The Troops' Surge in Afghanistan: Just Another Iraq

President Obama recently announced a new "surge" strategy in Afghanistan, warranting the deployment of additional 30,000 troops over the next 18 months. According to the President, the troops would come home after the 18-month period, once the Afghan security forces were appropriately trained and could protect their own country independently. As justification for the sending of troops, President Obama cited the 9-11 Al Qaeda terrorist attack on the World Trade Centre, and the lingering Al Qaeda threat from Afghanistan that has continued ever since. Thus, the United States is preventively self-defending in Afghanistan, by trying to neutralize the enemy (Al Qaeda) before it strikes again.
I believe that the President is wrong in his strategy. Afghanistan looks like another Iraq: an unstable, ethnically diverse country, poor and potentially prone to housing terrorists. In Iraq, the United States sent troops in 2003 with the goal of quickly replacing the rogue Saddam Hussein regime. When commentators say that the surge in Iraq has worked, they imply that this goal has been accomplished. At what cost, however? In 2009, we are still in Iraq. Thousands of American soldiers have died, and so have countless Iraqis, caught up in so-called sectarian violence sparked through the American involvement. We have spent billions of dollars in Iraq, neglecting domestic problems and causing a major financial crisis at home. Now, soldiers are returning from Iraq to be immediately deployed in Afghanistan. It is likely that several years from now we will still be in Afghanistan, and that the surge there could work only if we sacrifice thousands of soldiers and billions of dollars....again. When Hillary Clinton and Robert Gates were questioned by the press about the 18-month deadline for the return of our troops home, they both fidgeted with their answers and admitted that the deadline was flexible, and that the President could always change his mind. 18 months means 18 months only if the President agrees, and in the summer of 2011, he may no longer agree.
Moreover, I believe that the President's justification for sending troops to Afghanistan is flawed. While the concept of preventive self-defense has evolved as an emerging norm of international law, it has not been universally accepted and countries, like the United States, that have relied on it, have been heavily criticized. When President Bush announced the infamous Bush Doctrine as justification for attacking Iraq, many world countries denounced this foreign policy and viewed the United States as an aggressor, not as a self-defender. President Obama runs the same risk with his justification of our involvement in Iraq. Al Qaeda is certainly present in Afghanistan, but this is not the only country where it hides. Its operatives train in Pakistan, Somalia, and other Arabian Peninsula countries. Does this mean that the United States should deploy troops everywhere in the world that Al Qaeda may have some presence? We cannot be everywhere at the same time, and we cannot possibly neutralize every terrorist operative. Counter intelligence should be our only strategy abroad, unless we have true evidence of an imminent threat of attack against us. Only then should we deploy thousands of troops, in the name of true self-defense. Otherwise, counter intelligence officials should protect our national safety, not thousands of soldiers. Afghanistan should not be another Iraq, and the Obama doctrine should not merge into the Bush doctrine.

Argentine Dictator Faces Justice: The End of Impunity

A former Argentine dictator and five others are now facing trial in Argentina for human rights abuses committed during the country's Dirty War (1976-83) (click here to read the story: http://www.cnn.com/2009/WORLD/americas/11/02/argentina.rights.trial/index.html)
The beginning of this human rights trial signals a shift in Argentine policy toward addressing past abuses. It has been 25 years since the right-wing dictatorship, during which thousands were tortured, murdered, or simply disappeared, crumbled. Yet, it is only now that some of those most responsible for such offenses are facing justice. The shift from impunity toward the reassertion of the rule of law and the imposition of appropriate punishment for those committing heinous human rights abuses has slowly taken place in Argentina. Other Latin American countries have similarly moved toward ending impunity. Chile has struggled with the decision to subject former dictator, Augusto Pinochet, to some form of prosecution, and has held him on a form of house arrest for the last decade. Uruguay and Paraguay have instituted commissions to deal with past human rights abuses. Elsewhere in the world, rogue leaders are facing justice. The Extraordinary Chambers in the Courts of Cambodia is a hybrid ad hoc tribunal, set up to prosecute high level officials of the Khmer Rouge regime, and the International Tribunal for the former Yugoslavia is currently prosecuting Radovan Karadzic, a former Bosnian Serb leader responsible for atrocities such as the Srebrenica massacre in 1995. International criminal law has become a hot body of law, embracing the concept of individual responsibility for human rights abuses. Argentina has finally confirmed that it respects international criminal law and that its commitment to human rights is firm in the 21st century.

