Americans in Baku: The Azeri Spirit

In my last post I described the superficial features of our temporary home – Baku, Azerbaijan. Here I will focus more on the Azeri people and their spirit, which I have gotten to know better over the last three weeks.

Azeris are stoic. They accept adversity easily and march on, without ever questioning the adversity, or any status quo for that matter. This is most likely a trait of their Soviet experience, and it is unlikely that it will change in the near future. They are also polite and extremely hierarchical. On the crowded metro, young men and women routinely get up to yield their seat to an elderly person, or to young children. Our five-year-old twins, falling into the latter category, are usually offered a seat within seconds of boarding on an overly crowded train. New Yorkers would have a lot to learn from this (on a crowded, rush-hour Manhattan subway, nobody leaves their seat – unless the train has arrived to their stop). Students are also respectful and deferential to their teachers. When I enter a classroom, they all rise (we were taught to do this in the communist Yugoslavia schools, but I do not think that this custom extended all the way up to the university level). When they need to leave the room to use the restroom, they politely ask. They address me as “teacher” – not Professor, not Mrs. or Ms. Sterio, simply “teacher.” Apparently, in the Azeri language this is a common term that students use to address their teachers, and it means more than just teacher. It means someone in a position of authority whom you respect, and in many ways I feel honored that they address me this way.
Azeris are also resourceful. Because many rigid rules exist about various things, people are always coming up with ways to (semi)-legitimately bypass the rule. It suffices to know the right person and to come up with the right strategy.
 
Azeris rarely smile. Not because they do not like you or do not like to smile, but because smiling is reserved for close family members and friends. Otherwise, smiling is considered inappropriate. I have seen many official portraits of the president, his family, of the university president and various deans and nobody ever smiles. And in public, Azeris are very quiet. Nobody raises their voice about anything, even when ten people cut the line in front of you, or when you are experiencing any other kind of a frustrating situation (and there are many here in Baku), you simply do not shout, yell, or otherwise exhibit any other kind of abnormal behavior. Again, New Yorkers would have a lot to learn! Everywhere we go, our children are the loudest. Azeri children do not scream, yell, or act unruly. Or maybe they do, but not in public. We recently went to a health center to get medical exams (this is part of a ridiculously cumbersome procedure for obtaining our long-term visa or residency permit); two boys were chasing each other and just going crazy. I was surprised at first, because I had not seen that kind of behavior here, but then they started speaking to each other – in English!

Azeris do not easily share information. Many times so far, I was in a situation where my Azeri counterpart had crucial information for me, yet chose not to share it with me at first. Not because they were trying to intentionally subvert or harm me, but simply because it never occurred to them that the information may be valuable to me. Or because they thought that I did not need the information right away. As much as this kind of attitude can be frustrating, one has to accept that Azeris simply do not believe in information overload – as the French say it, “chaque chose en son temps.”

I will post more soon about the university, and the Azeri spirit at play in that setting.

Americans in Baku: So Far, So Good

Due to popular demand, I have decided to temporarily devote this blog, which I otherwise use for professional posts, to weekly updates about our stay in Baku, Azerbaijan. Enjoy! It has been two weeks since we arrived to Baku, the capital of Azerbaijan and our temporary home for the next five months. Baku is a fascinating city in every sense of the word. It is a metropolis at the intersection of Eastern Europe and Asia, influenced by both its Persian origins as well as decades spent under the Soviet rule. Baku, or Baki in the Azeri language, is today a city of 3 million people along the shores of the Caspian Sea. It has developed incredibly over the past few years. Construction sites and cranes can be seen everywhere throughout the city, having popped up to restore old buildings, to erect new ones, and to transform Baku into another Dubai – a modern, elegant, luxurious, dreamy city of the future. Our apartment is a large 3-bedroom, on the third floor of a 10-story tower, a few minutes away from so-called Fountain Square, a large, marble-floored and fountain-ornamented square, which for all purposes constitutes the city center (one of only two McDonald’s restaurants in Baku is located in Fountain Square). The city has several other squares built in the same style – with elegant marble floors and spectacular fountains. All squares are immaculately maintained, and city-employed cleaners can be seen everywhere, wiping marble tiles, fixing any fountains that do not work, picking up garbage. Littering is inexistent, either because people are culturally predisposed to not littering, or because garbage cans can be found everywhere, literally within 20 feet of one another. We haven’t tested it, obviously, but littering could also be punishable by heavy fines and/or cause one many problems with the local police (police officers can also be seen everywhere throughout the city). Another beautiful feature of the city is a 5-mile long promenade along the Caspian Sea, the so-called “bulvar.” Although the Sea is polluted and grayish during winter months, the promenade is gorgeous. It is wide, marble-tiled, beautifully lit at night, neighbored by parks and more fountains, and full of Azeri couples, families, young families, and teenagers, strolling and just enjoying the scenery. On weekend mornings, runners can be spotted as well (yours truly also), but most of them seem to be foreigners with light skin and Nike running clothes. For local purposes, our apartment is luxurious. It is centrally-located and big, with ornamental hard-wood floors and flashy crystal chandeliers in every room. For our spoiled American standards, it is fine but lacking in basic amenities, such as a clothes’ dryer, a coffeemaker, or a proper wall-mounted shower. These would be luxuries in Baku, and would require another $1000 if not more in monthly rental payments. We have learned to live without them – we line-dry our clothes, make Ness instant coffee in the morning, and take showers while crouching in a large bathtub and holding the shower head (I had of course learned this skill while growing up in the former Yugoslavia, but after years in the United States, I do long for a long shower while standing up). Our landlord does not speak English, but his son does – sort of. When Fred texted the landlord’s son to ask him what to do about our electricity bill, which had been just glued to our front door, he texted back: “Mister, I do not understand.” He did show up at our place the next day, and when we showed him the bill, he was able to explain to us what to do with it. When we first met the landlord, the night that we arrived to Baku, he met us in the apartment, and after we discussed all the rental details and he was satisfied with our general appearance, he shook hands to seal the deal with Fred only. As a woman, I did not have the cultural right and privilege to conclude such an agreement with an older man. Even though I am the reason that we are here, and even though the landlord knew that I was the one working here and teaching at the university. This is a remnant of the Azeri Persian, and Muslim, heritage and culture. Although Azerbaijan is officially a secular nation, and although most people are not religious in the true sense of the word, the Azeri society is de facto segregated, with women mostly hanging out with other women and with each gender holding a specific post within their society. Women dress in provocative clothes (tight skinny jeans and high heels seem to be the norm here), drive cars, attend the university, and work, but they are not really equal with men in the family structure and the traditional culture. Teenage boys and girls do not really hang out, and it is common to see large groups of girls or boys hanging out at Fountain Square or drinking tea (“chai”) at a local café, but not boys and girls together as friends. The exception to this seemingly predominant norm is if a boy and a girl are dating – young couples holding hands and lovingly looking at each other routinely stroll the Bulvar along the Caspian Sea. Another way in which the Persian history and culture manifest themselves is through the local cuisine, and in particular, the local obsession with rice. Rice here is excellent; it is difficult to describe what it tastes like, but let’s just say that Uncle Ben would have a lot to learn from the local rice producers! Meat also seems to be a local staple, but only chicken, beef and lamb (pork is virtually nonexistent, except at foreign restaurants and European-style grocery stores). Finally, although the state is officially secular, every morning at 6:30 we hear the call for prayer from a local mosque. I am not sure how many people actually pray at the requisite times, but the calls for prayer continue throughout the day, for a total of five times. On another level, Azerbaijan seems still heavily influenced by its Soviet past. Azeris are stoic and orderly; they never lose their temper, even in the face of chaos and adversity (my kids need to learn from this, but more on that later). This is most likely something that they learned through decades of the Soviet rule – that it is not possible to change things and that you should just keep going, without complaining, no matter what happens. They are polite, with Soviet-instilled values, such as yielding your suit to an elderly person on the metro, or rising when the professor enters the classroom. They are hierarchical – it is normal for a professor to cut the line for the elevator at the expense of students, as it is normal at the university to have separate bathrooms, the nice ones for the professors and the Turkish-style hole-in-the-ground for students. A young person does not address an older one in a position of authority without being spoken to first; a younger colleague does not challenge an older one; a child obeys his or her parents (again, my kids could learn here too!). A final point on Baku State University, where I am teaching at the law department. The university is state-owned and operated; all curriculum is state-dictated and all class instruction is filmed (I was warned against engaging in any political discussions with my students). The class schedule is determined literally the day before the semester starts, and during the first few weeks, schedule changes are frequent. Students do not seem to mind; they consult daily bulletin boards which tell them where to go and at which times. It seems that professors are routinely asked to switch classes – I had to decline when I was asked, a week before the semester started, if I wouldn’t mind teaching Intellectual Property Law instead of ADR (I have zero knowledge of the former). My students seem very nice and glad to have me here; we will see whether this continues throughout the semester. So far, so good. More updates will follow on a regular basis.

