularly important about this paradigm shift is that heretofore human rights abuse has been a relatively cost-free enterprise for perpetrators, particularly sovereigns…. But with corporate liability that equation changes dramatically. To use Guido Calabresi's scheme of cost avoidance, monetary incentives are placed on corporations to change their conduct so as to reduce the number and severity of human rights violations…. And by imposing a cost on corporations that aid and abet sovereign abuse, those corporations will become cost avoiders…. Holding corporations liable and then arbitrating who pays is a mechanism of imposing costs and then spreading the costs, resulting in the corporation and the sovereign becoming cost avoiders. By imposing and spreading costs to the secondary and primary perpetrators, greater fairness between the malfeasors is achieved and deterrence from human rights abuse is enhanced. Contractual arbitration between the corporation and the sovereign over who pays transfers costs imposed on the corporation and creates shared incentives to implement and enforce human rights obligations.

04.23.2008 at 11:28am 5 Comments 0 Trackbacks

Tuesday, April 22, 2008

Incitement to Genocide and the Responsibility to Protect

by Elihu Richter

[Professor Elihu Richter teaches at Hebrew University-Hadassah School of Medicine and Public Health and heads the Program on Genocide Prevention. This post follows up on last week's discussion of Susan Benesch's VJIL article.]

I congratulate the Virginia Journal of International Law for hosting this web-based discussion with Susan Benesch and Greg Gordon (among others) on the legal aspects of incitement and genocide. The core principles are that the right to life trumps all other human rights, and that we have a Responsibility to Protect (R2P- Security Council Resolution 1674). Both have written path-breaking treatises of the highest public importance. Here are my brief comments:

Precautionary Principle and the Ethical Import of Delay. I myself am a medical epidemiologist with a special interest in applying the "Precautionary Principle" to make genocide prevention effective. I would like to see an international network for surveillance of hate language and prosecution of incitement to commit genocide. There is an abundant body of knowledge showing that state sponsored hate language and incitement predicts, initiates, triggers and promotes genocide, The Precautionary Principle states that when there is uncertainty concerning the possibility of the occurrence of a major catastrophic event, the costs of inaction far outweigh those of anticipatory preventive action. The Precautionary Principle shifts the burden of proof from those suspecting a catastrophic risk to those denying it. The Precautionary Principle, which has already been applied by the European Court of Justice to uphold the ban on the UK's beef exports, states that when there is doubt about a risk, there should be no doubt about the need for its prevention. This principle is now part of many international conventions guiding Environmental Law, especially in the European Union, and has been endorsed by the International Association for Genocide Scholars. Prevention of genocide based on the Precautionary Principle needs to build upon the 2002 Statute of the International Criminal Court, the 2004 Declaration of the Stockholm International Forum on the Prevention of Genocide, UN Security Council Resolution 1674, and the 2005 World Summit Outcome which declared he "responsibility to protect" targeted groups.

In genocide prevention, as in environmental health and disaster prevention, the case for action in applying the Precautionary Principle, as the discussants have all noted, is the catastrophic ethical cost of delaying prevention - which, as in natural disasters, can be measured in massive loss of human lives. There is an ethical import to delay in preventing genocide and genocidal terror-which is merely genocide being carried out by an NGO. The foregoing means there is an ethical imperative to deter, prevent or stop state sponsored hate language and incitement. In short, a false positive -e.g. wrongly silencing an inciter,--is much less of a problem than a false negative, e.g. letting an inciter commit his vile crime--which would be catastrophic.

Professor Gregory Stanton of Mary Washington University and GenocideWatch and Dr Rony Blum of Hebrew University and Yale University and I have advocated shifting the focus of genocide law and preventive activity from proof of intent after the event to prediction and prevention. (Memorandum submitted to Council of Foreign Relations, April 2006, via Paul Fold of US Senate Foreign Relations Committee). As is known to everyone in this discussion, The Rome Statute of the ICC, which specifies that incitement to commit genocide is a crime against humanity, is the already available platform for making this advance.

The proposal to indict the President of Iran for incitement to commit genocide is the template case study for applying the Precautionary Principle based on "predict and prevent" as opposed to "proof of intent after the event".

It is my premise that the core of a program for prevention of genocide and genocidal terror should be based on applying public health models for prediction and prevention which specify surveillance, prevention and control of early genocidal conditions and proactive interventions keyed to early predictors. Based on the lessons of the Armenian Genocide, the Holocaust, former Yugoslavia, Rwanda, Darfur, and many other genocides, it is clear that state sponsored incitement and hate language are highly specific early warning signs that should be the trip points for preventive legal action, instead of waiting for prosecution after genocide is over.

Text, subcontext, and context. The foregoing is the basis for some statements I would like to make about text, subtext, and context. The text is the threats--some claim they are merely predictions--to wipe Israel off the map as part of this decision. The subtext is the pictures of missiles below which phrases such as these threats appear. The context is the enriching of uranium in violation of UN resolutions, developing ever more advanced missile systems, promoting Holocaust denial, and supporting terror groups with explicitly stated genocidal agendas, and the fact that the President of the country carrying out such enrichment, is the most vocal advocate of these genocidal threats.

Subtext and context, I submit, are critically important. Up to Oct. 25 2005, Ahmadinejad's predecessors were quoted as having made many threats similar to those made by Ahmadinejad. These were ignored by the International legal community. Had these "inchoate" statements triggered some kind of punitive action, would we be where we are now? Re context, I would be willing to bet that Ahmadinejad--and many others--had made many similar statements on all kinds of soapboxes when he was a minor politician unknown to the world. The case for action to prevent an imminent peril emerged from the day he became President, acquired real power, his statements about wiping Israel off the map became headlines everywhere, and his government rejected all UN resolutions concerning Iran's nuclear plans.