The Goldstone Report: An Explicit Critique of Israel and Its Military Policy in Gaza

Justice Richard Goldstone formally presented to the Human Rights Council his Report of the United Nations Fact Finding Mission on the Gaza Conflict, released on Sept. 15, 2009 (click here to read the 600-page report: http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_Report.pdf). The Report related to the conflict between Israel and Hamas over a three-week period in Dec. 2008-Jan. 2009; it explicitly criticizes both Israel and Hamas for violations of human rights law and international humanitarian law. The Report, however, is widely seen as a condemnation of a long-lasting Israeli policy of military offensive against the civilian population of Gaza. The fact that the Report was drafted by Justice Goldstone, a prominent international jurist and a long-time supporter of Israel lends even more credence to some of the Report's allegations. The Report concludes that both Hamas and Israel committed international humanitarian law violations, but the majority of the Report's 20 + chapters focus on Israel. In particular, Israel is criticized for a range of acts, including abusive detentions, repression of dissent, a policy of indiscriminate military offensive against the people of Gaza, and many such acts, according to the Report, amount to violations of IHL and war crimes. The Report concludes that Israel is unlikely to establish any sort of a domestic accountability mechanism to punish perpetrators of these offenses; thus it recommends several international accountability measures. First, the Report calls for the UN Security Council to establish an independent committee of experts to monitor the situation. Second, the Report recommends that the UN Security Council refer this situation to the International Criminal Court, for a possible investigation. Finally, the Report urges other states to exercise universal jurisdiction and to indict perpetrators of the detailed offenses in their own domestic courts.
The implications of the Report are important and cause a serious risk for Israel. In fact, Israel has refused to cooperate with the Goldstone Mission, and has been issuing a series of answers and criticisms to the Report itself. This kind of behavior may be troubling for Israel, as it eliminates the possibility of seriously considering Israel as the proper forum to address any claims of IHL violations in Gaza. Moreover, European countries, some of which have already indicated a willingness to indict foreign leaders, may now have a complete evidentiary record of alleged violations in Gaza and may thus go forward with indictments and investigations of senior Israeli leaders and military commanders. It may be a better idea for Israel to seriously consider some of the Report's allegations and to provide an appropriate domestic alternative for possible investigations and prosecution. Such an approach by Israel would earn it international respect and credence for the claim that it's merely fighting terrorists in Gaza.
The Report certainly has its shortcomings too. First, any attempt to use the UN Security Council, as the Report speculates, will certainly fail as the United States has already expressed its unhappiness with the Report and unwillingness to allow for a Security Council probe into Gaza (click here to read the United States' response to the Report: http://geneva.usmission.gov/news/2009/09/29/gaza-conflict). Second, the Report fails to address a serious issue: the fact that Isreal has been engaged in so-called asymmetrical warfare in Gaza, and the fact that this new type of warfare calls for a modification of traditional IHL rules. Hamas has firmly embedded itself within the Gaza population, making it virtually impossible for Israeli military commanders to discriminate between military and civilian objectives. Any application of traditional IHL rules would certainly lead toward establishing criminal responsibility for Israeli military commanders; yet, such a result is unfortunate because it effectively prevents militaries from fighting terrorists any time terrorist mesh with civilians. The situation in Gaza is similar to those existing in many other regions: NATO faced the same dilemma when it decided to bomb the former Yugoslavia; the U.S. forces do as well in their fight against the Taliban in Afghanistan. While I am sceptical about some of the Israeli tactics and am concerned about the over-aggressive policy of military offensive against Gaza, I recognize the difficulty of fighting nontraditional wars, where military and civilian objectives blend and where protecting soldiers' lives may imply many civilian deaths. The Goldstone Report should have also recognized this difficulty, while condemning some Israeli actions and presenting a coherent peace plan.

The Best Venue for the Prosecution of Terrorist Suspects: Federal District Courts