UN Contact Group on Somali Piracy Meeting

Here is a link to a blog post which I wrote recently for Intlawgrrls: http://www.intlawgrrls.com/2012/09/report-from-un-meeting-on-somali-piracy.html#more

On Dependent Independent States: South Sudan

This post has been cross-listed at Intlawgrrls.com. In recent years, several new states have been created: East Timor, Kosovo, and South Sudan, to name a few. While these entities’ statehood may appear unquestionable and almost universally accepted in the global community, their existence poses difficult questions about the contours of statehood and the desirability of supporting statehood for regions which remain heavily dependent on external aid. South Sudan, the most recently created state, illustrates some of these difficult questions. South Sudan, in other words, may be an example of a dependent independent state. South Sudan celebrated its independence a year ago, when its inhabitants voted in a popular referendum to separate from their mother state, Sudan. Sudan was a product of decolonization and of the principle of uti possidetis, whereby colonial powers created independent states throughout the African continent pursuant to pre-existing colonial borders and with little regard of the wishes of local populations. Sudan was doomed from the outset, as its predominantly Arab Muslim inhabitants of the north shared little in common with the predominantly black African southerners. Despite civil wars between the north and the south, Sudan remained a single state for several decades, possibly because of Cold War politics which dictated the continuation of status quo. Post-Cold War and post-9/11, the people of South Sudan ultimately succeeded in garnering enough support in the world community in order to assert their bid for independence and statehood. In the summer of 2011, the South Sudanese held an independence referendum, at which the overwhelming majority of the population voted to separate from Sudan. Thus, the new state of South Sudan was created and subsequently recognized by most world powers. Yet, from the outset, South Sudan has been plagued by existential problems. Border skirmishes threatening to evolve into full warfare have continued between Sudan and South Sudan. Many accuse the Khartoum regime of orchestrating deadly raids on the populations of the southern portion of Sudan, which have resulted in a massive refugee crisis and migrations toward South Sudan. Oil production has been cut off in South Sudan, resulting in hardship for its civilian population. Finally, the newly established government of South Sudan is by all accounts extremely corrupt, preventing the flow of foreign aid from reaching populations of South Sudan most in need of such help. Foreign investors have been turned off by the threat of warfare with Sudan and by the overall state of corruption, and the South Sudanese economic development has been stalled. Under such dire circumstances, South Sudan may survive only with external help: through United Nations Security Council involvement which could prevent war with Sudan; through economic aid by world economic, financial and trade organizations; through foreign investment; through the world powers’ willingness to support the statehood of South Sudan at all costs. South Sudan is thus a dependent independent state, a phenomenon which calls into question the legitimacy of its existence. The four criteria of statehood under international law include territory, government, population, and the capacity to enter into international relations. It is the fourth pillar of statehood which seems difficult to fulfill in the case of South Sudan, as its capacity to engage in any sort of international affairs remains dependent on external aid. Moreover, the phenomenon of dependent independent states sheds light on the (un)desirability of creating and supporting statehood for entities which cannot survive on their own. A better model for such entities could be the creation of a transitional period of shared governance between the independence-seeking entity, its mother state, as well as the United Nations or another international organization. During this type of a transitional period, the independence-seeking entity could strive to develop its own institutions, to promote economic development and to strengthen its borders, so that when it becomes truly independent, it no longer depends on its supporters for the protection of its sovereignty. Sovereignty and statehood typically co-exist and are mutually necessary; the phenomenon of dependent independent states creates artificially sovereign states which do not qualify for statehood under international law. Hopes for a better future for South Sudan remain slim, despite its independence and achieved statehood.

