International House of Dan: March 2005

Thursday, March 31, 2005

Evil Soccer Game Ends in Violence

The remaining members of the "axis of evil" faced off Wednesday in Pyongyang's Kim Il-sung stadium, as Iran visited North Korea for a World Cup qualifier. Both Iran and North Korea scored on North Korea, and the resulting 2-0 score sparked violence from the home fans. Police and military lined the track separating the field from the crowd of 60,000 "after defender Nam Song-chol was sent off for shoving Syrian referee Mohamed Kousa."

I could find no comment from the State Department, but I suspect that the North Korean's shoving of the Syrian referee will be interpreted as a sign that Syria is not yet evil enough to belong to the "axis." Iran, on the other hand, solidified its leadership among evil countries, as Wednesday's violence comes just days after 5 were trampled in Tehran by 100,000 fans following a 2-1 win over visiting Japan.

Saturday, March 26, 2005

A Note on the Iraq War

Note: This post was originally set to be posted on March 19th.

Just over two years ago I sat with friends in Columbia, MO watching President Bush announce plans to take military action against Iraq in the coming months. It seemed odd at the time, since there basically hadn't been a peep out of the country since the last war, save a couple of flights out of the no-fly zone, and since Osama Bin Laden was still in the news then. Over the years I've grown accustomed to Mr. Bush prioritizing "out of the blue" issues in order to draw attention away from more pressing matters, Iraq distracted us from Bin Laden, gay marriage from Iraq, the whole Mars thing... well, that didn't really get anywhere, but still. Anyway, two years ago today, the current Iraq war was launched, and to mark the anniversary of the affair I've decided to write a quick note on the legality of war in international law under the U.N. System, as applied to Iraq.

First, there are two big legal concepts which are relevant to the legality of war: jus ad bellum and jus in bello. The latter is better known, it regards the laws of war (authorized uses of force, treatment of civilians, proportional responses, etc.), but the former is more relevant for this post, as it deals with the legal basis for the war to take place at all. The Iraq war has been mislabeled a preemptive war, it is really more of a preventive war, and this is significant from a jus ad bellum standpoint in that the legal standards for each are different. Despite White House rhetoric, the evidence has shown that there was no imminent attack on the U.S., and there lies the key distinction. For us to argue that "our best intelligence at the time" suggested an imminent attack is absurd, and would retroactively validate Nazi Germany's justifications for invading Russia based on that their best intelligence at the time suggested that Russia would otherwise invade them.

Preventive war is aggressive war, and needs to meet a high threshold of justification before it can said to be legal. Our starting point must be the Charter of the United Nations, Chapter VII, on acts of aggression and threats to and breaches of peace. Article 41 grants to the Security Council the authority to decide upon measures, not amounting to war, by which to enforce international peace. There is nothing in the Charter to limit the number of U.N. Resolutions that can be passed towards this end before armed conflict becomes a necessity. Article 42 then vests, in the Security Council, the authority to direct armed attack should it find that the measures it adopted under Article 41 were not sufficient. I've read the U.N. Charter many, many times, and it's pretty clear that the Security Council gets to decide when to use force to enforce its Resolutions, not Dick Cheney. By demanding more time for inspections, the Security Council was in fact following its own process of ascertaining the progress made under Article 41 measures before deciding to move on to Article 42 measures. If anybody is wondering, this is what it looks like when the Security Council authorizes military action to enforce its resolutions.

The new Iraq war is really the old Iraq war. Our stated basis for launching military operations was that Iraq's failure to comply with U.N. Resolutions materially breached the existing cease-fire. In other words, we never left.

The U.S. has also cited Article 51, which provides that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." This is all well and good, but the only armed attack that occurred against a Member of the United Nations was the one launched by us. The matter of self-defense necessarily takes us back to the preemptive/preventive threshold.

Diplomacy moves slowly, but that is because the stakes at its table are so high. Two years after this whole mess began, I wonder how many lives have been lost because of our failure to follow the rule of law. I won't get into the debate on the other justifications for military action against Mr. Hussein, like his monstrous record. My views on this rationale are clear, I support action against tyrants, but I support it even-handedly. I do not support it as a pretext for action against a particular leader, because a country cannot claim moral indignation at human rights abuses in Iraq while it debates acting on worse and ongoing human rights abuses elsewhere. I do not support it while we fight the International Criminal Court. Not that it matters, because the Resolutions in question pertained solely to disarmament, not to human rights abuses.

This only begins to scrape the surface of the legal issues involved, but I hope it serves as a decent starting point. I hope I won't still be writing about this in a year, but I think we all know that, sadly, I probably will.

One More "Stan"

I've been asked about Kurdistan, the semi-autonomous region in northern Iraq and the non-autonomous region in Turkey that neither Iraq or Turkey want to see exist... Anyway, you can get Kurdistan news here, I just didn't include it because it's not yet a country. A good rule of thumb for countries is that they have to have the things listed in Article 1 of the Montevideo Convention of 1933: permanent population, defined territory, government, and ability to enter into foreign relations. Kurdistan is a little short on items two and four...