The Obama Administration seems committed to redefining the parameters of the Bush era “War on Terror,” by ensuring that terrorist suspects are detained and prosecuted in full compliance with both domestic and international legal standards. Such a commitment to the rule of law by the Obama Administration has entailed a re-evaluation of the Guantanamo detention policy, as well as a redrawing of the current prosecution system available for terrorist suspects.
The lingering issue that the Obama Administration will have to address in the future years is how to design the best system for the prosecution of terrorist suspects. Any prosecution system will have to reconcile the tension between ensuring that terrorist suspects are incapacitated from harming American interests while providing them with blind justice and meaningful legal rights. The Obama Administration has realized that the desire to curb terrorism must yield to our country’s commitment to an even, unbiased justice system. I firmly believe that terrorist suspects should be prosecuted in federal district courts, and that several such jurisdictions should be designated as “specialized” for this purpose. By determining a handful of federal district courts as apt to prosecute terrorists (i.e., courts such as the D.C. District Court or the Southern District of New York, which regularly handle difficult and legally complicated cases, and which see a high number of international issues within such cases), the Obama Administration would provide terrorist suspects with the best venues for the legal adjudication of their cases. Prosecuting terrorist in all of our federal district courts could lead toward inconsistent results and potential appellate circuit court splits on issues of enormous national importance. Thus, consolidating terrorism trials in specialized jurisdictions could lead toward a uniformity of results and the development of a unique body of elaborate rules of law, consistently applied by a handful of judges in geographically isolated districts. Moreover, adjudication of terrorism cases in our district courts would eliminate the need for special military commissions, which have functioned fairly well in the recent year, but which have been criticized by many for their procedural and legal shortcomings.
Terrorist suspects are just like any other criminal suspect; their only particularity is the potential to harm American interests in a catastrophic manner. As long as terrorist suspects are detained and then meaningfully prosecuted before competent judges, our national interests will be as protected as they would have been through a military commission system or some other way of adjudication falling short of federal district court proceedings. By prosecuting terrorist suspects in federal courts, the Obama Administration would convey to the rest of the world that the United States respects the rule of law, even when dealing with high value detainees and people as dangerous as Osama bin Laden. The difficulty of prosecuting terrorist suspects in federal courts could be lessened by ensuring that the most competent prosecutors are assigned to those cases, that the investigative authorities share information and data with such prosecutors to the fullest extent, and that the best judges and jurisdictions only hear these cases.
If terrorist suspects are prosecuted in district courts, this will have a positive effect on our interrogation policies as well. In other words, if interrogators know that the potential suspects will one day face a federal judge, applying American law and procedural standards, they will likely shy away from coercive techniques, knowing that information thereby yielded would be excluded from any subsequent trials. Moreover, if terrorist suspects are prosecuted only before a handful of our federal jurisdictions, such courts will become experts in national security law, the applicability of the Geneva Conventions and other aspects of international humanitarian law, as well as detention and interrogation techniques. Thus, prosecuting terrorist suspects in highly specialized and competent federal courts would uphold our traditional rule of law, while signaling our commitment to such rule of law to the rest of the world and contributing toward the development and evolution of specialized rules of international humanitarian law, elaborated through our own courts.
Terrorist suspects are human beings and deserve a full measure of justice, just like any other criminal suspect. The military commissions, developed under the Bush Administration, are an inferior mode of justice that the Obama Administration should shy away from. Prosecution in specialized federal district courts is the only manner in which our national security interests can be protected and our legal justice system upheld.

The Caning of a Malaysian Woman Under Shariah Law: Why This is Wrong!

A Malaysian model was recently sentenced under Malaysian Shariah law to six lashes because of public drinking of alcohol (click here to read the story: http://inthefield.blogs.cnn.com/2009/08/24/model-to-face-caning-feels-regret-shame/). In fact, the woman in question had about three beers with some non-Muslim friends at a hotel, and was caught by Malaysian police. During her prosecution, she asked for leniency, arguing that she was a first-time offender and the mother of two young children. In the past, such an argument would have undoubtedly worked, as alcohol drinkers routinely received light sentences and fines. In the recent years, however, with the rise of religious fever in Muslim countries, Malaysian authorities started prosecuting people for Sharia law offenses, such as the drinking of alcohol, more aggressively, and punishing offenders more severely. This explains the sentence that the model received, and which will be carried out in the upcoming days. The model apologized for her behavior and for the fact that she had caused her family such suffering, and she refused to appeal her sentence choosing instead to be publicly caned.
The rise of religious fervor in Muslim countries is alarming. Shariah law has spread throughout religious communities, and even developed countries such as Malaysia seem to be applying with more rigor. In Pakistan, for example, when the Taliban took over the Swat Valley earlier this year, they immediately imposed Sharia law and banned girls from attending school. Shariah law also applies in Saudi Arabia, in Iran, in Yemen, in Afghanistan, etc., and more modern versions thereof have embedded themselves in modernized societies such as Morocco and Egypt. While some would defend the applicability of Sharia law under the theory of cultural relativism, I find it disturbing nonetheless.
First, under international law, certain things are strictly forbidden. Torturing people or using unnecessary force fall under this category; thus, the public caning of a person would certainly be viewed as prohibited under international law. Second, under international law any kind of discrimination is forbidden, and more specifically, under a multilateral treaty protecting women (CEDAW), discrimination against women is outlawed. Shariah law treats women as subservient to men, and specifically denies them basic rights, such as freedom of movement, freedom of eduction, property rights, etc. Third, the label of cultural relativism has been used to justify questionable practices, such as female genital mutilation, which, in my opinion, represents a form of violence against women. Cultural relativism is an important concept and should retain its place in modern-day theories of international law. However, it should not be used as a tool to approve all sorts of barbaric practices, nor as a way of avoiding the application of general international law that would outlaw such practices. While the public caning of the above mentioned Malaysian model may be justified under the theory of cultural relativism, it is illegal under international law. I believe that international law should play a role in all societies, as the protection of basic human rights spans the globe and reaches all peoples and religions. Shariah law should be reformed to reflect on modern-day international law protections and to embrace such protections, instead of nullifying them and rendering them obsolete.