Attorney General Holder on Targeted Killings

Eric Holder, the Attorney General of the United States, recently clarified the United States' policy on targeted killings of American citizens abroad. According to the Attorney General, the targeted killing of a U.S. citizen would be lawful under the following circumstances:

“[A]n operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.”

For the first time ever, the Obama Administration has attempted to clarify legal parameters of the use of force against American citizens in a counter-terrorism operation. While this is a laudable endeavor, many questions remain unanswered, as other scholars have already pointed out. Who in the Administration is supposed to make the determination of which individuals pose such imminent threats? What kind of a review is necessary? What does the concept of "imminent threat" entail? And what does the feasibility of capture imply - would the promise of an otherwise unfriendly foreign government to help in the capture of a wanted suspect suffice?

Another important point to emphasize is that the Attorney General seems to imply that a variant of human rights law applies to the targeted killing of American citizens abroad. The Attorney General stated that the operation would have to be conducted consistently with applicable law of war principles; however, law of war principles do not contain the above-mentioned conditions of imminent threat and non-feasibility of capture. In other words, enemy combatants can be targeted under the laws of war at any time, irrespective of whether they pose an imminent threat and of whether they can be captured easily. On the one hand, it is reassuring to hear that the Attorney General believes that human rights law is applicable to targeted killings. On the other hand, it is disappointing to think that, according to the Attorney General and the Obama Administration, human rights law only applies to targeted killings of American citizens, but not to targeted killings of other countries' nationals. Marko Milanovic on EjilTalk has already made this point, in an excellent blog post. I agree wholeheartedly with Marko: the distinction between American citizens and non-citizens for the purposes of targeted killings is not only morally repugnant but potentially unlawful. Our Constitution, in the 5th Amendment Due Process Clause, states that “no person … shall be deprived of life, liberty, or property, without due process of law.” The Constitution does not state that "citizens" should not be deprived of life, liberty or property without due process of law. And our Bill of Rights fails to make this distinction as well. As Marko has written in the post mentioned above, "Why exactly is Al-Awlaki’s life deserving of more legal protection than (say) Osama bin Laden’s is simply beyond me."

Finally, what is also normatively incomprehensible is the distinction between the possibility of targeting American nations on U.S. soil versus the same kind of targeting outside the U.S. Why would it be lawful to target and kill American citizens when they are found abroad when it would be perfectly unlawful to target and kill the same citizens if they were to be found home? In the United States, it would be illegal to shoot any suspect at point blank, without due process of law. Why such killings should become lawful the minute that the suspect crosses the border to Canada or to Mexico remains a mystery.

New Post on IntLawGrrls

I posted the following on IntLawGrrls:

http://www.intlawgrrls.com/2012/02/syria-serbia-different-countries-same.html

Guantanamo: 10 Years Later

Exactly ten years ago, the first group of detainees arrived at Guantanamo Bay, Cuba. In the wake of 9/11, Donald Rumsfeld referred to them as "the worst of the worst." Some of them were exposed to harsh interrogation techniques, such as waterboarding, the use of stress positions and sleep deprivation in the early days of their confinement. While some have been cleared of enemy combatant status and released, either to their home countries or to third states, some are still at "Gitmo." Why? How can a presumably law-abiding nation, like the United States, justify the indefinite detention of terrorist suspects?
The simple answer is that we are engaged in the so-called "global war on terror." According to this theory, constructed by the Bush administration, 9/11 was an act of war; the United States thus became involved in a global war against terrorism. The parameters of the war are truly global: the battlefield is found wherever the combatants themselves can be located, and the United States can strike in any location where it situates such a combatant. The United States can choose to kill an enemy combatant, and this option has been exercised through drone attacks in Pakistan, and most recently in Yemen, when al-Awlaki, a U.S. citizen suspected of terrorist activity was killed The United States can also choose to detain enemy combatants and bring them either to Guantanamo Bay, or to another location such as the Bagram prison in Afghanistan. Enemy combatants brought to Gitmo can be held until the end of hostility - thus, indefinitely (when does the global war on terror end? presumably never as terrorists will always exist throughout the world......). Because of clever human rights lawyers and their work, which has resulted in Supreme Court cases such as Hamdi, Hamdan and Boumediane, some detainees have successfully challenged their detention at Gitmo in our federal courts. Some of such detainees have been released. However, other detainees, because of newly passed federal laws, have not been able to challenge their detention. Some will be tried in the military commissions, an option inferior to federal court prosecutions but infinitely better than indefinite detention without any access to court. Some will be prosecuted in federal courts. Yet, some of those same detainees may never be released because, despite a court or commission ruling that a detainee is not an enemy combatant, the United States' position is that it does not have to release such detainees because they may nonetheless constitute a threat.
The Obama administration initially opposed this view, and in his first days in office, President Obama signed an executive order to close Guantanamo Bay. The President explored options, such as bringing the alleged terrorists to the United States for trial, but has faced political backlash and tremendous opposition because of security concerns. The current position of the Obama administration is that Gitmo is here to stay. In a recent law, signed by the President, transfers of detainees into the United States for trial are prohibited, while transfers of cleared prisoners to third countries are restricted. The same law, which has been debated hotly on other blogs by experts in national security law (see, e.g., www.opiniojuris.org), reaffirms the presidential authority to detain and hold, without trial, other suspected members of Al Qaeda, Taliban, or other associated forces (read the article here: http://www.cnn.com/2012/01/11/world/analysis-gitmo-ten-years/index.html?hpt=ju_t2). This position by the Obama administration is more than troubling, and it seriously tarnishes the image of the United States as a law-abiding citizen of the world. Let's hope for changes after the forthcoming presidential election, and for a world without Guantanamo Bay.

Prosecuting Somali Pirates in the Seychelles: A Great Idea

I recently blogged on IntlawGrrls about my trip to the Seychelles (click here: http://intlawgrrls.blogspot.com/search/label/Milena%20Sterio). Below, I explore additional issues related to the prosecution of Somali pirates in countries like the Seychelles.

