Sunday, March 29, 2009

Spanish Magistrate Launches Investigation Into Top U.S. Officials

The most famous Spanish investigative magistrate, Baltasar Garzon, launched an investigation into whether top Bush aides and lawyers should be charged (and prosecuted!) with war crimes over allegation of mistreatment of the Guantanamo detainees (click here to read the story: Judge Garzon had already investigated Augusto Pinochet in the late 1990's, as well as other human rights abuses in former military regimes in Chile and Argentina; now he has turned his attention to the United States. In fact, judge Garzon just turned the criminal complaint against six U.S. officials - all of them high-level lawyers and executives within the Justice and Defense Departments under the Bush Administration - to prosecutors, who will decide within five days whether these individuals should be charged with war crimes and subjected to prosecution in Spain. The six officials include Alberto Gonzales, John C. Yoo, Douglas J. Feith, William J. Hayes II, Jay S. Bybee and David S. Addington.
This type of criminal prosecution is rare, but not altogether unprecedented in international law. The six individuals named above would be charged with war crimes - a well-defined crime under international, and most domestic laws. Many individuals have already been prosecuted for war crimes in other international tribunals, such as the ICTR, the ICTY, the Special Court for Sierra Leone, and most recently, the Cambodian Court (ECCC). Many individuals have already been prosecuted in domestic courts for war crimes, in the wake of either world wars or regime changes and transitions to democracy. Moreover, jurisdiction over defendants accused of war crimes can be, theoretically, easily justified in international law. So-called universal jurisdiction exists over war crimes, implying that any state can prosecute individuals accused of war crimes, even if the prosecuting state has no connection or nexus to the crime itself, to the victims or to the defendant. Furthermore, the so-called passive personality principle of jurisdiction would justify the Spanish exercise of jurisdiction over the above-named U.S. defendants, because this type of jurisdiction grants the state whose nationals the victims of the alleged crimes were the power to try defendants. In this case, some of the Guantanamo detainees were Spanish nationals; thus, under the passive personality principle, Spain would have the power to try the U.S. individuals accused of planning and installing the questionable regime applied at Guantanamo to the detainees.
As a policy and diplomacy matter, whether Spain should prosecute these individuals is a different issue. Some of the six individuals have already testified before the U.S. Congress over their alleged involvement in the mistreatment of Guantanamo detainees, and the issue of whether these individuals should be held accountable domestically (in the U.S.) is already being debated. Arguably, if some accountability mechanism is installed in the U.S., then Spain would have no business meddling into these allegations, at least from a policy and diplomacy perspective (as explained above, from a legal point of view, Spain does have the right and power to investigate and prosecute these individuals). If the U.S. decides not to hold any of these individuals accountable in any manner, then arguably Spain has more interests and incentives to investigate them. Whether its government will decide to pursue the investigation is doubtful - the German main prosecutor declined to investigate Donald Rumsfeld in 2004 over allegations of mistreatment of prisoners in the Abu Graib prison in Iraq, citing policy concerns. After all, the U.S. is an important potential ally and no country wants to alienate the American government.
I strongly believe that some kind of accountability is needed for the mistreatments that took place at Guantanamo, and I believe that some of the above-named individuals should be personally subjected to investigation and required to take responsibility. Preferably, this should take place within the U.S.; if it does not, then the only "punishment" these individuals will face is the fact that they will never again be able to vacation in Spain (or other European countries if they decide to agree with the Spanish decision to investigate), where they could potentially be arrested and prosecuted for war crimes. However inconvenient this may be for Bybee, Yoo, or others, I do not believe that it constitutes enough punishment for the serious mistreatments that took place at Guantanamo.