Obama Restarts Military Tribunals for Gitmo Detainees: An Unfortunate Decision

President Obama announced on May 15 that he would restart military tribunals for a handful of Guantanamo detainees - a move that will undoubtedly irk many liberals (and please many conservatives) (click here to read the story: http://news.yahoo.com/s/ap/20090515/ap_on_go_pr_wh/us_guantanamo_trials). The military tribunals had been set up by the Bush administration in the wake of 9/11, and had faced a plethora of criticism from liberals, as well as many foreign countries, for denying the detainees with basic constitutionally and internationally protected rights. While only a small fraction of the detainees would be tried in the military tribunals under the Obama plan (the rest of the detainees will be tried in U.S. courts, released to their home countries or transferred to other states), and while the Obama administration has announced that it would change some of the rules currently governing evidentiary and procedural issues within the tribunals, the move is still somewhat surprising. President Obama had, as a senator, opposed the military tribunals and criticized them as falling short of our fundamental constitutional standards. Moreover, President Obama has pledged to close down the Guantanamo detention facility by January 2010. The decision to revamp military tribunals is nothing but an eleventh-hour effort to prevent all the detainees from being transferred to the U.S., where they would be accorded with more procedural rights and constitutional protections. In fact, the Obama administration, while making a laudable decision to close down the Guantanamo prison, exhibited a short-sightedness in terms of providing other accommodations and procedural avenues for the detainees that are currently held there. Human rights organizations and liberal commentators have all called for the transfer of all detainees to U.S. courts for prosecution, or for the release of those detainees who cannot be properly charged in U.S. courts. Conservative commentators, however, have criticized the decision to close Guantanamo by arguing that many of the held detainees pose significant security risks, and that, as our war-time enemies, they should be held indefinitely and not provided access to our courts. By deciding to revamp the military tribunals, President Obama has taken up the middle ground: he is attempting to appease the liberals, by promising that only a handful of detainees will go through the military commissions and by liberalizing the tribunals' procedural rules, and at the same time, he is appealing to a conservative base by holding on to a Bush era system and institutions. The middle ground may be a politically salient move, but in this case, I believe that it is the wrong course of action. Military tribunals fall short of all of our constitutional standards and fundamental beliefs; as such, they should be abandoned - permanently. When it comes to the constitution, there should be no middle ground. When it comes to fundamental values and beliefs, there should be no compromise. President Obama should have held on to his senatorial position and should have parted ways with military tribunals.

The Special Tribunal for Lebanon: A New Ad Hoc Hybrid Tribunal

Recently, the Special Tribunal for Lebanon began operating, by swearing in judges and establishing a first set of procedures. This tribunal is the latest in the recent trend in the international criminal community toward establishing hybrid tribunals on an ad hoc basis, to deal with particular situations, regions and issues. In fact, other such hybrid tribunals include the Special Court for Sierra Leone, the Iraqi Special Tribunal, and the Extra-Ordinary Chambers in the Courts of Cambodia. While each of these tribunals has special characteristics and a different degree of domestic v. international features, all of them reflect a consensus between the international community and the host country (Lebanon, Sierra Leone, Iraq, and Cambodia) that something ought to be done about particular crimes in the host crimes.
The Special Tribunal for Lebanon was established pursuant to an agreement between the United Nations and Lebanon, negotiated in 2006, and solidified through several Security Council resolutions (in fact, it had been the government of Lebanon that wrote to the United Nations, requesting the establishment of the special tribunal - a situation exactly alike to the one in Sierra Leone). The Lebanese tribunal has jurisdiction to investigate, and prosecute those responsible for, the attack of Feb. 14, 2005, in which former Prime Minister Rafiq Hariri was killed, and several other individuals were killed or injured. The tribunal can also investigate other acts if it finds that they are linked to the Hariri assassination. The tribunal, while directed to apply Lebanese criminal law, is of an international character because some of its judges and its prosecutor are "international" (some judges hail from Lebanon). Moreover, the tribunal's seat is in the Netherlands, not in Lebanon, a fact which adds to the international character of this institution. Like the Special Court for Sierra Leone, the Special Tribunal for Lebanon is composed of four offices: the Registry, the Prosecution, the Defense, and the Chambers (to read more about the tribunal, click here: http://www.un.org/apps/news/infocus/lebanon/tribunal/factsheet.shtml).
There are many arguments as to why establishing hybrid tribunals versus purely international ones is a good thing. Hybrid tribunals implicate the host country, if they are located in the host country, they help rebuild its judiciary, institutions, and domestic criminal law, they provide a sense of domestic justice and closure to the victims, can bring about national reconciliation, and can send a stronger message of deterrence domestically. On the other hand, ad hoc hybrid tribunals undermine the International Criminal Court ("ICC"), in instances where the situation could be investigated by the ICC because it fits its jurisdictional mandate. De facto, the United States, a main opponent of the ICC, has been a staunch supporter of ad hoc hybrid tribunals, possibly due to an implicit American policy of thwarting the ICC and sending cases elsewhere. It will be interesting to note whether more ad hoc hybrid tribunals are established during the Obama Administration reign, as our new president seems to have a more supportive stance toward the ICC and may prefer for cases to be prosecuted there. For now, however, the international community welcomes its newest hybrid member, the Special Tribunal for Lebanon.