Lapsed period between the statements and the actions. I believe the discussion of the lapsed period has to take into account the fact that children are those most vulnerable to the effects of incitement and hate language from official state sponsored sources, such as texts, media, and places of worship, and the effects may be decades later. We know that for adults, where there is an authoritarian environment, incitement can convert normal people into sadistic killers over a matter of months. But children are the most vulnerable group, as is the case for so many toxic exposures in medicine, and incitement and hate language reaching children increases the likelihood of intergenerational transmission of the effects. As with all cause-effect relationships in which the relations between exposure and effect may be years or decades (e.g. Asbestos, cigarette smoking and cancer, or DES in mothers and congenital malformations in their offspring), we cannot dismiss the case for legal action and accountability just because there is a long lapsed period between exposure and effect. Where the audience for incitement includes schoolchildren, even if there are no immediate effects, we have an obligation to apply R2P-the responsibility to protect future generations-to ensure R4L-Respect for Life.

Related Posts (on one page):

04.22.2008 at 12:26am 7 Comments 0 Trackbacks

Monday, April 21, 2008

John Ruggie on Corporate Complicity for Human Rights Violations

by Roger Alford

John Ruggie, the Special Representative of the Secretary-General on Human Rights and Transnational Corporations, issued a draft report last week that "presented a conceptual and policy framework to anchor the business and human rights debate." The section that particularly grabbed my attention was on corporate complicity for human rights violations. Notice the shift toward recognition of corporate responsibility for international law violations, something that has been debated for decades:

73. The corporate responsibility to respect human rights includes avoiding complicity. The concept has legal and non-legal pedigrees, and the implications of both are important for companies. Complicity refers to indirect involvement by companies in human rights abuses - where the actual harm is committed by another party, including governments and non-State actors. Due diligence can help a company avoid complicity.

74. The legal meaning of complicity has been spelled out most clearly in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime, as discussed in the 2007 report of the Special Representative. The number of domestic jurisdictions in which charges for international crimes can be brought against corporations is increasing, and companies may also incur non-criminal liability for complicity in human rights abuses.

75. In non-legal contexts, corporate complicity has become an important benchmark for social actors, including public and private investors, the Global Compact, campaigning organizations, and companies themselves. Claims of complicity can impose reputational costs and even lead to divestment, without legal liability being established. In this context, allegations of complicity have included indirect violations of the broad spectrum of human rights - political, civil, economic, social, and cultural.

76. Owing to the relatively limited case history, especially in relation to companies rather than individuals, and given the substantial variations in definitions of complicity within and between the legal and non-legal spheres, it is not possible to specify definitive tests for what constitutes complicity in any given context. But companies should bear in mind the considerations set out below.

77. Mere presence in a country, paying taxes, or silence in the face of abuses is unlikely to amount to the practical assistance required for legal liability. However, acts of omission in narrow contexts have led to legal liability of individuals when the omission legitimized or encouraged the abuse. Moreover, under international criminal law standards, practical assistance or encouragement need neither cause the actual abuse, nor be related temporally or physically to the abuse.

78. Similarly, deriving a benefit from a human rights abuse is not likely on its own to bring legal liability. Nevertheless, benefiting from abuses may carry negative implications for companies in the public perception.

79. Legal interpretations of “having knowledge” vary. When applied to companies, it might require that there be actual knowledge, or that the company “should have known”, that its actions or omissions would contribute to a human rights abuse. Knowledge may be inferred from both direct and circumstantial facts. The “should have known” standard is what a company could reasonably be expected to know under the circumstances.

80. In international criminal law, complicity does not require knowledge of the specific abuse or a desire for it to have occurred, as long as there was knowledge of the contribution. Therefore, it may not matter that the company was merely carrying out normal business activities if those activities contributed to the abuse and the company was aware or should have been aware of its contribution. The fact that a company was following orders, fulfilling contractual obligations, or even complying with national law will not, alone, guarantee it legal protection.

81. In short, the relationship between complicity and due diligence is clear and compelling: companies can avoid complicity by employing the due diligence processes described above - which, as noted, apply not only to their own activities but also to the relationships connected with them.

04.21.2008 at 10:42am 1 Comments 0 Trackbacks

Sunday, April 20, 2008

Pope Benedict XVI on Human Rights

by Roger Alford

Pope Benedict XVI's address at the United Nations General Assembly last week is definitely worth a read for anyone concerned about human rights. Here is an interesting excerpt on the natural law underpinnings of all human rights:

This reference to human dignity, which is the foundation and goal of the responsibility to protect, leads us to the theme we are specifically focusing upon this year, which marks the sixtieth anniversary of the Universal Declaration of Human Rights. This document was the outcome of a convergence of different religious and cultural traditions, all of them motivated by the common desire to place the human person at the heart of institutions, laws and the workings of society, and to consider the human person essential for the world of culture, religion and science. Human rights are increasingly being presented as the common language and the ethical substratum of international relations. At the same time, the universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity. It is evident, though, that the rights recognized and expounded in the Declaration apply to everyone by virtue of the common origin of the person, who remains the high-point of God’s creative design for the world and for history. They are based on the natural law inscribed on human hearts and present in different cultures and civilizations. Removing human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights.

Diane Marie Amann has more here, particularly on the Pope's affirmation of the "responsibility to protect."

04.20.2008 at 11:25pm 1 Comments 0 Trackbacks

ICTR to Hear Ntagerura's Motion to Order Canada to Grant Him Asylum

by Kevin Jon Heller

Since being unanimously acquitted by the ICTR Appeals Chamber in 2006, Andre Ntagerura has lived as a virtual prisoner in a UN safehouse in Arusha, unable to find a country that will take him. Last November, he filed a motion asking the ICTR to order Canada, his first choice, to grant him asylum. On Wednesday, the Court decided to hear what he has to say:

The President of International Criminal Tribunal for Rwanda (ICTR), Justice Dennis Byron, has granted an application to hear a motion of genocide acquitted former Rwandan Transport and Communications minister, Andre Ntagerura, who seeks relocation to Canada.