Monday, March 23, 2009

Kashmir Secessionism Produces More Violence

A total of 19 people have been killed in the recent weeks in Kashmir, where a bloody secessionist struggle has been taking place for the last two decades, and where violence just re-erupted between the Indian forces administering this region, and the secessionist militias (click here to read the article: Kashmir, once a beautiful mountainous area tucked between India and Pakistan and known for its natural beauty, has become an epitome of violent secession ism sparked by intense rivalry between two potent nations (India and Pakistan). Both India and Pakistan assert territorial claims to Kashmir, and India currently administers a large portion of Kashmir. The Kashmirs people view themselves as independent and distinct from both India and Pakistan.
Historically, the Kashmirs lived peacefully and quietly, as eloquently described by Salman Rushdie in his recent novel, "Shalimar the Clown." However, in the recent decades, Kashmir fell prey to Pakistani and other Muslim extremist militias, which sought to restore strict Islamic law in this region, and to gain strategic and military advantages from installing troops and training camps in such a remote region, from which they could easily launch attacks and hide from possible retaliation and capture. This in turn provoked a violent reaction from the Indian government, which sent troops into Kashmir in order to reassert its own reign over this region. The Kashmirs thus found themselves in the midst of a power struggle between Pakistan and India, unable to fend for themselves and to isolate themselves from military, political and social influences exerted on them by these two countries. The Kashmirs would probably like to secede from both India and Pakistan; yet, they are stuck in no-man's land, as a tug-of-war continues for control over Kashmir by its powerful neighbors.
Kashmir has become another unfortunate example of an underdeveloped yet peaceful region that has turned into fertile ground for a power struggle between world powers. The victims are the Kashmirs people themselves, but unfortunately for them, violence may continue to plague them for a long time, or at least until India and Pakistan are able to come to a political and military truce.

Tuesday, March 10, 2009

Africa and Human Rights: A Long Way to Go?

A few days ago, Zimbabwe's Prime Minister, Morgan Tsvangirai, and his wife, Susan, were involved in a brutal car accident. Tsvangirai walked away with relatively minor injuries, but his wife was mortally injured and died quickly after the accident (click here to read the story: For those who haven't followed African politics lately, the news of the crash may seem purely incidental and insignificant in the grand scheme of things. After all, a car accident can happen to anyone, right? Not entirely true in the context of Zimbabwe, and Africa more broadly speaking.
Morgan Tsvangirai has been a long-time political opponent and foe of the country's dictator, Robert Mugabe, who has been in power for decades, and who has a history of crushing any political opposition and making enemies disappear. In 2001, Defense Minister Moven Mahachi died; Employment Minister Border Gezi's died in 1999, and just last year, Elliot Manyika, a government minister and former regional governor, also died. All three died in car crashes. Recently, Mugabe was pressured into a power-sharing agreement with Tsvangirai, whereby Tsvangirai was elected Prime Minister. And then, Tsvangirai and his wife were victims of an eyebrow-raising car crash as well. Tom McDonald, the former U.S. ambassador to Zimbabwe, is suspicious of the circumstances leading up to Tsvangirai's car accident and says that the incident "gives him pause." Other experts on this volatile African region also cite concerns, suspicions about Mugabe's possible involvement, and fear that this incident will cause further instability in Zimbabwe and will fragilize the already fragile power-sharing agreement between Mugabe and Tsvangirai.
Moreover, observers and experts are sceptical about Mugabe's (and other regional countries' leaders) willingness to respect human rights in general. Mugabe has been known to brutally crush any opposition, and the truce with Tsvangirai was negotiated only after bloody demonstrations in which hundreds of people were killed. Tsvangirai himself has been imprisoned, arrested and beaten during the last few years. Mugabe may have officially agreed to share power with Tsvangirai, but may in fact only be waiting for another opportunity to make Tsvangirai disappear, either by orchestrating his murder or by accusing him of unfounded crimes and by imprisoning him for a long time. Any other human rights activists operating in Zimbabwe risk a similar fate. Zimbabwe is not alone, however: throughout Africa, many other countries refuse to respect human rights. In Kenya, two high-profile human rights activists were recently killed, raising suspicious about a possible police (and government) involvement (click here to read the story: And many other African countries regularly engage in human rights violations: Sudan, Ivory Coast, Algeria, and Somalia are just a few examples. Africa as a continent (with some notable exceptions) has a long way to go with respect to affording appropriate human right protections to groups and individuals. And opposition politicians like Tsvangirai deserve global praise for their willingness to sacrifice everything, including the safety of their loved ones, for the chance to dethrone oppressive leaders.