Friday, March 25, 2005

News From Molvania

I remember reading about Molvania a while back, and chose it as the backdrop to a quick review of recent events in those Eurasian countries Americans like to mix up... all those countries whose names end in "stan" that are not Afghanistan.

We begin with the most well-known one, Pakistan. The Bush administration has decided to reward our South Asian ally in the "war on terror" by selling some F-16's to them. This has obviously made India less than happy, which is good, because Indo-Pakistani relations were starting to get a little boring, right? It's especially calming to see Pakistan get advanced weaponry from us, because they've never been known to sell nuclear technology to our enemies...

On to Kyrgyzstan, where a recent popular uprising has ousted President Askar Akayev. This is the latest installment in the new Cold War, wherein the U.S. and Russia compete for the attention of breakaway Soviet countries that we value because of their proximity to the Middle East, and the Russians value because of their proximity to Russia. The U.S. is staying neutral on the issue, presumably because Kyrgyzstan is difficult to pronounce. (FYI, since I started writing this post, the opposition leader, Kurmanbek Bakiyev, has taken the reins and begun assembling an interim government... the world moves fast, people!)

Up next, Kazakhstan, who is set to join the space race by launching small satellites off of Russian planes. This reminds me of an old "Dilbert" strip where Elbonia, a stereotypical Soviet breakaway country won a contract to launch satellites and tried to do so with a giant slingshot. Anyway, Mr. Akayev was in Kazakhstan for a while as he fled Kyrgystan, and the Kazakh government is hoping external factors won't cause similar rebellions there before the upcoming elections.

Then on to Turkmenistan, where "President" Niyazov wants to close all hospitals outside the capital, Ashgabat, so that Turkmenis needing hospitalization from all corners of the 500,000 square km nation will have to take a little road trip in order to receive medical treatment. Niyazov said "in the capital, you can be treated by doctors. These regional hospitals are not needed." This is the man who in 2002 renamed January after himself, April after his mother, and September after a book he wrote (students are tested on the book before being admitted to college), and renamed the days of the week, except Friday. Yeah...

Now who could forget Tajikistan? Well... Tajikistan is probably next, they had elections at about the same time as Kyrgyzstan and the Tajik opposition is already calling for similar action. Their elections are being contested pretty heavily, and I think they recently took over from Russia as guards at the Tajik-Afghani border. Not much there, moving on...

We close with Uzbekistan, our human rights abusing allies in the "war on terror." Uzbek treatment of political opposition is pretty notorious, they're pretty much always being criticized by everyone because of executions, disappearances and the like. Uzbekistan is a perfect destination for low level detainees who we would like to subject to torture without anyone knowing about it. Our strong support of the Uzbek government has been a source of constant criticism, but it's close to Afghanistan, and they let us set up bases there, so...

By the way, if anyone cares, "stan" comes from ancient Indo-European languages and means "home" or "place".

Wednesday, March 23, 2005

Thoughts on Schiavo

First of all, today is Wednesday, so those who've ordered Genocide t-shirts, remember to wear them. I have four comments to share on the Schiavo thing going on right now:

1) The name is Terri Schiavo, and I cannot understand why the media keeps pronouncing it "Schaivo". My bewilderment was solidified when a guest commentator on NPR today pronounced it with the "i" before the "a" (Shee-ah-voh), as I pronounce it. Read this point again, I'm not saying that my pronunciation is correct, only that pronouncing it Schaivo (Shah-ee-voh) seems odd.

2) While on the media, why are so few writing or talking about what caused the "potassium deficiency" that put her in this situation? The woman was bulimic. There are many of these "blogs for Terri" out there who try to refute this, arguing that she was never diagnosed with an eating disorder. (You find more of them if you spell "bulimia" with and "e"). The assertion that she was bulimic flows from the successful multi-million dollar malpractice suit filed on her behalf following her collapse. (If a civil suit finding on Schiavo won't persuade people of her condition, then people should afford the same skepticism to the civil verdict against O.J. Simpson). Without getting into the irony of a woman's decision to starve herself, although it could kill her, resulting in the public's decision not to let her starve, because it will kill her, I do feel that the media as a whole is missing out on a tremendous opportunity to educate young women on the dangers of eating disorders.

3) While on what the media is and is not reporting, I find it very interesting that the same Republican party that champions state and individual rights when it comes to Social Security, education, church and state, and abstinence education (among others) finds it necessary to side with "big government" when it comes to this case. In a rare bow to the far right reactionaries who happen to share a party with Lincoln, I commend those who've picked up on this hypocrisy and denounced the unconstitutional and politically motivated waste of government time and resources that is legislating the fate of an individual.