The former minister had asked the ICTR last November to order Canada to grant him asylum, stressing that it had systematically ignored the request for more than three years made by the tribunal's administration.

The decision was posted Wednesday on the tribunal's official website. The date for hearing has yet to be fixed.

Ntagerura had also requested the ICTR president to refer to the Security Council the Canadian authorities refusal to co-operate on the matter [relocation], but the argument was rejected.

If accurately reported -- I can't find the decision on the ICTR website -- Justice Byron's decision is rather surprising. Although Article 28 of the ICTR Statute requires states to "comply without undue delay with any request for assistance or an order issued by a Trial Chamber," I find it very unlikely that the ICTR would actually order a state to grant Ntagerura asylum. I sympathize with his plight, and have strongly criticized states' reluctance to even consider acquittees' asylum requests, but I don't think states should -- or can -- be forced to take them. What does seem fair is precisely what Justice Byron refused to do: refer Canada to the Security Council, which imposed on states the duty to cooperate with the ICTR in the first place.

We'll see what happens. Readers who are interested in these issues might want to check out my essay "What Happens to the Acquitted," which will appear in the Leiden Journal of International Law in the next couple of months. It's availble on SSRN here.

ADDENDUM: Peter Robinson, one of the leading defense attorneys at the ICTY and ICTR, has used my article as part of his efforts to convince the ICTR to amend Article 99 of the ICTR Statute to include the following paragraph:

(C) Upon application by an acquitted person, the President may request a State, pursuant to Article 28 of the Statute, to allow such a person to reside within its territory. The President may report a State which fails to comply with such a request to the United Nations Security Council pursuant to Rule 7 bis.

Neither Peter nor I are optimistic that his efforts will succeed, but it's still gratifying to have some impact, however minor, on the practice of international criminal law!

04.20.2008 at 5:49am 0 Comments 0 Trackbacks

Friday, April 18, 2008

Bellinger Speaks Out on ATS Litigation

by Roger Alford

Last week State Department Legal Adviser John Bellinger delivered an important speech at Vanderbilt Law School on Alien Tort Statute litigation. The speech was a fascinating analysis of the future of ATS litigation, particularly its costs and benefits. To my knowledge, the speech is the first comprehensive statement ever by a senior Administration official, Republican or Democratic, about the legal and policy issues posed by ATS litigation.

Bellinger starts with a nice summary of the significant legal questions that remain unanswered since Sosa:

This continued litigation under the ATS reflects fundamental problems with how lower courts have approached these suits. These problems center on five key issues: First, whether the ATS applies extraterritorially – that is, whether a U.S. court can properly apply U.S. federal common law under the ATS to conduct that occurred entirely in the territory of a foreign State. Second, even if such a cause of action could properly be recognized, whether exhaustion of adequate and available local remedies in that foreign country should be a prerequisite to bringing an ATS suit. Third, whether corporations or other private entities may be held liable under the ATS for aiding and abetting human rights abuses perpetrated by foreign governments. A fourth issue is how to apply Sosa’s requirement that an international-law norm be sufficiently accepted and specific. And fifth, in what circumstances should courts dismiss suits based on what Sosa referred to as “case-specific deference to the political branches”?

Bellinger then highlights the costs and benefits of ATS litigation. The three principal benefits of ATS litigation he outlines are: (1) promoting accountability and providing a public voice to victims; (2) raising public and political awareness of human rights abuses; and (3) advancing U.S. participation in the development of customary international law. But these benefits, he asserts, are not legal arguments, and may not be as great as they appear.

As for the costs, Bellinger identifies three: (1) ineffective relief in most cases; (2) “diplomatic costs” and the (3) “lack of democratic checks and accountability.” I think the diplomatic costs of ATS litigation are particularly important and real, and rarely included in the calculus of whether to allow ATS litigation to go forward. As Bellinger notes, the United States is perceived by other countries to be a “rogue actor” by encouraging international civil litigation against other countries but resisting efforts to hold the United States criminally responsible before international tribunals.

We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.

I think that argument of diplomatic costs has a tremendous amount of force. Of course, reasonable people may disagree as to whether that means we should curtail ATS litigation in the United States or welcome the possibility of international criminal litigation elsewhere against United States actors. The status quo, however, does appear duplicitous and understandably is perceived as such by other countries.

The absence of democratic accountability is another important cost of ATS litigation, and one that highlights the potential disconnect between Executive branch interests and the victims’ interests.

The Executive Branch has real interests in ensuring that as a matter of policy, ATS litigation does not interfere with its conduct of foreign relations. I have already noted foreign governments’ concerns about the scope of U.S. court jurisdiction under the ATS. In addition, recent ATS suits have been used by litigants to duplicate, replace, or proceed on top of the U.S. government’s systemic efforts to reform foreign government practices or help end foreign conflicts. Often, these suits are brought as class actions for all aliens injured by the challenged conduct, effectively asking the U.S. courts to serve as administrator of an international claims program for foreign nationals.

The solution, Bellinger suggests, is either for courts to exercise more restraint consistent with Sosa, or for Congress to introduce legislation that curtails ATS litigation in a manner akin to the Torture Victim Protection Act (which includes a statute of limitations and defined causes of action) or the Flatow Amendment to the FSIA (which allows for greater Executive branch involvement in limiting the scope of litigation).

The take away message is that Sosa’s attempt to rein in ATS litigation has largely failed and that if courts do not more carefully monitor this litigation it will continue to cause foreign relations problems.

It is an important message. I think it would be quite valuable for a scholar to carefully examine the various statements of interest and amicus briefs filed by the United States in over a dozen ATS cases, combined with the concerns expressed in Bellinger's speech to illuminate the foreign affairs concerns at stake in ATS litigation.

In sum, Bellinger appears to be echoing some of the concerns raised by the Supreme Court in Sosa. As the Court put it in that case, "Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution." Then again in a footnote the Court emphasized that a "possible limitation" to ATS litigation "is a policy of case-specific deference to the political branches.... In such cases [as the apartheid litigation], there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy." That foreign policy limit identified by the Court and now repeated by the State Department Legal Adviser has yet to be fully explored by the courts or scholars.