Thursday, March 5, 2009

Comment on the ICC Arrest Warrant (by Manisha Desai)

As this blog suggests, the ICC’s arrest warrant for the President of Sudan’s Omar Hassan al-Bashir begs the question: what is the purpose of the ICC? The ICC states that it “is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” ( There are two prongs to “ending impunity.” The first is to create a deterrent effect and stop (or prevent) serious crimes. The second is to bring the perpetrators of serious crimes to justice and provide justice to the victims. As this blog notes, in the immediate term, the arrest warrant will have no effect in stopping the crimes being committed in Darfur by the al-Bashir government. To the contrary, as this blog and several news agencies have reported, not only have aid agencies been asked to leave almost immediately after the warrant was announced, but violence in Darfur is expected to increase. (Click here to read New York Times article: Similarly, while Sudan is required to cooperate with the ICC and arrest al-Bashir, it is widely accepted that Sudan will not do anything of the sort. Indeed, the ICC already issued warrants for a Sudanese government minister and a former militia leader in 2007. Neither has been turned over to the ICC. It is fairly evident that the ICC’s arrest warrant will have no deterrent effect in the short-term. But deterrence in the short term is a political question, one that any justice system, particularly the international justice system, is ill-equipped to handle. We must continue to hope that the international community will use all international political means possible to end the conflict.

If the ICC cannot provide short-term deterrence what was the purpose of issuing the arrest warrant? To fulfill the second prong of “ending impunity”: bringing al-Bashir to justice and providing justice to the victims in Darfur . While the arrest of al-Bashir is hard to envision today, there is a possibility that the government in Sudan will change or that in the future the international community will actively try to enforce the arrest warrant. Recent history suggests that perpetrators of serious crimes are being apprehended. One only need look at the arrest last year by Serbia of Radovan Karadzic, the former Bosnian Serb leader. Karadzic was at large for 13 years; living quietly in Belgrade . The catalyst for Serbia ’s action? Coveted membership in the European Union. (Click here for article on Karadzic’s arrest: Today China , Russia and some African countries are supporters of al-Bashir, but where will they be in 13 years? The ICC arrest warrant may not have any impact on the daily lives of the victims of Darfur, but it does give a glimmer of hope that when the fighting stops, the perpetrators are more likely than not to be brought to justice.

If justice is the principle goal, and it is well-known that justice will not be achieved immediately, why did the ICC risk increasing hostilities by issuing the arrest warrant now? Indeed, the Tanzanian president suggested during an interview on CNN that the ICC arrest warrant is a distraction from what should be the international community’s first priority of allowing UNAMID, the UN peacekeeping force in Darfur , to create peaceful conditions in Darfur . Justice, according to the Tanzanian President, can only come after peace has been achieved. Why, then, did the ICC risk further injuries and death when it knows that the arrest warrant will have no short-term impact? The Darfur investigation was referred to the ICC in March 2005 by the UN Security Council. (Click here for UNSC 1593 The al-Bashir arrest warrant was issued in March 2009 -- 4 years later. During these 4 years, according to Moreno-Ocampo, “[g]enocide continues. Rapes in and around the (refugee) camps continue. Humanitarian assistance is still hindered.” ( Four years have not been sufficient for the al-Bashir government to stop the violence or for the international political community to secure peace through UNAMID. Waiting any longer to start the judicial process does not make sense in this situation. Further, as Human Rights Watch has stated: “Yielding to intimidation [by the al-Bashir government of further violence] would set a dangerous precedent and would make the international community susceptible to blackmail.” (

By Manisha Desai,
Manisha Desai is an Adjunct Professor, Temple University, Japan Campus, where she teaches international business law. Prior to joining Temple University, Japan, Ms. Desai was an associate at Cleary, Gottlieb, Steen and Hamilton, where she practiced complex civil litigation and international arbitration and Waller Lansden Dortch and Davis, LLP, where she continued to practice complex civil litigation, with a focus on white collar crime. Ms. Desai also clerked for the Honorable John T. Nixon, Senior District Court Judge for the Middle District of Tennessee.