After a week in the Seychelles,
where I attended meetings with the Seychelles’ Attorney General and Supreme
Court judges, I am back in the United
States, and would like to take this opportunity to reflect on some of the legal
issues related to Somali piracy and prosecutions in the Seychelles’ national
courts.
For any nation interested in
prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to
prosecute pirates, it must amend and expand its jurisdictional statute to allow
for such prosecution on the broadest possible basis. The Seychelles has thus revised its national
law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows
countries like the Seychelles to prosecute acts of piracy to which they have no
nexus. Many countries, including the
Seychelles before this revision, have jurisdictional statutes that allow for
pirate prosecutions only if the act of piracy is committed in that country’s
territorial sea, a stretch of sea extending 12 nautical miles from the
country’s shore. Thus, acts of piracy
committed outside of such countries’ territorial sea cannot be prosecuted in
those countries’ national courts because of a basic jurisdictional
shortcoming. Mauritius, another island
nation in the Indian Ocean and another potential partner in the global fight
against Somali piracy, has also started tampering with the idea of expanding
its jurisdictional statute to allow for national prosecutions of Somali
pirates. It is unclear however how Mauritius
will revise its statute. Some reports
indicate that Mauritius’ law will only allow for prosecutions of piracy acts
committed in the Mauritius exclusive economic zone, a stretch of sea extending
200 nautical miles from the country’s shore.
This kind of a revision would seriously limit Mauritius’ ability to
prosecute Somali pirates, as acts committed on the high seas would be excluded
from Mauritius’ jurisdictional reach. In
the Seychelles, it appears that jurisdiction will not pose problems, in light
of the new universal jurisdiction statute that this country passed. One issue that remains unclear is whether the
Seychelles’ government will demonstrate an ongoing political willingness to
support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal
jurisdiction statute, the Seychelles’ authorities may prove unwilling for
policy reasons to extend their courts to prosecutions of Somali pirates who
have not threatened the Seychelles’ national interests in any way.
Another possible mode of
jurisdiction that countries like the Seychelles may adopt in the future is the
protective principle – a type of jurisdiction that allows for prosecutions of
acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction
has been used to prosecute offenses such as treason, counterfeiting of national
flags, currency and emblems, and immigration violations, it is possible that
acts of piracy could be conceived of as violating the national interests of
certain countries and thus prosecuted under this model of jurisdiction. The advantage of using the protective principle
may be in the fact that it could allow for the prosecution of acts committed in
preparation of piracy, that do not qualify as piracy itself. For example, certain acts that do not
constitute piracy may nonetheless constitute presumptive offenses, such as
sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal
jurisdiction is of no help because universal jurisdiction statutes only cover
true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the
other hand, could be used to cover these kinds of crimes and countries like the
Seychelles may successfully make the argument that the planning of a piratical
act could threaten their national interests, because the act of piracy, even if
committed on the high seas, could potentially be harmful to such countries if
it can be shown that pirates were about to target such countries’ vessels or
nationals or enter such countries’ exclusive economic zone. Using a combination of universal jurisdiction
to cover true acts of piracy with the protective principle to cover preparatory
offenses would enable countries like the Seychelles to prosecute the maximum
number of piracy-related violations occurring on the high seas.
The next issue related to the
prosecution of pirates for countries like the Seychelles is the ability to
prosecute Somali pirates in situations where the latter are detained by the
naval authorities of another country.
Here, the Kenya model of MOU’s which I discussed in my IntLawGrrls post proves useful. The
Seychelles, like Kenya, have thus concluded transfer agreements with the
European Union and the United Kingdom pursuant to which Seychelles has accepted
to prosecute Somali pirates detained by the EU or UK forces on the high
seas. The Seychelles’ Attorney General
has informed us that eleven successful piracy trials have already taken place
in the Seychelles’ courts; in all these cases the pirates had been detained by
the EU/UK forces and transferred to the Seychelles. The pirates have been prosecuted for the
offense of piracy existing under the Seychelles’ domestic criminal law. Moreover, pirates have been prosecuted under
the theory of “common intention,” a mode of joint criminal liability which
allows for combined prosecutions of all pirates involved in a single piracy
incident. This has enabled the Attorney
General to prosecute pirates in groups of ten or eleven, as well as to charge
all those involved in a piracy incident with the same offenses, irrespective of
their role in the incident itself. Thus,
the prosecutors in these cases did not have to bother with proving what exact
role each pirate played in the piracy incident.
Rather, each pirate is charged with the act of piracy itself and each
pirate will potentially be imposed the same criminal sentence. According to the Attorney General, convicted
pirates have received sentences ranging from five to twelve years of
imprisonment, and several other pirates are currently detained and awaiting
trial.
The next issue that countries like
the Seychelles face is prison capacity and the adequacy of detainment
conditions. The Seychelles as well as
Kenya have benefitted from financial assistance by major maritime nations as
well as the United Nations. Thus, in the
Seychelles a new prison wing has been built; this wing is “reserved” for the
detention of Somali pirates and arguably coincides with international detention
standards. This in turn will preempt the
non-refoulement human rights argument, that would prevent countries signatory
to major human rights treaties from transferring pirates to any place where
pirates would be likely mistreated. In
fact, the Seychelles has clearly demonstrated that its prosecutions are fair
and neutral, and that pirates are detained pre- and post-trial in humane
conditions. Capturing nations should not
face non-refoulement type issues when deciding whether to transfer detained
Somali pirates to the Seychelles’ authorities.
Finally, countries like the
Seychelles may be faced with post-detention issues – in other words, once
Somali pirates have finished serving their sentences, they may choose to apply
for political asylum in the Seychelles.
While nobody should be blamed for wanting to live in this tropical
haven, it is reasonable for the Seychelles’ authorities to question the need to
extend their country’s protection to individuals who have committed heinous
offenses such as piracy. It is one thing
to detain Somali pirates for a set number of years, it is quite another to
offer them political asylum and the possibility to freely live in the
Seychelles forever. I would be loath to
discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention
issues remain a complex issue that the Seychelles’ authorities may have to
ponder in the near future.
I look forward to blogging about
Somali piracy in the future, and hope that other countries, like Mauritius,
will follow in the footsteps of the Seychelles and seriously consider opening
their courthouse doors to piracy prosecutions.