04.18.2008 at 12:26am 7 Comments 0 Trackbacks

Thursday, April 17, 2008

Vile Crime or Inalienable Right: A Reply to Professor Gordon

by Susan Benesch

I am indebted to Professor Gregory Gordon not only for his comments now, but for his own published work on incitement to genocide, and for fruitful debates that we are continuing here. As he knows, I disagree with his contention that the ICTR jurisprudence has identified or even “gleaned” as he puts it, a four-part test for incitement to genocide. The section of the “Media” judgment from which Gregory gleans his test [Nahimana or “Media” judgment, paras 1004-1015] is simply a rambling discussion of “general principles” that “emerge from the international jurisprudence on incitement to discrimination and violence [and] serve as a useful guide to the factors to be considered” in defining incitement to genocide. The decision lists three principles: purpose, context, and causation.

Under “purpose,” the judgment conflates purpose with intent, mentions hate speech cases only (not incitement to genocide cases), and completely ignores the Genocide Convention’s specific intent requirement, which makes the question of “purpose” moot, in my view. One point on which the jurisprudence is clear is that the inciter to genocide must have the specific intent to bring about genocide. The next “general principle,” “context,” is discussed in three disjointed paragraphs. [1004, 1005, 1006]. The first one refers to historical context, i.e., previous violence, the second notes that courts may use context to ferret out a speaker’s concealed intent, and the third discusses considerations for and against restricting speech in the jurisprudence of the European Court of Human Rights. Again, there is no reference to incitement to genocide. Finally, under “causation,” the judgment finally mentions incitement to genocide, and notes that the crime carries no causation requirement.

Gregory notes that the ICTR’s jurisprudence has given examples of discourse “falling between [the] two extremes” of historical research and news reporting, on the one hand, and “explicit calls for violence” on the other. That’s true, but that shows only that the ICTR has correctly identified the two (obvious) ends of the spectrum. The necessary task, which the ICTR did not accomplish, is to distinguish between adjacent points along the spectrum: between hate speech and incitement to genocide.

It is no surprise that the Canadian Supreme Court did not apply the four-part test at all, much less “explicitly and systematically,” since it is not in the jurisprudence. I take Gregory’s point that a Canadian appeals court seems to have run off the rails when it understood Mugesera’s November 1992 speech to be about “elections, courage, and love,” but it is worth noting that there was fervent debate about how to translate the speech from the original Kinyarwanda, which made room for expert disagreements about its meaning. Also, even if three other Canadian courts reached the correct conclusion, criminalization of speech is such a delicate, dangerous, and important operation, in my view, that it must be rigorously explained.

Just two final points. I didn’t say (or didn’t intend to say) that since seventeen months elapsed between Mugesera’s speech and the Rwandan genocide, the speech cannot have been incitement to genocide. What I meant to argue is that some length of time would be too long, making the connection between speech and genocide too attenuated for criminal responsibility. For this reason, it is more logical to ask whether a speech created a reasonably possibility of genocide when the speech was made, than whether the speech influenced a genocide that took place much later.

Finally, Gregory argues that my reasonable possibility test is at odds with the inchoate nature of the crime, and that the test “opens a conceptual fissure” that might improperly admit a causation requirement. On the contrary, the reasonable possibility test allows for incitement to genocide to be identified (and prosecuted) whether genocide ensues or not.

In sum, we agree on the goal of prosecuting incitement to genocide vigorously while protecting speech as much as possible. The only question is precisely how to accomplish this, if the law – that blunt instrument – can manage such an exquisite balance at all.

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04.17.2008 at 2:00pm 0 Comments 0 Trackbacks

Defining Incitement to Genocide: A Response to Susan Benesch

by Gregory Gordon

[Gregory Gordon is Professor of Law, University of North Dakota School of Law.]

I would like to begin by thanking Opinio Juris for inviting us to have this important discussion here about the crime of direct and public incitement to commit genocide. I would also like to congratulate Susan Benesch on her excellent article regarding this verbal harbinger and prerequisite of mass atrocity. Professor Benesch provides a much needed exploration of the more complex facets of incitement that will afford jurists, advocates, and would-be offenders greater clarity in assessing the process by which permissible speech corrodes into forbidden exhortation.

But I cannot share in Professor Benesch's conclusion that the crime of incitement remains "alarmingly" ill-defined. As I point out in my articles A War of Media, Words, Newspapers and Radio Stations: The ICTR Media Trial Verdict and a New Chapter in the International Law of Hate Speech, 45 VA. J. INT'L L. 139, 150 (2004) and From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework, 98 J. CRIM L. & CRIMINOLOGY (forthcoming June 2008), jurisprudence from the Rwandan incitement prosecutions has gleaned four criteria through which speech content regarding race or ethnicity can be analyzed as either legitimate expression or criminal advocacy: (1) purpose; (2) text; (3) context; and (4) the relationship between speaker and subject.

With respect to the "purpose" criterion, this jurisprudence has provided some examples of legitimate objectives: historical research, dissemination of news and information, and public accountability of government authorities. At the opposite end of the spectrum, explicit calls for violence would evince a clearly illegitimate purpose. The International Criminal Tribunal for Rwanda has given examples of discourse falling between these two extremes, including permissible speech focusing on ethnic animosity but geared toward raising ethnic consciousness, not provoking ethnic violence.

The "text" criterion, which entails a rigorous parsing of the words themselves, helps further reveal the purpose of the speech and provides an important piece of the contextual puzzle. The "context" criterion, arguably the linchpin of the entire analysis, mandates an examination of the circumstances external to and surrounding the text so that its true significance can be divined. This includes situating the words and their utterance within the relevant linguistic, social, economic and historical framework. In applying this criterion, we must, among other things, ask whether the speaker embraced the views espoused or distanced himself from them. We also have to consider whether the speaker is using code words or indirect means of inciting the audience in a way that will be grasped by listeners at that time and place.