4) While on politically motivated exercises, I have to call President Bush on his thinly veiled attempt to use this woman's tragic situation to advance his crusade against a woman's right to choose. His brief statement on Schiavo, and the message that Republicans are being careful to stick with, is that they want to create "a presumption in favor of life". Literally, "pro life". Make no mistake about it, this goes right along with charging two counts of murder for killing a pregnant woman, it is nothing more than trying to set the stage for an assault on Roe v. Wade. I know that most of you who read this little blog have already picked up on the Right's "subtlety", but I feel that I have to stress it, in case there's somebody reading over your shoulder who has not.

Also, sorry I've been absent, I've had internet access issues coupled with a looming deadline for a report on the judiciary and local government of Ghana for Lawyers Without Borders... oh yeah, and work. There will soon be a flurry of posts, as I finish my St. Pat's deal and "U.S. vs. Treaty Law, Part III", as well as a primer on the international law of war that I started for the anniversary of the Iraq invasion on the 19th.

Thursday, March 17, 2005

Media Coverage of Wolfowitz Nomination

When I wrote about my concerns over the recent trends in Bush appointments I had a hard time finding mainstream media coverage of the issue. Today, though, I have found pieces on the subject from AFP, the LA Times, and Reuters. In what proponents of a liberal media bias must see as a surprise, the New York Times piece casts the Wolfowitz nomination in a very positive light... of course it does so by making him seem more liberal.

Wednesday, March 16, 2005

Nazi Propaganda for the "war on terror"

Somebody on NPR misattributed a quote to Joseph Goebbels the other day, or I might have heard wrong, but in any event, I originally couldn't find the quote. It was actually from Hermann Goering, and I think it's frighteningly relevant in Mr. Bush's "war on terror":
the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country.
The origins of the quote are interesting, Goering said it during an exchange on war, in response to the claim that in a democracy, the people could voice their wish not to go to war.

Hitler's propaganda man, Goebbels, is not exempt from producing internal memoranda for the White House press office, though, having crafted beauties such as "during a war, news should be given out for instruction rather than information." And who could forget such classics as:
If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.
Good stuff, huh?It is attributed to Lincoln that you can't fool all the people all the time, and that may well be the case, but apparently there's no harm in trying, and apparently you can fool most of the people most of the time as long as you stay on message...

Today's Sign That the Apocalypse is Upon Us...

On a quick aside, I'd like to add to my thoughts on the nomination of John Bolton to the post of U.N. Ambassador. Please take a second to visit, watch the clip, and tell your Senator not to confirm this scary man to such an important post. If your Senator is not listed, you can find his/her contact info here. Seriously, watch the video, Bolton throws a Kruschev-style hissy fit that would be hilarious, if it wasn't so scary...

Now, this news: In what has become a routine, almost weekly, affront to all that is good in the world, President Bush announced his intention to nominate Paul Wolfowitz to head the World Bank Group. When asked about his choice of "a chief architect of one of the most unpopular wars in our history" during today's Presidential press conference, a cartoonish Mr. Bush tried to be funny, said Wolfowitz is a good guy, and moved on.

The President was extremely convincing as he explained Mr. Wolfowitz's qualifications. "He helped manage a large organization. The World Bank is a large organization; the Pentagon is a large organization -- he's been involved in the management of that organization." Let that be a lesson to you job hunters out there, play up irrelevant similarities between completely unrelated fields in order to increase your options.

I guess now we sit back and watch for increases in World Bank aid to Iraq, assuming of course that Europe lets the nomination go forward unchallenged. It is frightening, though, that this is only the last in a series of nominations that nobody outside of the White House can seem to understand. The President is installing sycophants into every position in which our government interacts with the outside world: State Department, U.N., World Bank, etc. I find it frightening that Mr. Bush has entered deep enough into a vicious cycle of isolationism that the loud and repeated criticisms over the most recent nominations go completely unheard. Wouldn't it be normal to expect a few "compromise nominees" after a particularly bitterly opposed one? Each of these individuals is meeting more opposition in the Senate than the previous one, and it is telling that Mr. Bush is relentlessly pressing on, without so much as paying lip service to mounting opposition. Simply put, the actions of this President suggest strongly that he has simply stopped listening to the world, and it's too bad, because it's only a matter of time before the world stops listening to us. I wonder who they will listen to instead...

I.C.C. Update

Yesterday, Kenya became the 98th State to ratify the Rome Statute for the International Criminal Court. The CICC reported that Kenya's legislature approved ratification last month and is currently in the advanced stages of adopting implementation legislation.

The U.S. government, on the other hand, continues to undermine the process of establishing a strong, independent court, despite polls showing American support for the ICC among Americans who know about the court. Makes sense, really, it's hard to believe that we're against prosecuting the authors of genocide, crimes against humanity and war crimes when their home countries are unwilling or unable to do so. The government's position goes beyond opposition to the court, as we're not simply dragging our feet here, we're trying to pull back on the feet of those who are trying to passy by. Congratulations Kenya, hopefully we can join you in an election cycle or two...