Does Libya Have the "Right" To Prosecute Gadhafi's Son?

Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (ICC), announced today that Libya could prosecute Saif al-Islam Gadhafi, son of the recently ousted and killed Libyan dictator Moammar Gadhafi (click here to read the story: http://www.cnn.com/2011/11/23/world/africa/libya-icc/index.html?hpt=wo_c2). Al-Islam, his father's heir
apparent, was captured by the Libyan authorities last weekend. Both Moammar
Gadhafi and his son had been indicted by the ICC on charges of crimes against
humanity earlier this year. Moammar Gadhafi was killed shortly after his
capture, but al-Islam was captured alive. Thus, Moreno-Ocampo originally announced that the ICC would try al-Islam- possibly because this is the only Gadhafi who would face
international justice, and possibly because such a high-profile prosecution
would enhance the legitimacy of the ICC and mark the last grandiose achievement
of the outgoing prosecutor, Moreno-Ocampo, whose term will be expiring at the
end of this year. However, in a stark reversal of position, Moreno-Ocampo announced that Libya had the right to try Gadhafi's son, if it could prove to the ICC judges that it had the capacity to
do so. In fact, Libyans will have to demonstrate to a panel of ICC judges that
their country has a functioning and independent judiciary. If ICC judges confirm that this is true, then al-Islam will face justice in Tripoli instead of at the Hague.
Many may wonder about Moreno-Ocampo's seemingly sudden
change of heart. The ICC prosecutor stated to the media today that Libyans "are proud," and that it would be a "matter of national pride to show that Libyans can do the case."
While this may be true, is Moreno-Ocampo correct in his assessment that Libyans
have the "right" to prosecute Gadhafi's son? Yes, but only if Libyans
can demonstrate a true capacity to conduct a fair, neutral criminal case
against Gadhafi's son. The ICC system functions based on the principle of complementarity
- the idea that national jurisdictions take precedence over international
prosecutions at the Hague, if they (national courts) are willing and able to prosecute
charged defendants. Thus, the ICC should only prosecute in those cases where the concerned state is unwilling and unable to prosecute a defendant. In the case of
al-Islam, the relevant inquiry becomes Libya’s willingness and ability to
prosecute him. While Libya is certainly "willing" to put Gadhafi's son before its judges, it is uncertain if it is "able" to do so. "Ability" in this context refers to the possibility of
conducting a fair and just trial, with impartial judges and the application of reasonable
national or international criminal laws. Under this standard, is Libya truly "able" to prosecute
al-Islam? This is what Libyans will have to prove to ICC judges, and if ICC
judges are satisfied, then arguably Libyans do have the right to prosecute Gadhafi's son.
Is Moreno-Ocampo's decision advantageous for the future of the ICC and its overall
reputation and legitimacy? In the context of Libya, this decision signifies
that any other Gadhafi collaborators caught by the new Libyan authorities could
also be prosecuted in Libya (that is, if ICC judges determine that Libya is
"able" to prosecute Gadhafi’s son), based on the al-Islam precedent. This could mean that the ICC may never get its hands on any Libyan defendants, despite several existing arrest
warrants. If national prosecutions in Libya
are conducted in a fair manner, them the lack of ICC prosecutions may not be
too disadvantageous. If Libyan prosecutions turn out to be a sham, however, then the ICC may appear as yet another international law organ: a player capable of issuing legal orders, but
incapable of enforcing them. And in terms of a global deterrence message to other rogue leaders across the world, a potential ICC prosecution carries significantly more weight than a national one where proceedings may be carried out behind closed doors and where the
international law community may have very little impact. Thus, leaders in countries like Yemen and Syria may not be particularly deterred in their abusive governance by a Libyan prosecution
of Gadhafi's son, especially if such Libyan prosecution is marred by irregularities. If ICC judges grant Libya the right to prosecute Gadhafi's son, and if Libyan prosecution of Gadhafi's son is not
properly conducted, Moreno-Ocampo may forever regret his decision.

Hoping for an Arab Summer: The Need for Democracy Building in North Africa

The world community applauded when popular uprisings throughout North Africa resulted in overthrows of long-standing dictators. As a consequence of the so-called Arab Spring, Tunisia, Egypt, and now Libya, managed to rid themselves of Ben Ali, Mubarak and Gaddafi and to position themselves for a transition to democracy. Alas, democracy seems to have bypassed this region of the world. In Tunisia, right wing political parties emerged and seem to be winning more and more popular ground (click here for the story: http://www.cnn.com/2011/10/28/opinion/adib-moghaddam-tunisia-islam-shift/index.html?iref=allsearch). It is questionable whether Islamist victory in Tunisian elections would be compatible with true democracy, allowing for freedom of speech and racial and gender equality. In Egypt, human rights activists who were instrumental in bringing down Mubarak now face detention and the threat of torture at the hands of the new government's authorities. Allegations surfaced that a prominent activist was recently tortured to death while in official state custody (click here for the story: http://www.cnn.com/2011/10/28/world/africa/egypt-detention-death/index.html), while another human rights crusader was recently detained at one of the most notorious Cairo prisons. By all accounts, the current Egyptian government consists of the same military leaders who supported Mubarak, and cynics have opined that the military took advantage of the Arab Spring to oust Mubarak and reclaim all the power for itself. Thus, any prospect of a true democracy seems far-fetched in Egypt today. In Libya, UN Security Council authorized a military intervention to protect civilians against Gaddafi's forces; such intervention resulted in the ousting, and ultimately, capture and death of Gaddafi. Now, rivalries rage among fighting regional militias, all vowing for a prominent position in the new Libyan government (click here for the story: http://www.cnn.com/2011/11/02/world/africa/libya-infighting/index.html). Once again, it is uncertain whether democracy will prevail.

Such unfortunate developments in North Africa highlight the need for further democracy building. The world powers cannot stop at military intervention; rather, they should invest brain power and resources in the rebuilding of democracy post-Arab Spring revolutions. As we all know, revolutions may result in the creation of new, even more troubling regimes, and Ben Ali, Mubarak and Gaddafi could be quickly replaced by rogue leaders of the same caliber and propensity toward dictatorship. In order to prevent this outcome and to foster stability in North Africa, world super powers should participate enthusiastically in the reshaping of a new democratic Tunisia, Egypt, and Libya. If world powers embrace this role, we may experience an Arab Summer: a prospering of democracy in these post-revolution societies.