Finally, the case law instructs the finder of fact to examine the relationship between the speaker and the subject. According to this part of the test, the analysis should be more speech-protective when the speaker is part of a minority criticizing the government or the country's majority. In all due respect, the application of this four-part test certainly calls into question Professor Benesch's conclusion that "a mere racist could be convicted of a crime tantamount to genocide, and speech may be unduly and dangerously restricted."

Still, Professor Benesch refers to a poorly reasoned intermediate court decision in the Léon Mugesera case, subsequently overturned by the Canadian Supreme Court, to illustrate how "alarmingly" ill-defined the crime of incitement remains. In addition to being reversed by the Supreme Court, that decision was at odds with two lower court decisions finding Mugesera's speech constituted incitement. The decision's interpretation of Mugesera's speech as being about "elections, love and courage" is instantly discredited by the language of the portions of the speech at issue. For example:

You know there are 'Inyenzis' [cockroaches] in the country who have taken the opportunity of sending their children to the front, to go and help the 'Inkotanyis' [Tutsi warriors, fierce fighters] .... Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? ... [We] must do something ourselves to exterminate this rabble.... I asked if he had not heard of the story of the Falashas, who returned home to Israel from Ethiopia? He replied that he knew nothing about it! [I] am telling you that your home is in Ethiopia, that we will send you by the Nyabarongo so you can get there quickly'.... Another important point is that we must all rise, we must rise as one man ... if anyone touches one of ours, he must find nowhere to go.

Of course, the Canadian Supreme Court engaged in the kind of rigorous exegetical analysis necessary for evaluation of incitement allegations and included a contextual examination of the term "Inyenzi" as well the murderous metaphoric significance of transporting Tutsis to an ethnic-stereotype "homeland" via a non-navigable river traditionally used to dispose of corpses after ethnic massacres (even though it did not explicitly and systematically apply the four-part test). Thus, when seen in the larger context, the intermediate court's decision represents a sui generis aberration in a string of decisions that had no difficulty finding Mugesera's words constituted incitement. Such an anomaly is certainly not evidence of an "alarming" definitional deficit. (Professor Benesch comments that Mugesera's speech preceded the Rwandan genocide by too long -- seventeen months -- but she ignores the essential point, made in the Canadian decisions finding incitement, that the speech itself was preceded and followed by large-scale ethnic violence – that was the context which permitted a finding of incitement.)

Nevertheless, as a solution to this perceived problem, Professor Benesch proposes a brand new test -- that a speech be considered incitement to genocide if there is a "reasonable possibility" that genocide can occur when the speech was given. Although Professor Benesch acknowledges that causation has been rejected as a requirement for establishing incitement, I am afraid her proposed test creates enough of a conceptual fissure to let causation slide in through the back door. I submit that a retrospective actuarial assessment of the prospects for genocide is at odds with the fundamentally inchoate nature of the incitement crime. That an inchoate crime is committed prior to, and independently of, the object crime is axiomatic. The main purpose of punishing inchoate crimes is to allow the judicial system to intervene before an actor completes the object crime. The crime carries such a high risk for society that it must be punished without reference to subsequent acts, if any, of genocide. The crime is complete when the words are spoken in the proper context. And while it is true that incitement has never been prosecuted without a subsequent genocide occurring, adopting a test which would tend to perpetuate that pattern would needlessly cabin incitement law, which I believe should be used for its intended function -- pre-atrocity deterrence, as opposed to mere post-atrocity punishment.

That said, the likelihood of subsequent violence given the circumstances surrounding a speech and the mental perspective of its listeners indirectly factor into the contextual analysis already called for in the law's current iteration. Accordingly, the prongs of Professor Benesch's six-part test do a wonderful job of fleshing out the existing four-part test. And so I view her analysis as an invaluable addition to incitement law.

In fact, I think it important to acknowledge that the analytic framework for incitement law is still developing. As I point out in my articles, the ICTR Media Case does not even explicitly set out a four-prong test – I argue that the test should be further refined to include four prongs, instead of what is formulated as two (purpose and context – although, as I indicate, the ICTR does actually engage in the analysis of text and relationship between speaker and subject without explicitly acknowledging it). And as I recognize above, the Mugesera Supreme Court decision was not sufficiently disciplined in its analysis to apply the test in a systematic, step-by-step way (although it does ultimately cover the essential components of the test). I also lament in my articles that the existing case law does not go far enough in identifying different types of incitement (such as "accusation in a mirror," among others) and so I believe Professor Benesch's contribution is timely and vital. I merely propose that her six-prong test be integrated into incitement law's existing framework, which has been growing organically. In short, there is no sense in throwing the proverbial baby out with the bath water by adopting a new "reasonable possibility" test, which would likely lock incitement into its traditional role of retrospective punishment device and retard its recent evolution toward prospective deterrence mechanism. We must vigilantly protect free speech whenever and however we can but never at the cost of laying the groundwork for another genocide.

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04.17.2008 at 12:45pm 0 Comments 0 Trackbacks

Vile Crime or Inalienable Right: A Reply to Drumbl and Keitner

by Susan Benesch

Professor Mark Drumbl has put his finger on a key conundrum: that early, “entrepreneurial” speech offers the best opportunity for genocide prevention because it is the speech that primes a society for genocide, but it is also far more difficult to define than blatant incitement, uttered on the brink of genocide. The problem was beautifully captured in metaphor by a witness at the ICTR’s “Media” trial, who said that the notorious radio station RTLM had “spread petrol throughout the country little by little, so that one day it would be able to set fire to the whole country.” [Mugesera or “Media” judgment, ¶ 436]. As the witness implied, the crime that matters most is spreading the petrol, not striking the match. I wrestled with this, and constructed a definitional model that captures the later drops of petrol, but not the first ones. Incitement to genocide must be limited to speech that calls for genocide, albeit in coded language, and it must be distinguished from hate speech, which is not an international crime. Wibke Kristin Timmerman has suggested that hate speech become an international crime, but I don't agree - at least not for prosecution by international criminal tribunals. Hate speech is criminalized quite differently in various bodies of municipal law, often in idiosyncratic response to national history. International criminal law should not attempt to supplant this, in my view. And in response to Professor Chimène Keitner’s question, I would not argue for a customary international law prohibition against incitement to genocide, since a customary norm would likely be imprecise, and subject to the usual debate over when it has crystallized. Incitement to genocide should be clearly defined in international criminal law as the extraordinary crime that it is.