Wednesday, March 4, 2009

ICC Issues Arrest Warrant for Sudanese President al-Bachir

The International Criminal Court (ICC) issued an arrest warrant for the Sudanese president, Omar al-Bashir, on charges of war crimes and crimes against humanity in the Darfur region. The ICC stopped short of accusing al-Bashir of genocide, a crime which is much more difficult to prove as it requires the showing of a specific intent to commit genocidal acts. While the issuance of the arrest warrant signals progress in the field of international criminal law and will undoubtedly be applauded by most human rights NGOs, it nonetheless poses serious doubt about its political appropriateness.
Why shouldn't the ICC prosecute al-Bashir? Most people and most western countries and leaders agree that the Sudanese government, led by al-Bashir, has supported the janjaweed Arab militias, which have harassed and abused the African population in the south of Sudan for several years. Al-Bashir has certainly done nothing to stop the militias, and even his cooperation with humanitarian groups involved in rescuing refugees and setting up refugee camps has been lukewarm. However, prosecuting al-Bashir may not rectify the problem, and may even pose greater challenges.
First, al-Bashir, in reaction to the issuance of the ICC arrest warrant, has already declared that several humanitarian organization would no longer be permitted to work in Suday (click here to read the article: Thus, even the little help that Sudanese refugees have been getting will likely be suspended or indefinitely terminated. Second, the ICC has no real means of getting its hands on al-Bashir. The court has no enforcement mechanisms, and it relies on the good will of its member states to deliver suspects to the Hague. Yet, while the court has many members, not all states have agreed to its jurisdiction. Sudan has never accepted ICC jurisdiction, and al-Bashir will remain safe as long as he doesn't leave Sudan for an ICC member-country. Third, many African leaders fear that arresting al-Bashir may simply provoke more instability in Sudan, and that the instability will spill over to other neighboring countries. Some African nations have already threatened to pull out of the ICC in retaliation for the al-Bashir arrest warrant. Fourth, paradoxically, the United Nations continues and will continue to deal with al-Bashir. The United Nations has stated that as long as al-Bashir remains the official head of state in Sudan, it will maintain relations with him and will continue working with him on all U.N.-sponsored humanitarian efforts. Thus, the ICC, a U.N.-linked organ, wants to arrest al-Bashir and simultaneously, high-level U.N. officials continue their work with him! The situation is even more paradoxical in light of the fact that the U.N. Security Council, which actually has the power to request the ICC to investigate a suspect, had already asked the ICC to investigate violations in the Darfur region back in 2005. This time around, however, the U.N. Security Council is unlikely to act as China, a Sudanese trading ally and a veto-member of the Security Council, will oppose any resolutions supporting the ICC arrest warrant. U.N. peacekeepers in Sudan have no jurisdiction or mandate in Sudan to arrest al-Bashir, absent specific Security Council authorization. Thus, it looks like al-Bashir may be safe from actual arrest, as long as he chooses not to travel to any ICC-supporting states, likely to hand him over to the Hague. This is essentially what happened to Charles Taylor of Liberia and Slobodan Milosevic of Serbia - both were rogue leaders, confined to their own countries as travel anywhere else exposed them to international arrest warrants.
Is that enough as deterrence to future world leaders? If future al-Bashirs know that they will be confined to their own palaces, will they refrain from committing serious violations of human rights law? Or, are we just making the situation worse, by attempting to condemn leaders without the means to actually remove them, and by jeopardizing whatever fragile truce existed in these volatile regions? I fear that the latter may be true. It seems that the ICC, in order to be truly effective, needs better enforcement mechanisms or at least the cooperation and support by the U.N. Security Council. Otherwise, the ICC simply risks agonizing precarious regions and rogue leaders, leading to more violence and suffering where none is needed.

Tuesday, March 3, 2009

Toward the Creation of a Palestinian State.....