The Iranian Murder Plot: A True Attempt or Fabrication?

News spread over the last few days that members of the Iranian Revolutionary Guard Corps- Quds Forces plotted to assassin the Saudi ambassador in Washington, D.C. (click here for one of the news stories: http://www.cnn.com/2011/10/12/justice/iran-saudi-plot/?hpt=hp_t1). If true, this allegation would be more than serious for Iran: it could face diplomatic and economic sanctions, as well as a possible military strike by the United States. Carrying out murder on foreign soil is a serious affair and a violation of sovereignty of the country where the murder is carried out. If this murder plot were true, then a retaliatory strike by the United States against Iran could be justified under international law.
World leaders around the globe seemed to accept the truthfulness of the plotted murder story. U.S. Secretary of State, Hillary Clinton, called for accountability for Iran, and stated that Iran's actions were reckless and would undermine international norms. David Cameron, the British Prime Minister, stood by the United States' allegations and proclaims Britain's support of its long-standing ally. The French Foreign Ministry called the plot "an outrageous violation of international law." And the Saudi prince, Turki al-Faisal, an important member of the Saudi royal family, vowed that "someone in Iran" would "pay the price" for this kind of behavior.
However, the alleged Iranian murder plot reads more like a mystery novel than the work of a serious governmental security force. First, there seems to be no apparent motivation for the attempted murder. Although Iran is a predominantly Shi'a state, whereas the Saudis are mostly Sunni Arabs, this fact alone does not justify the attempted murder of a Saudi ambassador. Moreover, the ambassador was not a very prominent member of the Saudi ruling regime, and it is doubtful that Iran would achieve anything significant by eliminating this lone, mid-level Saudi diplomat. Second, even if Iran had wanted to eliminate the Saudi ambassador, it would be ludicrous to plan the attack in the United States, let alone in Washington D.C. Iran could have carried out the attack in any other third country that the ambassador was visiting, such as Jordan or Syria or Yemen - a country which would not have the political and military cache of a super power, like the United States. Third, it is incredulous that the Iranian Quds Forces would attempt to contact a Mexican drug cartel to execute the murder. Quds forces certainly have the necessary training and capability to execute any type of murder, which casts doubt on their willingness to involve Mexican organized crime in this affair. Moreover, Mexican drug cartels are profitable businesses, not interested in entering into risky ventures on American soil, such as the execution of a Saudi ambassador. It is extremely likely that Iranian Quds Forces would have known this about the Mexican drug cartels, as Iranians themselves have faced drug-related problems coming from Afghanistan. Thus, it is more than likely that Quds Forces would have never thought of involving the Mexicans in an attempted murder of a foreign diplomat in Washington D.C. Finally, even if Quds Forces truly had wanted to contract out the execution to a Mexican drug cartel, one would have to wonder about the sloppiness of the alleged operation. Numerous international telephone conversations were taped, where the parties were allegedly conspiring about the murder; moreover, money that was to be paid for the execution was internationally wired. Anyone of the Quds Forces' savvyness would know not to discuss murder plans over international phone lines, and not to wire money into the United States, as these actions would necessarily trigger FBI scrutiny.
In light of the above observations, I have to wonder about the truthfulness of the allegations against Iran in the attempted murder plot. Is this just an American tactic, fabricated in order to increase tension between the United States and Iran, in order to deflect public attention from the ongoing financial and economic crisis within America? Is this similar to the weapons of mass destruction story in Iraq - an allegation fabricated in order to increase public support of an attack on Iraq, in order to oust Saddam Hussein? Hillary Clinton in her remarks was careful to indicate that the American response against Iran would be purely diplomatic and economic (sanctions), and that no military response would be attempted as of now. It is almost as if she did not believe the story herself. Other commentators have pointed out that Iran could very well be the culprit here. Quds Forces have certainly carried out other murders on foreign soil, and this kind of an attack would fit perfectly within the current Iranian regime's provocative tactics. Furthermore, there seems to be some solid proof against the persons involved in the alleged scheme - enough to warrant a federal indictment and the global announcement about the murder plot.
More news and a further investigation into the story are certainly warranted. As of today, I remain skeptical about the veracity of the attempted murder plot, as I curiously await more information.

The North African Revolutions: The End of an Era

The start of 2011 has been revolutionary in North Africa. Civil unrest exploded first in Tunisia, when demonstrators managed to oust long-time ruler, Ben Ali, after days of protests threatening to transform into a civil war. The people of Egypt followed. Following two weeks of clashes between thousands of civilian protesters in Cairo and elsewhere, and the Egyptian police and army forces, the Egyptian president, Mubarak, announced that he was stepping down. Libya followed: thousands of protesters invaded the streets of Tripoli and other major cities, demanding the abdication of power by Colonel Gaddafi, who has ruled Libya with an iron fist for 41 years. However, unlike in Tunisia and Egypt where police and army forces were unwilling to inflict serious damage on civilian protesters, eyewitness reports indicate that Gaddafi employed ruthless mercenaries to fire and shoot civilians. As of today, Gaddafi remains officially in power, although it appears that parts of eastern Libya have already fallen under the protesters' control.
The West has been cautiously supportive of these revolutions. All three of these rulers, Ben Ali, Mubarak and Gaddafi, had been supported by the West for various reasons, such as their renouncement of the Soviet philosophy during the Cold War, their willingness to trade in oil and other important commodities, their commitment to abide by nuclear non-proliferation regimes, and their importance in the geo-political equilibrium of the North African region. Thus, it was somewhat embarrassing for the Great Powers of the West to witness these revolutions, all rooted upon democratic principles which the western democracies embrace. The Great Powers were forced to applaud the revolutions, but remained cautious to abandon the dictators right away, fearing what such quick cutting of support might do to the regional stability. President Obama and Secretary of State Clinton urged Mubarak to step down, if his people no longer wished to have him as their leader. Similarly, they implored Qaddafi to leave peacefully - to no avail.
On March 1, the United Nations Security council voted unanimously to refer the Libyan situation to the International Criminal Court (ICC). In fact, the ICC, according to the referral, should investigate violations of international law by the Libyan security forces in their treatment of the civilian protesters. It is somewhat unsurprising that the Security Council so swiftly condemned Gaddafi. Qaddafi has been openly critical of the ICC, and was vocal in condemning the court's decision to issue an arrest warrant for the Sudanese president, Al-Bashir. Libya is not a member of the ICC, and has not been cooperating with the tribunal. Moreover, historically, Qaddafi has offended the west many times. He was the main culprit in the Lockerbie bombings, and sanctions that had been imposed on Libya were lifted only relatively recently, when Gaddafi accepted to cooperate in a nuclear non-proliferation program. Thus, it is hardly a surprise that western leaders would not support Qaddafi today, and that they would refer his alleged crimes to the ICC. We can only hope that Gaddafi will step down before inflicting more needless violence upon the Libyan population.
The three revolutions in North Africa are not isolated in the world. Unrest has recently been plaguing Bahrain, as well as Gabon. Other non-democratically ruled nations may follow. Similar to the fall of the Iron Curtain in 1990, now, 20 years later, we are witnessing another wave of revolutions against oppressive dictatorships and toward the idea of governance through democratic principles. Democracy has been prevailing and may turn out to be the only legitimate form of government in the 21st century.