I was disappointed that the appeal decision in the Media case seems to set the threshold higher than I suggest, by finding that only RTLM broadcasts after April 1994, when the genocide began, constituted incitement to genocide. The appeals panel did not make it clear, however, whether it imposed this limitation simply for lack of evidence that the pre-April broadcasts “contributed significantly to the commission of acts of genocide” or for analytical reasons.

I share Mark’s skepticism that courts and tribunals will prosecute before a genocide takes place, and I agree that other methods, such as “information intervention” like radio jamming, have a much better chance of preventing or at least limiting genocide. Chimène suggests that before my test can be used for ex ante interventions, one would have to explain how that would work. When could state sovereignty be breached by radio jamming, who would identify incitement to genocide, and so on? Chimène is quite right. I admire the proposal that Jamie Frederic Metzl outlined in his article "Rwandan Genocide and the International Law of Radio Jamming," as well as his arguments that the end of the Cold War removed some longstanding obstacles to such relatively low-cost, high-tech humanitarian interventions, so I punt to him. Metzl found it important, notably, that “a relative consensus can be maintained regarding the international definition of incitement.”

The criminal law should not be left out of the picture even if it cannot prevent genocide, as Mark points out, as it also has important expressive and didactic goals. At their best, international tribunals and courts take part in the contemporary effort to understand how and why atrocities are committed. So tribunals should focus not only on the defendants who bear great criminal liability and responsibility, but also on the crimes that did the greatest damage. Defendants should be prosecuted for the acts they committed that contributed to bringing about genocide and other atrocities – more than for the acts that didn't really make much difference, or that must be stretched to fit a criminological template. For example, civilian political leaders should be prosecuted for conflict entrepreneurship, rather than for civilian superior liability, which is often an attempt to adapt command responsibility to a civilian context where it inherently doesn't apply. This is why tribunals should focus on speech as a crime – difficult though that is – as the ICTR continues to do in the trial of the pop star Simon Bikindi, and as the ICTY is now doing in the trial of the propagandist Vojislav Seselj.

Chimène also asks how my reasonable possibility test compares with other criminal laws tests regarding probable consequences, and I cannot yet answer adequately – that useful question is now on my list for future inquiry.

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04.17.2008 at 11:46am 0 Comments 0 Trackbacks

Vile Crime or Inalienable Right: A Response to Susan Benesch

by Chimène Keitner

[Chimène Keitner is Associate Professor of Law, UC Hastings Law School.]

I’m delighted to join this conversation about Susan Benesch’s analysis of the international crime of incitement to genocide. As Susan’s title indicates, she seeks to distinguish this crime from the exercise of free speech rights guaranteed under U.S. law. Viewed in this light, her project forms part of an ongoing dialogue about the interaction between national and international criminal law. Below, I briefly summarize my understanding of Susan’s argument. I then identify two questions for further discussion in this forum and beyond.

Susan is concerned primarily with “major genocides with high degrees of civilian participation” (494 n.40). She observes that, historically, such genocides have been “carried out by state employees, albeit often aided by civilians” (495). Based on this observation, she characterizes incitement to genocide as “speech in the service of the state” (id.). Even “free speech devotees” (id.), she argues, should be loath to protect this kind of speech. However, the Genocide Convention does not provide a sufficient basis for differentiating between criminal speech and protected speech. Susan’s article aims to fill this gap.

Susan sets out to craft a definition of incitement to genocide that accounts for its central role in conditioning people to commit and accept violence (498–500). She endorses a constructivist view of genocide, and rejects “primordialist” accounts of identity-formation that, in her view, “excuse[] the international community from doing much to prevent the next massacre or genocide” (501). I found this part of the article intriguing, as I have spent a great deal of time puzzling through similar issues in the context of my study of nationalism. (See especially Chapter 5 of my book, THE PARADOXES OF NATIONALISM: THE FRENCH REVOLUTION AND ITS MEANING FOR CONTEMPORARY NATION BUILDING).

My sense is that Susan talks about the sociological foundations of genocide because she wants to convince skeptical readers that criminalizing incitement should not be out of the question, even though it involves criminalizing speech. Susan points out that U.S. law criminalizes speech that is “likely to lead to imminent lawless action” (495). However, she finds this test too narrow in the context of genocide, because “[e]ven a small risk of genocide is too much” (495). Instead, she proposes a six-prong test to “aid in identifying (498) the crime of incitement to genocide for the purposes of preventing and prosecuting it.

1. How can we manage different allocations of the values of speech vs. security at the national and international levels?

Susan indicates that her six-part test is intended to provide an interpretive aid, rather than a list of elements of the crime. In other words, her project is not, strictly speaking, a doctrinal one. However, because of the project’s doctrinal implications, it would be useful to engage more concretely the conflict Susan frames at the outset between the U.S. standard for incitement and the international criminal law test she proposes. Even if there is no customary international law against hate speech (492 n.33), is there—or would Susan like to see—a more robust customary international law prohibition of incitement to genocide? If so, does the four-part test applied by the ICTR in the Media case (489 n.17) accurately reflect this standard?