Piracy in Somalia: Why It is Dangerous

The Somali pirates are dangerous.

They are sea-terrorists, operating on a supra-national level: beyond the reach of any laws, in the name of no particular state, and against no specific nations. They enjoy complete impunity – most of the time, they are simply chased off, and if captured, they are often released. It would be unimaginable for the United States to capture an Al Qaeda operative, or a member of any other terrorist group, in order to then promptly release him, not wanting to bother with the cost and difficulty of a criminal prosecution. Yet, this is precisely what some countries, like Great Britain and France, have done with respect to captured pirates. They have let them go. And the United States has, wrongly, not said a word about it. The global laissez-faire attitude toward the Somali pirates needs to change, and the United States’ passivity toward these sea-terrorists has to come to an end.

World powers like the United States should be willing to take on the Somali pirates for several reasons. First, the legal tools needed to capture and prosecute these pirates already are in place. The United Nations Security Council has facilitated the fight against Somali piracy, for countries willing to engage in such a fight, by passing five different resolutions during 2008. These resolutions authorize nations patrolling waters in the Indian Ocean off the Somali coast to cross into the 12-nautical-mile zone of Somali territorial waters if self-defending or pursuing pirates. Thus, countries willing to fight the Somali pirates have the Security Council’s green light to apprehend and capture them, be it on the so-called high seas, or anywhere within the Somali territorial waters. Moreover, a combination of two different international conventions regulating the law of the seas arguably provides jurisdiction to try pirates to either the capturing nation, or to any third nation where the pirates have been rendered for prosecution. Countries like the United States and Great Britain have even signed a memorandum of understanding with a regional partner, Kenya, whereby Kenya would try any pirates captured by the two great powers. Thus, world powers like the United States legally may apprehend and try Somali pirates; it is time that they actually do so. Second, pirates are sea-terrorists and may be or become linked to other terrorist groups. For now, we do not know whether the proceeds of piracy are financing other forms of terrorism. However, it is reasonably likely that the Somali pirates will be befriended by groups like the Taliban or Al Qaeda, for whom pirates can easily steal money and weapons. Furthermore, the Somali pirates, if linked to a terrorist group, may attempt to use the hostages that they are already holding (about 300 as of today) as political leverage against all sorts of unreasonable and politically dangerous demands. This type of hostage use is not novel – some may remember that back in the 1980’s, a faction of the Palestinian Liberation Organization hijacked an Italian cruise ship, the Achille Lauro, and refused to release the kidnapped hostages unless Israel released a group of Palestinian prisoners. The United States has been lucky until now: only one American ship was successfully hijacked by the Somali pirates, and after a three-day long stand-off in the Indian Ocean, all American hostages were safely rescued. In the future, the United States may not remain as fortuitous. The Somali pirates have already pledged that they would go after more American ships, and in the recent days, they have certainly done so (albeit, with no success). Thus, the threat of piracy linked to traditional forms of terrorism looms large for countries like the United States, which may become particular targets. Finally, not fighting the Somali piracy signals a message of passivity and carelessness to all sorts of potentially dangerous individuals and groups across the globe, looking to engage in similar types of criminal behavior. If the United States, or Great Britain, or France, is not willing to fight pirates in Somalia, then the Nigerian or Indonesian pirates may become just as brash in their efforts to seize ships, steal money and capture hostages. Then, piracy would become a global issue, as it once was in the 16th and 17th centuries. This is a dangerous proposal that should be cut at its roots.