The Southern Sudan to Vote on Secession: A Precedent-Setter or Sui Generis?

The people of Southern Sudan recently voted in a public referendum on whether they want to separate (secede) from the state of Sudan (click here for the full story: http://www.cleveland.com/world/index.ssf/2011/01/voters_in_southern_sudan_head.html). Sudan has been plagued by a bloody civil war for the last decade. The vote in a week-long referendum is the last step in a United States-backed peace plan. However, tensions and uncertainty remain. For one, the vote itself has been accompanied by reports of violence (click here for the full story: http://www.cbc.ca/world/story/2011/01/10/sudan-referendum-day2.html). More importantly, it is unclear how the Sudanese president, Omar al-Bashir, will react to the results of the referendum. Full results are not expected before February, and although al-Bashir has promised to allow the south to secede if the results of the referendum pointed toward that direction, it is unclear whetheral-Bashir will respect his word. After all, he has been indicted in the International Criminal Court (ICC) and has been accused of sponsoring violence in the southern region of Darfur, which has claimed the lives of thousands of Sudanese over the last several years. The south contains most of the country's oil reserves, and is an important natural resource to the Khartoum government. The civil war in Sudan has opposed the mostly Muslim Arab north and the Christian and animist south, with the north attempting to retain its control over the oil-rich south. Thus, despite al-Bashir's assurances to the contrary, it is uncertain that the northern government will respect its promise and allow the south to secede peacefully. According to the 2005 peace plan, if the south were to vote yes on the issue of secession, then the actual secession wouldn't take place until July 2011, and further negotiations may be needed to hash out issues like border lines, water rights, and the Sudanese overwhelming debt.
The Sudanese secession triggers important issues in international law and politics. Secession, although allowed under international law, remains frowned upon in practice. Examples of successful secession have been rare, excluding possibly the most recent example of Kosovo. In that case, the International Court of Justice even went as far as to proclaim that the Kosovar unilateral declaration of independence, leading to its secession from Serbia, was legal. Yet, the United States State Department, as well as several other governments, although supportive of Kosovo, have called its case sui generis, probably for fear of precedent-setting for future separatist groups. In fact, such groups in places as South Ossetia and Abkhazia have already relied upon the Kosovo precedent to claim secession rights. Significantly, countries which haven't recognized Kosovo as a new state virtually all have important separatist movements functioning within their borders and are too afraid to support even a sui generis Kosovo. Thus, what will the recent example of southern Sudan do for international law and the right to secession therein? Is Sudan sui generis like Kosovo, or is it a precedent for the idea that if a people's rights are abused by its mother state, it accrues the right to so-called external self-determination, leading toward remedial secession. If the people of southern Sudan deserve independence, should Tibetans, South Ossetians, and Abkhazians also get their own states? Should courts, scholars and politicians fully endorse the right to remedial secession in all such instances? Or, will the world witness a bunch of sui generis Kosovos and southern Sudans in the future, without any significant changes brought thereby to the international law of secession? I fear the latter, but as an academic support the former. And hope for a peaceful and precedent-setting secession of southern Sudan.

ICC to Investigate North Korea: A Step Toward International Justice

The prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, just announced that the court would investigate possible crimes committed by North Korea in its recent attacks on South Korea (click here to read the story: http://news.yahoo.com/s/ap/20101206/ap_on_re_eu/war_crimes_korea). The prosecutor's office is looking into the November 23 shelling of Yeonpyeong Island, as well as into the sinking of the South Korean warship, the Cheonan, in March of this year. Several people have died in both of these incidents, and the ICC is investigating possible war crimes and crimes against humanity committed by North Korea during these excursions against South Korea.
The ICC is the only permanent international criminal court in the world. It has jurisdiction over war crimes, crimes against humanity, and genocide (the crime of aggression may be added to the court's jurisdiction starting in 2017). Cases may be initiated at the ICC though a United Nations Security Council referral, through a member state referral, or sua sponte, by the prosecutor's office. The court can look at a case if either of two conditions is met: if the alleged crimes were committed on the territory of a member state, or if the accused is a national of a member state. The case against North Korea satisfies all the conditions of the court's jurisdiction: the alleged crimes fall within two of the three categories of crimes that the ICC can look into (war crimes and crimes against humanity); the case was initiated by Mr. Moreno-Ocampo's office; and the alleged crimes were committed in South Korea, a party to the ICC statute.
It is uncertain whether the court will proceed with this investigation. The ICC faces numerous political roadblocks and at times the ill will of one of the world's super powers, the United States. The initiation of a possible investigation into North Korea is a positive step for the court nonetheless. It demonstrates a willingness on behalf of the prosecutor's office to launch independent investigations, free of any Security Council influence and unaffected by any individual member state's referral. It signals to the world community the availability of this forum for prosecutions of international crimes, such as war crimes and crimes against humanity. Moreover, it sends a deterrent message to rogue countries and leaders that the ICC means business. This is a welcome development in the world of international criminal law - the world criminal court is accomplishing its mission and actively working toward its goals of world justice.