2. What is the appropriate relationship between criteria for prosecution and criteria for prevention?

Susan suggests that accurately identifying incitement presents important opportunities for prevention, because incitement is an inchoate crime (494 n.42). She highlights the U.S. government’s decision not to jam the RTLM signal and prevent the dissemination of genocidal messages in Rwanda (488 n.12), and indicates that her six-part test should inform the deliberations not only of courts, but also of those contemplating “genocide-prevention efforts” (489).

It strikes me as potentially problematic to conflate these two scenarios without more detailed analysis. If we are going to use the six-prong inquiry to identify triggering conditions for the ability—or even obligation—to breach state sovereignty in order to disrupt telecommunications, then we should talk concretely about the parameters of such an obligation, and how it could be operationalized. This is a compelling and important project, which Susan hints at but does not pursue here. If we are concerned with criminal prosecution, it seems to me important to discuss at greater length how Susan’s “reasonably possible consequences” test compares to other criminal law tests regarding probable consequences, so that domestic and international jurisprudence incorporating this test can be predictable, consistent, and legitimate.

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04.17.2008 at 10:45am 0 Comments 0 Trackbacks

Defining Incitement to Genocide: A Response to Susan Benesch

by Mark Drumbl

[Mark Drumbl is the Class of 1975 Alumni Professor of Law, Washington and Lee University School of Law.]

Susan Benesch’s VJIL article is timely, thoughtful, and important. She insightfully sets out the catalytic relationship between hate propaganda and genocide. Her comparison of the methodological similarities between the Rwandan and Nazi German contexts is instructive. The mainstreaming of hate-mongering is a condition precedent for genocide to become truly massive. Consequently, if the criminal law could shut down hate-mongering before actual genocide - for example, by incapacitating the conflict entrepreneur before violence is normalized - then it might fulfill a preventative function. Susan’s proposed reforms to the definition of incitement (the “reasonably possible consequences” test) take us some of the way there. In all likelihood, however, prevention through criminal punishment would require an even lower threshold for incitement than Susan’s proposed test. If a speaker can only commit incitement to genocide if the audience “must already be primed, or conditioned” (p. 494) to respond, then might it already be too late? Deterrence no longer may be possible – assuming the criminal law ever can serve a deterrent function in this situation. As a matter of pragmatics, I wonder whether any criminal tribunal or court would prosecute incitement to genocide in the absence of a genocide actually having occurred. Consequently, truly effective preventative efforts may best be had in areas such as humanitarian communications intervention, radio jamming, broadcasting of diverse views, as well as forcible measures. That said, the criminal law also aspires to serve retributive, expressive, and didactic goals ex post, and Susan’s reformulation of the law helps provide clarity, consistency, and proportionality in each of these regards.

I couldn’t agree more with Susan’s conclusion. She identifies among the reasons that current law on incitement has “go[ne] astray” that courts “try[] to understand international crimes simply as large-scale versions of domestic offenses” (p. 528). In my opinion, this is the case not only when it comes to substantive crimes such as incitement, or the role of freedom of expression as a “defense,” but also in a variety of other substantive, procedural, and correctional assumptions that underpin international criminal law generally. Collectivized eliminatonist genocide, as Susan rightly points out, is not the same thing as an isolated deviant hate crime. Extending “freedom of expression” from the rarified confines of a marketplace of ideas in a settled democratic polity to condone incitement in a context of state monopolies over eliminationist rhetoric is ill-fitting.

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04.17.2008 at 9:45am 0 Comments 0 Trackbacks

Vile Crime or Inalienable Right: Defining Incitement to Genocide

by Susan Benesch

Many thanks to Opinio Juris for the invitation to blog, to the Virginia Journal of International Law for publishing my article "Vile Crime or Inalienable Right: Defining Incitement to Genocide," and to Mark Drumbl, Chimène Keitner, and Gregory Gordon for commenting.

The article argues that incitement to genocide demands keen attention because it is a precursor to genocide, and may be a prerequisite for it. Public speech is often the means by which ‘conflict entrepreneurs’ – to use Mark’s thought-provoking term – ‘exacerbate discriminatory divisions which they then commandeer.’ (Atrocity, Punishment and International Law, p. 25).

However the crime remains alarmingly ill-defined. Courts have begun to decide cases on incitement to genocide during the last decade, beginning with the ICTR’s conviction of Jean-Paul Akayesu in September 1998, but have failed to explain adequately what incitement to genocide is, or how to identify it. The confusion is so great that a Canadian federal appeals court found that a November 1992 speech by the Rwandan Hutu activist Léon Mugesera showed him to be “a fervent supporter of democracy” who spoke of “elections, courage, and love” – and then the Canadian Supreme Court concluded that the same speech constituted incitement to genocide.

The Genocide Convention, which simply describes incitement to genocide as “direct and public,” does very little to limit the crime and, especially, to distinguish it from hate speech. Without a reliable distinction, a mere racist could be convicted of a crime tantamount to genocide, and speech may be unduly and dangerously restricted. Another knotty problem that courts have so far side-stepped is the temporal one. Since it takes time to persuade a group of people to condone and/or participate in genocide, incitement to genocide must not be limited to statements made on the immediate brink of genocide, or once it has already begun. But Mugesera’s speech was given seventeen months before the Rwanda genocide started, and there must be some lapse of time that would be too long, even though courts have found that there is no causation requirement for incitement to genocide. To solve this problem, I propose that a speech be considered incitement to genocide if there is a reasonable possibility that genocide can occur when the speech was given – irrespective of whether genocide actually takes place later. Note that the “reasonable possibility” standard is not inconsistent with criminal law, since it is not to be used as a standard of proof, but rather as an aid in defining or recognizing a crime.

To evaluate when there is (or was) a reasonable possibility that a speech will lead to genocide, I propose a six-part test. The first inquiry is whether the speech was understood by its audience, at the time it was made, as a call to commit genocide. (It is not enough to examine the plain meaning of the speech, since coded language is often a feature of incitement to genocide.) The second inquiry is whether the speaker had some form of influence over the audience. This emerges from my observation that anyone can commit hate speech, but incitement to genocide requires some form of influence over the audience. Political or state authority is not necessary and may in fact be weaker than the influence of someone like Simon Bikindi, the Rwandan pop music idol who is now a defendant, charged with incitement to genocide, at the ICTR.