Monday, March 14, 2005

California Gay Marriage Ban Unconstitutional

Well, at least for now. Superior Court Judge Richard Kramer held today in San Francisco that "it's always been this way" is not sufficient legal grounds for statewide discrimination. The 27 page tentative decision comes as a result of six coordinated cases, and it strikes down two sections of the California Family Code that define marriage as between a man and a woman and invalidate marriages not between men and women, respectively.

What is happening in America today is remarkable, because public opinion is being dragged kicking and screaming to the left, it's being forced to its senses. The civil rights movement gained tremendous support when footage emerged of the hostility Southern black children faced just trying to get to school; people saw Norman Rockwell's rendition of Ruby Bridges and they recognized that there was something inherently wrong with agreeing with the angry people she was being protected from. Schools were allowed to become integrated, and over time, miscegenation laws were struck down. The marriage equality movement got a similar boost from those seeking marriages in San Francisco last year. The first to marry were Del Martin and Phyllis Lyon, a lesbian couple who'd been together for 50 years. It's hard for people who like to think of themselves as moderates to argue against those two women's right to marry while Brittney Spears is legally entitled to do it as often for as little time as she likes.

The way to win the debate on same-sex marriage is to draw the obvious parallels to interracial marriage. People are more likely to question their views if they realize that they are exactly the same views held by 19th century whites on miscegenation. I should include something from a piece I read on post-Reconstruction arguments for miscegenation laws:

Here are four of the arguments they used:

1) First, judges claimed that marriage belonged under the control of the states rather than the federal government.

2) Second, they began to define and label all interracial relationships (even longstanding, deeply committed ones) as illicit sex rather than marriage.

3) Third, they insisted that interracial marriage was contrary to God's will, and

4) Fourth, they declared, over and over again, that interracial marriage was somehow "unnatural."

On this fourth point--the supposed "unnaturality" of interracial marriage--judges formed a virtual chorus. Here, for example, is the declaration that the Supreme Court of Virginia used to invalidate a marriage between a black man and a white woman in 1878:

The purity of public morals," the court declared, "the moral and physical development of both races .... require that they should be kept distinct and separate .... that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.

Re-read those four reasons, they are exactly the same reasons being given today by opponents of same-sex marriage. Let them know that their arguments are recycled from pre-civil rights era segregationists, it should make them uneasy about their views, and if it doesn't, then why are you hanging out with these people? As public sentiment shifts, more and more people say that they wouldn't mind civil unions, and that's when you slam them with the question: if homosexuals can have a separate institution with all the legal rights and benefits of marriage... why not just let them marry? The church is not involved here, the debate is on the legal ceremony by which we give people the right to inherit property, to receive benefits, to have access to their loved ones during visiting hours. Separate is inherently unequal, and that's why we don't have signs over water fountains anymore.

Judge Kramer said that it is an "obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married." Which goes along nicely with my long-standing offer to stop supporting gay marriage as long as we start requiring fertility tests.

The case is expected to be appealed, perhaps directly to California's Supreme Court, but it will not make it to D.C. because of some silly Constitutional limits on the jurisdiction of the U.S. Supreme Court... something about states interpreting their own laws...

New Link Added

Just wanted to announce that I've added a link to the International Justice Tribune, a neat little resource for international criminal justice news. I have been quite busy with a LWOB project, so forgive me for not writing recently, though I am working on some analysis of recent developments in Ireland, which I hope to have ready for St. Patrick's day.

Saturday, March 12, 2005

U.S. vs. Treaty Law, Part II

In this section we review the optional protocol to the VCCR granting the ICJ jurisdiction over disputes arising under that treaty. The Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes provides that by signing on, parties are:

"Expressing their wish to resort in all matters concerning them in respect of any dispute arising out of the interpretation or application of the Convention to the compulsory jurisdiction of the International Court of Justice, unless some other form of settlement has been agreed upon by the parties within a reasonable period."
Until recently, we were one of those parties, but our government's attitude towards the VCCR suggests that our "un-signing" is merely a reflection of our de facto disdain for the protocol. It's like a couple who have been separated for years finally deciding to seek an official divorce, but that's really more of a matter for Part III, isn't it?

What the optional protocol in question does is not uncommon, either in the abstract or as specifically pertaining to the ICJ. It's basically a forum selection clause, like the one you agree to when you fill out the registration card for your toaster (it's in the tiny print that you didn't read). The trick, though, is that when it comes to individuals or businesses, there is generally a way to get taken into court somewhere even if you didn't consent to the forum. The same is not true of countries, who by virtue of their sovereignty, can pretty much decide when to consent to a court's jurisdiction. The Statute of the ICJ is a perfect example of how this works.