The United States cannot do it all: it cannot fight wars in Afghanistan and Iraq, worry about Iran and North Korea, and negotiate between Israel and its hostile neighbors. It must prioritize its military and diplomatic efforts and give more importance to certain issues and certain geographic areas at particular times. Now is the time to focus on Somalia and its pirates. If the United States seriously began to capture them, prosecute them, and hand out stiff sentences, maybe other nations would follow and maybe the not-yet captured Somali pirates would begin looking for other (legal) lucrative activities.

Former Peruvian President Guilty of Human Rights Abuses

The Peruvian Supreme Court decided on April 7, 2009, that the country's former president, Alberto Fujimori, was guilty of human rights violations, and sentenced him to 25 years in prison (click here to read the story: http://www.cnn.com/2009/WORLD/americas/04/07/fujimori.peru.verdict/index.html). Fujimori, who ruled Peru from 1990 to 2000, has been imprisoned in Peru since 2006, and was already serving a six-year sentence on unrelated charges, involving abuse of power. Interestingly, a significant number of Peruvians still support Fujimori, who is largely credited with aggressive business and economic policies in the early 1990's that stirred Peru away from financial catastrophe. In fact, Fujimori was democratically elected as president of Peru three times (although his last election was critiqued as irregular and plagued with corruption allegations). Supporters of Fujimori, including his daughter, Keiko Fujimori, who is herself running in the 2011 presidential election in Peru, claim that his sentence stands for revenge and hate of the former president. His opponents, however, point to deaths and disappearances of numerous individuals in the 1990's, when Fujimori was fighting a Maoist insurgency in Peru, called the "Shining Path." Fujimori was accused (and convicted) of authorizing paramilitary death squads to operate against the insurgents during Peru's "dirty war" in 1991 and 1992. Fujimori himself has admitted that he had to "govern from hell, not a palace." When his regime crumbled in 2000, Fujimori fled Peru and exiled himself in Japan (he holds Japanese citizenship as well as he was born to Japanese immigrants in Peru), and then infamously faxed his resignation as president to Peru. Peru attempted to persuade Japan to extradite Fujimori to stand trial in his home country, but Japan remained unresponsive to the extradition request. Ultimately, it was Fujimori himself who sealed his fate when he decided to run in Peruvian presidential elections again in 2006. That year, he traveled to Chile where he was arrested and then extradited to Peru. He has been imprisoned ever since, and it is likely that he will die in jail, in light of his age (70) and his 25-year sentence.
Human rights groups and NGO's hailed Fujimori's sentence as unprecedented and extremely significant in the crusade of human rights protection. Fujimori is the first Latin American former head of state to be formally convicted of human rights violations, although many other countries in this region have experienced dirty wars of their own (El Salvador, Argentina, Paraguay, Chile, etc.). In 1998, a Spanish magistrate, Baltasar Garzon, attempted to indict and prosecute Augusto Pinochet, the former Chilean dictator. These efforts however proved unsuccessful as Pinochet was never extradited to Spain. Pinochet has been on various forms of house arrest in Chile, but he had never been tried or formally convicted anywhere else at the time of his death in 2006 (although there were numerous charges pending against him in Chile: click here to read the story: http://en.wikipedia.org/wiki/Pinochet). Thus, the fact that Fujimori, a former president, has now been convicted, appears of paramount importance to human rights advocates. This type of conviction of a former head of state signals to the world community that no one is indefinitely immune from prosecution for gross violations of human rights law. Even presidents can one day stand trial if they condone such atrocities. One can only hope that the Fujimori precedent stands and that it serves as a basis for future prosecutions of rogue leaders.

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: http://www.cnn.com/2009/WORLD/europe/03/29/gonzales.spain.gitmo/index.htm). 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.

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: http://www.cnn.com/2009/WORLD/asiapcf/03/23/kashmir.fighting/index.html). 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.

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: http://www.cnn.com/2009/WORLD/africa/03/06/zimbabwe.tsvangirai.accident/index.html). 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: http://www.cnn.com/2009/WORLD/africa/03/06/kenya.activists/index.html). 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.

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.” (http://www.icc-cpi.int/Menus/ICC/About+the+Court/). 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: http://www.nytimes.com/2009/03/05/world/africa/05court.html?_r=1&hp). 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: http://www.iht.com/articles/2008/07/22/europe/serbia.php). 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 http://www.un.org/News/Press/docs/2005/sc8351.doc.htm). 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.” (http://www.nation.co.ke/News/africa/-/1066/498290/-/147jnmsz/-/index.html). 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.” (http://www.hrw.org/en/news/2008/08/15/q-article-16).

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.

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: http://news.yahoo.com/s/ap/20090304/ap_on_re_eu/eu_international_court_darfur). 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.

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: http://news.yahoo.com/s/ap/20090303/ap_on_re_eu/ml_mideast_clinton). 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.