A third inquiry is whether the speaker used what I call hallmarks of incitement to genocide – techniques that prepare the audience psychologically for genocide. One such technique is to announce that the intended victims are plotting to massacre the audience: the Jews will annihilate you Germans if you don’t kill them first, the Tutsi are coming to wipe out you Hutu. This makes genocide seem necessary, like homicide in self-defense. The other three ‘prongs’ narrow incitement to genocide by describing a social context in which conflict entrepreneurs have already taken other damaging steps: disseminating hate speech, quashing dissent so that the poisonous speech cannot be neutralized by the marketplace of ideas, and promoting violence against the intended victims. If all six prongs of the test are satisfied, it is reasonably possible that the speech will lead to genocide.

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04.17.2008 at 7:05am 0 Comments 0 Trackbacks

Wednesday, April 16, 2008

Defense Perspectives on Law and Politics in International Criminal Trials: A Reply to Professor Heller

by Jenia Iontcheva Turner

Many thanks once again to Kevin Heller for his thorough review of the article, for his kind compliments, and for his very insightful comments. Kevin is highly qualified to evaluate the article, and I can already see that I am benefitting from this exchange. I am very pleased that he believes the article to be useful and that he agrees with me on a number of points. At the same time, I will take this opportunity to address a couple of the issues that he highlights as possible points of divergence.

First, I will address Kevin’s points about the undesirable effects of the ICTY’s and ICTR’s “Completion Strategy” and the ICTR’s decision to take judicial notice of genocide. The two are related. The decision to take judicial notice was made in an effort to expedite trials. This was also the main goal of the Completion Strategy, which is the term for the Security Council’s mandate that the tribunals complete their work in the next several years. As I pointed out in the article, to the extent that efficiency is pursued at the expense of fairness and accuracy, possibly leading to unjustified convictions, the tribunals may in fact be moving toward a political model, and one devoted above all to efficiency. (This may be a move toward a “managerial model,” to quote Maximo Langer, who has analyzed it in greater depth). It was beyond the scope of the article to examine the full effects of the Completion Strategy and this move toward efficiency. I agree with Kevin that the Completion Strategy has reduced the perceived fairness of the tribunals among a number of defense attorneys and outside observers (including Kevin himself, in his excellent piece in the American Journal of International Law). And to the extent that it has compromised defendants’ rights to present evidence, to confront witnesses, or to contest all the specific charges leveled against them, it may have, in fact, reduced the fairness of trials. So I would acknowledge that the Completion Strategy in some respects represents a shift toward the political goal of efficiency over the adjudicative goal of apportioning guilt and innocence in a fair manner.

At the same time, as I discussed in the article, commentators and defense attorneys sometimes overlook incidental effects of the Completion Strategy that may in fact favor defendants. For example, as some defense attorneys whom I interviewed acknowledged, the Completion Strategy has led judges to trim overbroad indictments and to discourage or prevent prosecutors from introducing evidence that is cumulative or unrelated to the charges against the accused. To this extent, it has nudged trials away from some of the broad political goals which animated the work of the court in earlier years—for example, the goals of pursuing a fuller historical record and giving victims the opportunity to achieve closure by testifying in court. In short, I believe that the effects of the Completion Strategy are complex and do not entirely favor the prosecution or the political model.

Next, I will address Kevin’s comments about some of my statements that he believes may express a dismissive attitude toward defense attorneys. Throughout the research and writing of the paper, I tried to maintain a neutral and detached perspective concerning the role of defense attorneys at international criminal trials. But it is instructive for me to see that some of the statements do not appear to be entirely balanced in the eyes of a careful and knowledgeable reader. I would like to provide some further explanation of my intended meaning with respect to some of the statements that Kevin quoted.

My statement that “[i]t is likely that, when defense attorneys refrain from political arguments, they are simply making a strategic decision,” did reflect the responses of some of my interviewees. A number of defense attorneys made statements such as “judges do not like political arguments” and “such arguments are generally useless.” This suggested to me that they decided not to make political arguments at least in part because they thought the arguments are not likely to be successful. I do agree that these comments do not provide a full explanation why defense attorneys refrain from political arguments, and I offered other explanations of the defense attorneys’ decision to do so –although these explanations were perhaps more tentative than I meant them to be. I pointed out that the distance of the international tribunals (and their lawyers) from the communities involved in the conflict may be a critical factor that enables the lawyers to avoid becoming embroiled in the political aspects of the trials. Second, in a later section, I explained how professional norms of attorneys further shape the decision not to make political arguments. Namely, I argued their education and work experience in an adjudicative model of criminal trials has likely instilled in them a respect for the rule of law and a reluctance to resort to political arguments. A number of attorneys simply believed that resorting to political arguments was not behavior befitting a good lawyer. This is a finding that was quite striking to me and I hope to examine it in greater depth a future essay on the professional norms of defense attorneys in international criminal tribunals.

Once again, I would like to thank Kevin for taking the time to read the paper so thoroughly, and for offering his very useful and thought-provoking comments. I look forward to continuing the conversation about the purposes of international criminal trials and about the role of defense attorneys in these trials.

A final thanks again to Opinio Juris and the Virginia Journal of International Law for giving me the opportunity to take part in this exchange.

Related Posts (on one page):

Defense Perspectives on Law and Politics in International Criminal Trials: A Reply to Professor Heller
Defense Perspectives on Law and Politics in International Criminal Trials -- A Response

04.16.2008 at 6:54pm 2 Comments 0 Trackbacks

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Opinio Juris

A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics

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Recent Posts

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A weblog dedicated to reports, commentary, and debate on current developments and scholarship
in the fields of international law and politics