A quick reading of Article 36 shows that basically, the ICJ has jurisdiction only with the prior consent of the litigant State. This consent can be secured in three ways, which are brilliantly explained by the ICJ itself:

States may manifest their consent in three different ways:
A special agreement: two or more States in a dispute on a specific issue can agree to submit it jointly to the Court and to conclude a special agreement to that end;
A clause in a treaty:
some 300 treaties contain clauses (known as jurisdictional clauses) by which a State party undertakes in advance to accept the jurisdiction of the Court should a dispute on the interpretation or application of the treaty arise in the future with another State party;
A unilateral declaration:
the States parties to the Statute of the Court may opt to make a unilateral declaration recognizing the jurisdiction of the Court as compulsory, in relation to any other State accepting the same obligation (Article 36, para. 2, of the Statute). This so-called "optional clause" system has led to the creation of a group of States who mutually have conferred jurisdiction on the Court to decide disputes between them that may arise in future. Each State belonging to this group has in principle the right to bring any one or more other States belonging to the group before the Court. The declarations may be limited in time and may contain reservations or exclude certain categories of disputes. They are deposited with the Secretary-General of the United Nations. The declarations of 65 States are currently in force.
It should be becoming apparent that the ICJ has quite extensive jurisdictional reach, despite the fact that technically speaking it is tremendously limited. It would also seem perfectly legal for a State that voluntarily submitted to ICJ jurisdiction under this framework to withdraw from such jurisdiction... but things are not always as they seem!

Without getting too far into the realm of the much anticipated Part III, it is problematic for a State to withdraw from ICJ jurisdiction for various reasons, some political and some legal. There is always the matter of the Vienna Convention on the Law of Treaties and its pesky Articles 18 (States can't take action that would defeat the purpose of a treaty they've signed) and 54 (how to withdraw from a treaty). Although the U.S. has never ratified the VCLT, it is generally accepted as customary international law, and even if it weren't, the U.S. has signed it, so Article 18 sort of limits our ability to ignore it. More on that in a second... The VCLT entered into force in 1980, so there has been plenty of time to hammer out its effect on pre-existing treaties, besides, Article 64 voids pre-existing texts that contradict a new peremptory norm (such as itself). I believe there is ample support for the notion that withdrawal from a treaty or protocol cannot legally proceed without addressing the VCLT, even for a non-ratifying State.

Another related issue was raised at the time that we rescinded our signature from the Rome Statute, and that is the claim that the U.S. is not bound by the Vienna Convention on the Law of Treaties. At the time, as now, the Administration relies on Article 18's wording, that a State not act in violation of the treaty "until it shall have made its intention clear not to become a party to the treaty." They interpret this as meaning that the drafters at Vienna contemplated precisely the course of action that the Administration is taking. My reading of the traveaux preparatoires is different, that arguably the withdrawal from the Rome Statute, as it was entering into force, was comtemplated, but not the withdrawal from a 40 year old treaty with which the State has dealt extensively.

It is also worth noting that a sort of estoppel argument could be made in light of the fact that the U.S. has, in prior litigation at the ICJ, used the VCCR in its arguments. In Consular Staff in Tehran, for instance, the ICJ noted that the U.S. was correct in its claim that jurisdiction was proper because of the very optional protocol now in question! It seems suspect, at best, for a State to rely on the provision of a treaty and then later argue that the treaty is invalid.

So now that we're all up to speed on the international law regarding what the U.S. has done, we can move on to Part III, where I explain why we did it, and why we were wrong to do it... stay tuned!


Friday, March 11, 2005

One Year Later

Sorry to interrupt the "U.S. v. Treaty Law" series, but it seemed appropriate to commemorate the events of last March 11 in Madrid. At 7:37, the more than 650 church bells in Madrid began ringing in unison 10 times over 5 minutes, cars stopped spontaneously and their drivers emerged to join the moment of silence for the 191 who died one year ago today.

Please take a moment to direct your thoughts to all who grieve today, one year later.

Thursday, March 10, 2005

U.S. vs. Treaty Law, Part I

NPR reported this afternoon that Secretary of State Rice has announced U.S. intentions to withdraw from an Optional Protocol to the Vienna Convention on Consular Relations granting the ICJ jurisdiction over disputes arising under the treaty. This is just the sort of thing that IHOD was created for, and so I will tackle this matter in a three-part post of epic proportions. This first part will deal with the U.S. and the right to consular assistance. Part II will deal with the Optional Protocol in question, and Part III will go over the U.S. decision to withdraw. Enjoy.