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: http://news.yahoo.com/s/ap/20090302/ap_on_go_ca_st_pe/cia_interrogations). 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."

ICTY Acquits Former Serbian President in Kosovo War Crimes Case

On Feb. 26, 2009, the International Criminal Tribunal for the Former Yugoslavia (ICTY) acquitted the former Serbian President, Milan Milutinovic, of charges of war crimes stemming from Milutinovic's role in the Serbian campaign of violence in Kosovo in the late 1990's. The ICTY held that it was the former Serbian leader, Slobodan Milosevic, who directed and orchestrated the violence in Kosovo, and that Milutinovic was nothing but his straw man, who had no direct power or control over the region (click here to read ICTY judgment: http://www.icty.org/x/cases/milutinovic/tjug/en/090226summary.pdf). The ICTY prosecutors, although disappointed by Milutinovic's acquittal, scored a victory nonetheless in the tribunal's guilty verdict of five other Serbian commanders in Kosovo: the former Yugoslav Deputy Prime Minister Nikola Sainovic, ex-Yugoslav Army Chief of Staff Dragoljub Ojdanic, former army generals Nebojsa Pavkovic and Vladimir Lazarevic, and Serbian police Gen. Sreten Lukic. Reactions to these convictions were predictably mixed. Most Kosovar Albanians welcomed the ICTY's willingness to punish those proven to have committed war crimes, but most Serbs interpreted the verdict as yet another indication of the anti-Serbian political inclination of the tribunal.
Who is right? Do the Serbs have any ground to feel victimized by the ICTY and singled out as culpable ones by the world community, when almost all other ethnic groups within the former Yugoslavia committed similarly reprehensible crimes? Maybe. The ICTY, since its inception, has indicted 161 suspects and most of them are Serbs. The ICTY did try the former Kosovo Prime Minister, Ramush Haradinaj, but acquitted him of all charges, in a direct blow to the Serbs who viewed Haradinaj as a war criminal and proponent of terrorist tactics against the Serbian population of Kosovo. According to Ivica Dacic, the current Serbian Deputy Prime Minister and Interior Minister, the verdicts have confirmed that "this entire process was political." While I do believe that the ICTY correctly convicted most of the indicted Serbian war criminals, I also think that in order to appear more neutral and credible toward all parties involved in the former Yugoslavian civil war, the ICTY should have indicted and convicted more individuals from other ethnic groups, such as the Croats, the Bosnian Muslims, and the Kosovars. Blind justice should be blind toward all, including the Serbs.

The Promise Not to Torture: Is President Obama Serious?

In his first address to the United States Congress, President Obama promised that the United States would not torture anyone (click here for the full text of the presidential address: http://news.yahoo.com/s/ap/20090225/ap_on_go_pr_wh/obama_text_1). In fact, President Obama went as far as to state that "without exception and equivocation.... the United States of America does not torture." I believe President Obama in his belief that we should not torture. But I do not believe all of our policy executioners' beliefs as to what torture means.
Very few world leaders have ever admitted that they endorse torture. Israel, a state outspoken about its harsh interrogation techniques of terrorist suspects, claims that it uses "moderate physical pressure" on such prisoners. The English police similarly used harsh interrogation methods against IRA suspects. Neither country ever admitted that it tortures, and both countries are signatories to the Convention Against Torture, an international treaty banning all sorts of torture and degrading and inhumane treatment. President George W. Bush publicly denied that the United States ever tortured anyone. Yet, in the recent years, it has come to light that several Guantanamo and CIA detainees have been water-boarded - a treatment that under most international treaties would qualify as torture. Other questionable techniques that could raise to the level of torture and that have been used by American interrogators include the use of sleep and sensory deprivation, awkward positions, intimidation by dogs, and mild physical contact such as shaking, only to name a few.
Why is it that world leaders routinely deny their endorsement of torture, while their countries' police and security agencies seem to engage in techniques that do in fact qualify as torture? The problem lies with the definition of torture in international law, and its application within domestic legal systems. The Convention Against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." (click here for the full text of the CAT: http://www.hrweb.org/legal/cat.html). Yet, different countries have implemented this provision in different ways, by adding reservations, declarations, and understandings to the CAT in their implementing domestic legislation. Thus, in the United States, the meaning of the CAT has been modified in an understanding, specifying that an act, in order to constitute torture, must be "specifically intended to inflict severe physical or mental pain or suffering...." 18. U.S.C. 2340-2340A. In light of this definition, the U.S. Army Field Manual 34-52 authorizes specific interrogation techniques, such as the use of psychological ploys, shouting at detainees or invoking a sense of fear, dietary manipulation, change of scenery, and isolation. Moreover, the same manual expressly prohibits the use of force, mental torture, threats, and insults, inter alia. Yet, our interrogators, as proven through numerous reports, documents, personal accounts, and the like, have abused the scope of their interrogative authority throughout the Bush years (click here for one such report: http://www.cnn.com/2008/US/06/18/gitmo.detainees/index.html) While I believe that our former president and some of his high-level cabinet members are to blame, I also believe that many interrogators overstepped the bounds of their authority inadvertently. The fact that there seemed to be no repercussions for such overstepping of boundaries only contributed to enhance a sense of power and impunity for the interrogators. Thus, shouting at detainees turned into shaking or slapping them; isolation turned into complete and prolonged solitary confinement, and invoking a sense of fear turned into threatening detainees with barking dogs.
I fear that the same thing could happen under President Obama. Interrogators are human and make mistakes and unless our Army Field Manual is updated to more specifically ban questionable interrogation techniques, such techniques may be used (again) in an erroneous belief that they are permissible. What should President Obama do to deal with this issue? Instead of promising that the United States would not torture, he could adopt a policy of zero tolerance toward interrogators who abuse prisoners. In order to assert "without exception or equivocation" that we do not torture, President Obama needs to do much more to assure himself that this is truly the case.