U.S. Secretary of State, Hillary Clinton, recognized today that the creation of an independent Palestinian state would be "inescapable" (read the article here: This statement by our highest foreign relations official signifies an important shift from the Bush Administration stance on the Middle East, which basically engaged in a policy of isolationism toward most Arab nations (including Palestine), coupled with unconditional support for Israel. Even the Republican Party vice-presidential nominee, Sarah Palin, proclaimed several times during the 2008 election season that she "loved Israel." John McCain, the Republican Party presidential nominee, similarly proclaimed support for Israel, and attacked his opponent, Barack Obama, for the latter's willingness to engage with Arab nations like Iran and Syria without "precondition." The Bush Administration, and likely the McCain-Palin duo, if elected, seemed to blindly ignore the issues and problems present in the Middle East, to support Israel and to isolate and ignore everyone else. But that policy did not work, and it would not work in the future. Ignoring problems does not equate to solving them, and ignoring enemies does not equate to making them disappear.
President Obama, contrary to the Bush Administration and the McCain-Palin team, is correct in his approach to the Middle East, which consists of the following foreign policy features. First, the Obama Administration has pledged money - $900 billion - to rebuild Gaza. By helping the Palestinians, engaging in open dialogue with them, and stimulating their economy, the Obama administration hope to win more American support, to eradicate fundamentalists like Hamas, and to rebuild a democratic state in all the Palestinian territories. Second, the Obama Administration started to "nudge" Israel toward recognizing the inevitable: that the Palestinians are entitled to form their own independent state. It seems more than evident that the Jews and the Palestinians cannot live together. Moreover, isolating Palestinians and denying them economic progress only seems to foster fundamentalism and terrorism. Groups like Al Qaida, Hamas, and the Taliban thrive in poor, economically underdeveloped regions. Instead, allowing the Palestinians to form their own state and working with them to ensure that they respect the democratic process, and the territorial sovereignty of Israel, promises a more peaceful future. Third, the Obama Administration began to reestablish diplomatic relations with Israel's hostile neighbors, such as Syria. President Bush had, in yet another example of isolationism, severed diplomatic ties with Syria, which he accused of sponsoring terrorism. President Obama has recognized the inherent mistake of isolating our enemies and has begun the "restoration" process - Hillary Clinton has traveled to Syria this week in order to negotiate the reopening of diplomatic channels between Damascus and D.C. By engaging in diplomacy with hostile Arab states in the Middle East, the Obama Administration hopes to end the cycle of violence in this volatile part of the world, and to ensure that Israel is no longer surrounded by enemies.
The United States can remain "fiends" with Israel while supporting the creation of a Palestinian state and by dialoguing with Syria and Iran. In fact, such American course of action can only benefit Israel. I can only hope that the Israelis understand what President Obama is trying to accomplish.

Monday, March 2, 2009

The Promise Not to Torture: Is President Obama Serious? (Part II)

It just recently came to light that the CIA has destroyed nearly 100 terror interrogation tapes, a much higher number than had ever been publicly acknowledged before by the agency. The revelation came in a letter filed in New York by government lawyers, as part of a lawsuit filed by the American Civil Liberties Union (ACLU) seeking more information about the Bush administration terror interrogation tactics (click here to read about the case: The government lawyers making the admission claim that the tapes were destroyed in order to shield the identity of the CIA interrogators, because at the time these interrogations were performed, some of the same interrogation tactics were increasingly being attacked as illegal (for example, waterboarding).
I truly believe that the CIA interrogators were between a rock and a hard place. They were being ordered to harshly interrogate terror suspects, using tactics such as waterboarding. Insubordination and refusal to carry about the interrogations in such a manner could have resulted in harsh sanctions for the interrogators, including the possibility of being fired. On the other hand, their human dignity, sense of morality, and even partial and shallow understanding of international law should have led them to realize that such harsh interrogation tactics were illegal and morally reprehensible.
Who should be held accountable for these interrogations, now that we know that they were carried out, without knowing who exactly within the CIA acted as the executioner? I believe that the high-ranking policy makers within both the Bush administration and the CIA should face criminal liability. They are the ones responsible for these regrettable choices, and they are the ones who should now respond to the public about why they made those choices. The theory of command responsibility under international criminal law fully supports the idea of holding the commander liable for acts committed by his or her subordinates. Moreover, the deterrence theory of criminal punishment also points toward imposing liability on the "commanders." As I wrote a few days ago in Part I of this post, President Obama needs to install a policy of zero tolerance toward torture committed by any official of the United States. That policy can only function if the authors of torture planning are ultimately held accountable, "without exception or equivocation."