In recent years, the International Court of Justice has repeatedly found the U.S. to be in breach of the VCCR because of our imprisonment and execution of foreign nationals, without first advising them of their right to speak to a consular official from their country. Of course individuals have no standing at the ICJ, and so the claims are brought by foreign governments over the failure to notify their representatives in the U.S. of the arrest of their nationals. The idea is quite simple, Americans know from TV and film that if arrested abroad they can announce that they are American citizens, and demand to speak to the embassy. But this is not because Americans are special; it is because of the VCCR. Mexicans, Gabonese, Kazakhstanis and yes, even the French have the same right to demand consular assistance based on their nationality if arrested abroad in another member State… but most police officers, prosecutors, judges, defense attorneys and arrestees don’t know that, so the defendant’s rights under the treaty go ignored.

It’s hard enough to raise treaty obligations in court in this country. Most judges think you’re making stuff up, even though it says right there in Article VI of the U.S. Constitution that treaties are to be applied by judges as “the supreme law of the land.” It’s even harder to raise the VCCR because our right to counsel is often presumed to address any problem that could arise from not talking to one’s embassy. The public defender, though, usually cannot address cultural perceptions and issues that can prove crucial to the outcome of a case. Rachel Lewis, fellow MU Law graduate and one of my favorite writers, tells the story of Angel Breard in her unpublished 2004 paper, A Fundamental Miscarriage of Justice: U.S. Interpretation of Consular Rights in Article 36 of the Vienna Convention on Consular Relations:

Angel Breard was a dual citizen of Paraguay and Argentina who came to the United States in 1986 to attend school. He was convicted of capital murder in Virginia after a trial in 1993. At the time of his arrest in 1992, police found his Paraguayan passport in his apartment, but despite such clear evidence that he was not a U.S. citizen, he was never informed of his consular rights. He confessed to the crime, and contrary to the advice of his appointed attorney, he refused a plea bargain for manslaughter. He insisted on testifying at his trial against the advice of his attorney, and informing the jury that his father-in-law had put a Satanic curse on him, compelling him to commit the murder. He thought the jury would be sympathetic and forgive him, as Jesus had. Had Breard been able to avail himself of the right to consul, he probably would not have committed such fatal errors of judgment in the courtroom. Breard's ignorance of the American legal system resulted in a death sentence, without his country having ever been informed of his arrest, trial or conviction. (p. 4-5). (footnotes omitted).
Americans were outraged in 1994 when Michael Fay was caned in Singapore for vandalizing cars, so it should be easy to understand why Paraguay sued Virginia. They lost because Breard hadn’t raised his claim at trial. They then took their case to The Hague, and the ICJ ordered the U.S. to take “all measures at its disposal” to stay the execution pending their decision. The U.S. Supreme Court basically said “how cute…” and denied a stay, in part because the issue had not been raised at trial. Breard was executed, and Paraguay withdrew its claim at the ICJ.

While Rachel was writing her paper, we discussed the similarities between the provisions of VCCR Article 36 and Miranda warnings. In her paper she wrote:

Miranda was decided in 1966, after the U.S. had signed the VCCR, but prior to ratification. The rationale the Court used to justify warning detainees of their constitutional rights is analogous to the reasons Article 36 was created for detained foreign nationals. Justice Warren stated, "[t]he accused who does not know his rights and therefore does not make a request may be the person who most needs counsel." It is ironic to note that Miranda was a poor immigrant from Mexico, exactly the type of person Article 36 was designed to protect. (p. 19). (footnotes omitted).
Most criminal lawyers don’t know international law, and consular intervention, the very thing here denied, was probably the only way Breard could’ve raised the issue at trial. In other words, if I sell you a defective car by not telling you about the defect, and you bring it back later after finding the defect, I can say “yeah, it’s defective… I wish I could help you out, but you should’ve said something at the time of the sale.” If that doesn’t sound very fair, it’s probably because it isn’t.

Rachel’s paper also discusses the Murphy Advisory Opinion (Mex. v. U.S.), which was litigated at the Inter-American Court of Human Rights. I’ll close Part I with another excerpt from her paper:

Consular assistance, as the Inter-American Court noted, is a procedural safeguard. It serves to protect the interests of the detainee, who is presumably unfamiliar with his rights in the host country, and therefore presumptively prejudiced if not afforded the chance to contact his consul. Notification of the right to consular assistance should, as the Inter-American Court concluded, be examined in the context of due process considerations, which, the Court noted, "arise from the inherent dignity of the individual." Taking note of the significant steps U.S. Courts have made in the past to ensure due process rights, there is no justification for not complying with the treaty obligations we undertook 35 years ago. (p. 17). (footnotes omitted)


Wednesday, March 09, 2005

Genocide T-Shirts: How Long is 'Never Again'?

It has been brought to my attention that funds for Darfur victims are being raised by a group of law students through Please take $20 and a minute to buy one of these t-shirts, and please be sure to wear it on Wednesdays. I know wearing a shirt on a given day might seem like nothing, but you never know when you could be walking in front of someone important who might be moved to action by your digs. Special thanks to Rachel for bringing this to my attention, here is the information she forwarded to me:


As part of the international campaign to end the atrocities in Darfur, Sudan, students from American University Washington College of Law launched a t-shirt campaign that asks the question “How Long Is 'Never Again?'” For months we have waited for the UN Security Council to take action in Darfur. But as is always the case with politics, whether it be international or local, change does not come until the people’s voices are heard!