The Taliban Take Over Swat Valley in Pakistan: Why Nobody Seems to Care?

Over the last few months, Taliban forces have taken over the Swat Valley in Pakistan, located approximately 1o0 miles to the northwest of Islamabad, the Pakistani capital (click here to read more about the Swat Valley: http://en.wikipedia.org/wiki/Swat_valley). The Taliban have imposed Sharia law, have closed down all schools for girls, and have bombed and torched those schools that have refused to close down. Thousands of refugees have already fled the Taliban rule and have relocated either to Islamabad or to other parts of Pakistan. In an effort to halt violence, the Pakistani government signed a truce with the Taliban forces on Feb. 16, 2009. Under the terms of this peace agreement, the Pakistani government officially recognized the imposition of Sharia law in the Swat Valley and agreed to suspend any military efforts against the Taliban. The Taliban have won! They managed to take over a strategically significant portion of the Pakistani territory with relatively little resistance from the Pakistani government and from the rest of the world. The media coverage of the Swat Valley events has been scarce (click here for media articles on the Swat Valley: http://www.foxnews.com/story/0,2933,494446,00.html), and only "elite" programs like NPR broadcasts and PBS shows seem to carry any policy and politics discussions on this issue. Moreover, the United Nations has been passive and none of its organs have rushed to condemn the Taliban, or the Pakistani government's passivity. NATO countries have expressed concern (and nothing more), and so has the United States, although only through "anonymous" government officials citing the delicate relations with Pakistan as reason for the absence of any official American condemnation of the Taliban actions.
Why is it that nobody seems to care about the Swat Valley? Is it simply a forgotten part of the Earth where warlords have always ruled and tribal modes of life prevail, no matter who the current leaders are and how brutal and unacceptable their reign is? Or, is it just that Pakistan as a nuclear weapon state poses too much of a threat for the rest of the world, and that the Pakistani interior policy choices seem to receive a blanket approval, no matter what? I believe the latter to be true - our "no matter what" attitude with respect to the Pakistani government's laissez faire policy toward the Taliban is based on the fact that Pakistan poses a nuclear threat. But I also believe that our attitude is wrong for many reasons.
For one, while Pakistan poses a nuclear threat in general, the Taliban expansion into yet another geographic area poses a more ominous problem. The Taliban are ruthless: they kill and behead their enemies, they harass women, and they care little about what the rest of the world thinks of them. In fact, they seem to act despite the rest of the world - to annoy, to harass, and to intimidate. Moreover, the global passivity toward the Taliban, and the Pakistani government, signals a dangerous precedent of laissez faire world politics, where separatist, fringe groups can assert themselves in all sorts of ways (including military action) without any repercussions. This kind of global passivity can only lead to the proliferation of chaos in remote areas such as eastern Afghanistan and northwestern Pakistan, and can potentially spread to other countries, like Iran, Iraq, Syria, and Lebanon, only to name a few. Finally, from the perspective of human rights, letting the Taliban get away with the insurgency and violence in the Swat Valley signals that the world cares little about the respect of the human integrity, despite all the rhetoric and all the so-called protections embedded in international legal documents.
What should be the correct response toward the Taliban? Military action, either in the form of a humanitarian intervention sponsored by an alliance of willing countries, or in the form of a United Nations Security Council Chapter VII use of force against Pakistan. There is precedent for both in the recent decades (Kosovo, Iraq, Afghanistan, etc.) and the world should not be shy about relying on it to oust the Taliban and restore a democratic rule of law throughout Pakistan.