Let your voice be heard. Join activists from across the world who have purchased the “Genocide: How Long is Never Again?” T-shirt and have pledged to wear it in solidarity with the victims of genocide EVERY WEDNESDAY until the atrocities in Darfur are brought to a halt and those responsible are brought to justice.

T-shirts and other apparel in various styles and prices are available at

All proceeds will be donated to humanitarian relief organizations working on the ground in Darfur and Chad. For additional information, please email Amelia Parker at

These shirts come in a variety of styles and the design looks good while making a powerful statement. Please buy one and wear it on Wednesdays so we can keep this tragedy in the public consciousness, now that press is dying down on Hotel Rwanda. It is possible to bring about results by keeping dialogue alive, and if you can't take the time to write letters to Congress, perhaps by wearing the shirt you will motivate someone who can. I'd like to start seeing these things on strangers on the street, and I want people to come up and say they saw someone else wearing one, and asking what the deal is. When they do that, tell them what the deal is, and tell them to buy a shirt.

Tuesday, March 08, 2005

Idiot Given Dream Job, Dan Outraged

Let me begin by saying that this is only my "opinion" on "public figures" and "fair comment on matters of public interest," (... no libel here!), but to say that I am outraged at John Bolton's nomination would severely understate my feelings on the matter. What's next, David Duke as ambassador to Israel?!? Actually, I shouldn't ask that, I shouldn't even joke about it seeing as this is the third time I've thought "could there be a worse choice?" Negroponte, Ashcroft, now Bolton... good God.

First of all, Bolton looks like Argentine rocker Charlie Garcia, which is weird enough to begin with. Second, you simply cannot have a U.N. envoy who has been specifically kicked out of negotiations with North Korea, a country that will probably come up once or twice during his tenure. Third, HE IS EVIL!! Fourth, he thinks Cuba has WMD. Fifth, Jesse Helms likes him to the point of saying "John Bolton is the kind of man with whom I would want to stand at Armageddon." That's like an endorsement from Hitler. By the way, that last link is from one of those "the media has a liberal bias!" sites... (There should be an apostrophe after "Citizens") Sixth, he has consistently advocated against the United Nations. Seventh, he thinks we should recognize Taiwan because China would never respond with military action (scary right-wing link), though it's unclear if he's that stupid or just doing what he got paid to do by Taiwan. Eighth, nobody likes him. Ninth, I am seriously worried that he'll try to withdraw from the U.N. Charter as he did from the Rome Statute. Tenth, I agree with the commentator on NPR yesterday, I just don't think he believes anything in the U.N. Charter, which is a lot like electing a Senator who doesn't believe in the U.S. Constitution... sure, you could do it, but it'd be extremely scary and dumb.

Finally, John Bolton once said that if the U.N. building in New York lost 10 stories "it wouldn't make a bit of difference." Now, I don't know if that was a statement on diplomatic bureaucracy, his view on "little countries," or incitement to terrorism, but either way, it does not look good for our representative to have said it. I guess Mr. Bush doesn't mind people making light of the destruction of tall buildings in the Manhattan skyline, it just depends on the building. But what do I know... I thought Adlai Stevenson during the Cuban Missile Crisis was a good example of what the U.N. Ambassador was supposed to do...

Monday, March 07, 2005

Long Time No See...

So it's been a while... I have been sans internet for a few days, but I am now back at the keyboard, and happy to report some exciting events in the world of sports. First of all, to all my friends who had the misfortune of pledging your alliegance to kU, I say only "HA!". In what can only be described as a dull game (since I'd predicted the outcome months ago), the lowly little unranked tiggers from Mizzou put the hurt on the overrated chickenhawks of Kansas yesterday. That's right, TIGERS 72 - JAYHAWKS 68!!!

In other exciting news from the world of sports yesterday, Argentine soccer went well as River Plate beat Instituto 3-1, remaining undefeated and tied for first in the Clausura, while Boca Juniors lost to Racing 1-0, remaining nowhere near us. I have decided not to talk baseball until April 3rd, when the Yankees will put the visiting BoSox in their rightful place, and then until mid-June, so that the Royals will have had time to win a game.

I plan on writing about GW's latest affront to international relations once I find the words to articulate my displeasure, which will be later tonight, provided my laptop cooperates. For now I'll just say that I think Michael Bolton would have been a better choice...

Wednesday, March 02, 2005

Syria Learns the Art of Spin

I heard an NPR interview with Imad Mustapha, Syria's ambassador to the United States. He spoke about the Syrian withdrawal from Lebanon, which has been the subject of intense news coverage since the assassination of Rafik al-Hariri on February 14th. The 1989 Taef Agreement provides for the withdrawal of Syrian troops, stating in part that:

the Syrian Government and the Lebanese National Accord Government -- shall decide to redeploy the Syrian forces in Al-Biq'a area from Dahr al-Baydar to the Hammana-al-Mudayrij-'Ayn Darah line, and if necessary, at other points to be determined by a joint Lebanese-Syrian military committee. An agreement shall also be concluded by the two governments to determine the strength and duration of the presence of Syrian forces in the above-mentioned area and to define these forces' relationship with the Lebanese state authorities where the forces exist.

The agreement is reinforced by U.N. Security Council Resolution 1559, adopted last September. Syria has accused the U.S. of hypocrisy, charging that Israel continues to occupy various areas in violation of U.N. resolutions. It is interesting to note that Resolution 1559 never specifically mentions Syria, only "foreign troops."

Here's where the interview got good. According to Mr. Mustapha, and I wish I had the transcript here, Syrian troops plan to leave, they are only there for the security of Syria and the Lebanese people, but they will not leave hastily, and their withdrawal will depend not on political pressures, but on the preparedness of Lebanese forces to take over security. Sound familiar? I thought so too...

The Syrian government has launched a brilliant P.R. campaign in recent days, with similar statements coming from ambassadors in London and Saudi Arabia. Not to be outdone, Mr. Bush briefly channeled the ghost of Ronald Reagan today, but his stern words to Syria, "you get your troops and your secret services out of Lebanon so that good democracy has a chance to flourish" sounded a little silly, and not so much like Reagan's "Mr. Gorbachev, take down this wall." Come to think of it, he reminded me a bit of George McFly's sheepish "hey you... get your damn hands off her!" in Back to the Future.

Tuesday, March 01, 2005

U.S. Supreme Court Bans Execution of Minors

In an uplifting 5-4 decision earlier today, the U.S. Supreme Court held that the execution of persons for crimes they committed at the ages of 16 and 17 violates the 8th Amendment's ban on cruel and unusual punishment. The U.S. had executed 19 of the 39 minors executed since 1990, the remaining 20 having been in China, Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen. Amnesty International points out that these seven countries have all since repudiated or abandoned the practice, in accordance with their obligations under Article 37(a) of the Convention on the Rights of the Child, which, unlike only the U.S. and Somalia, they have all ratified.

I am especially pleased that it was the Simmons case that decided the matter, because the murder involved was particularly cruel. In 1993, 17 year old Christopher Simmons broke into the home of Shirley Crook. He and two other minors committed property crimes on behalf of a neighbor who was a convicted felon. They would return the proceeds of the crime to this adult, who insisted that they could not get in trouble with the law because of their age. Through some strange twist of fate, Crook and Simmons recognized one another from an earlier car accident. Simmons, with the others, took Crook from her home and drove her to a tall bridge, where she was hog-tied, her head was covered with duct tape, and she was pushed to her death in the river below. A few days earlier, Simmons had bragged to a friend that he could get away with murder because of his age.

The reason I am relieved that it was this fact pattern that brought about the ruling, is that these facts constitute the extreme hypothetical example that proponents of juvenile execution would have relied on as the basis for their position. When confronted with the facts against juvenile execution, proponents are likely to conjure up a hypothetical cold-blooded killer who is aware of the wrongness of his acts, and in fact relies on his age to deliberately avoid punishment. Then they would ask something like "shouldn't THAT guy be treated like an adult?" The Supreme Court seems to think "not so much, no."

The state sanctioned killing of juveniles is wrong. Medical evidence presented at trial supports the position that our judgment is not sufficiently developed at 17 to produce the sort of deliberate intent needed for full criminal responsibility. There certainly seems to be a recognition of this vis-a-vis our withholding full legal rights from those who are under 18. I don't want to get into voting, the draft, cigarettes, pornography or marriage, but if we say a juvenile is adult enough to form the requisite intent to merit the death penalty, then it's worth keeping in mind all the things we feel 16 and 17 year olds are not yet mature enough to do. Simply put, children are not adults merely because we charge them as adults. Public uproar over a particularly heinous crime shifts society into revenge mode, making it easier to forget that rehabilitating criminals into society should always be a goal of corrections. It says a lot that we would be willing to execute an adolescent, since by virtue of his youth he would pose the strongest chance of eventual rehabilitation.

In closing, I am pleased to see us finally fall in line with the rest of the world, I like it better when we share policies with the EU than when we share them with Nigeria, the DRC, Iran, Pakistan, Saudi Arabia, Yemen, and China. I think President Jimmy Carter put it best: "With this ruling, the United States acknowledges the national trend against juvenile capital punishment and joins the community of nations, which uniformly renounces this practice."

Now we get to sit back and watch reactionary Republican pundits and politicians lash out against the Court, citing the will of the people and the evils of "activist judges".