Omar Khadr Pleads Guilty: A Sad Day for Justice

Omar Khadr, the youngest detainee at Guantanamo Bay, has just plead guilty to murder, material support of terrorism, and other charges, bringing an end to his trial before the military commissions (click here to read the story: http://www.cnn.com/2010/US/10/26/khadr.statement/index.html). According to his guilty plea, Khadr, who was just 15 at the time, voluntarily and intentionally threw a grenade that killed a U.S. soldier in Afghanistan in 2002. Moreover, Khadr admitted to meeting Bin Laden, to training with other Al Qaeda operatives, and to engaging in terrorist acts against the United States. Of course, all of this is "true" only if we believe Khadr. And there are plenty of reasons not to.
Khadr was a child when arrested. Upon his arrest, he was held without charges and subjected to harsh treatment and endless interrogations. His statements, produced through such abusive interrogations, were admitted into evidence during Khadr's trial in the military commissions. Such statements, of course, would not be admissible in any civil or criminal trial in the United States, or in any other industrialized country using a "western" justice system. Such statements, on the contrary, are admissible in trials before the military commissions, under the infamous Military Commissions Act. Before the military commissions, Khadr faced an uncertain future, a long sentence and event the possibility of endless imprisonment (many detainees cleared of all charges before the commissions have been held indefinitely, under the United States government's argument that war prisoners can be held ad infinitum, or at least until the end of hostilities, or, in this case,the war on terror). Thus, when prosecutors presented him with a chance to plead guilty in exchange for a lenient sentence (most likely about 8 years) as well as a possibility to serve most of it in his home country of Canada, Khadr had no other alternative but to accept. He is 24 now; in 8 years, he will still have a chance for a normal life. And most likely, he cannot wait for a chance to leave the United States.
Who can blame him? Even if he did throw the grenade at American soldiers, which is dubious at best, under international law of armed conflict he should have been treated as a child soldier. Child soldiers do not face the same repercussions as adult soldiers, if caught by opposing forces. All international law authorities agree that child soldiers should be treated as victims of war, not as warriors. The United States government clearly missed this lesson of international law, when it chose to disregard all relevant rules, treat Khadr as an adult terrorist, and subject him to harsh treatment. Khard's Canadian lawyer, when interviewed by NPR journalists, expressed his sentiment that justice had not been served, and that the day of Khard's guilty plea was a sad one for justice. I could not agree any more. The imprisonment and trial of Omar Khadr did nothing but embarrass the United States and undermine our vision of justice before the rest of the world. The United States should fight terrorism, but it should do so within the bounds of international law and our own domestic legal system. It is time that Guantanamo be closed, detainees formally charged, if evidence permits it, and our federal courts used to prosecute those who threaten our country. Others, like Omar Khadr, who do not qualify for such prosecutions should be released. The desire to protect our country should never trump the interests of international justice and human rights.

The World Court's Decision in the Kosovo Case: Some Regrettable Ommissions

The International Court of Justice (ICJ) recently ruled that the unilateral declaration of independence by the government of Kosovo was in accordance with international law. The world court held that the declaration was not prohibited by general international law, or by any other specific sources of international law. Regrettably, the world court chose not to address the issue of remedial self-determination or secession under international law, an area of law in which guidance by the most supreme international judicial organ would have been of much value.
By way of background, the Kosovar government issued a declaration of independence on February 17, 2008. In fact, since the Rambouillet Accords of 1999, ending a three-month bombing campaign by NATO countries on the territory of the Former Republic of Yugoslavia, Kosovo had been governed by a United Nations Mission, and its security guarded by a NATO-led defense force. Negotiations between Kosovo and Serbia over the former's final status failed to produce a result, and in the beginning of 2008, the Kosovar government took matters into its own hands and proclaimed the province independent. Many states immediately recognized Kosovo as a new state, whereas many others refused to do so. On October 8, 2006, the United Nations General Assembly adopted a resolution to request the world court's advisory opinion on the issue.
It is laudable that the world court accepted jurisdiction on this difficult legal issue. In fact, the Kosovar government and its supporters had urged the court not to accept jurisdiction at all, as the request for an advisory opinion was political rather than legal, and as the Security Council had already been seized with other issues relating to Kosovo. The ICJ properly answered by accepting jurisdiction, and by rejecting these arguments.
However, it is regrettable that the ICJ refused to address the most relevant issue: when and under what circumstances do minority groups, or peoples, have the right to external self-determination, leading toward remedial secession? In particular, the world court could have taken up the opportunity to address, in the Kosovar context, whether the Kosovar declaration of independence serves the values and interests of the United Nations system, as well as those of the existing international legal order. Instead of answering these difficult questions, the ICJ suggests in this opinion that we live in a lawless world when it comes to declarations of independence, and that anything in this domain is permitted unless expressly prohibited by the Security Council. The rule of law and the elaboration of specific legal rules - even when none already exist- is the province of courts and judges, and the world court should not have shied away from its responsibilities in the international community. Possibly, the world court's willingness to accept jurisdiction in this instance signifies a shift whereby the world jurisdiction will in the future accept other similar cases on self-determination and secession. Possibly, the world court judges will decide to elaborate on legal standards governing these difficult issues.

Somali Pirates Sentenced to Five Years' Imprisonment in the Netherlands

A group of five Somali pirates received five year prison sentences after they were convicted for acts of piracy in a Dutch court (click here to read the story:http://www.cnn.com/2010/CRIME/06/17/pirates.convicted/index.html). The five pirates were originally detained by the Danish navy, after attacking a ship flying a Dutch flag; the Danish authorities quickly handed the pirates to the Dutch for prosecution purposes. The Dutch prosecution of pirates marks the first successful European trial of this sort. Another group of alleged Somali pirates is awaiting trial in Germany, and the French authorities have also brought some detained pirates back to France for trial. One pirate has plead guilty in an American court (the Southern District of New York) and is awaiting sentencing. Another group of pirates has been brought to an American district court in Virginia, where they will be tried later this year.

These kinds of domestic piracy trials represent one potentially successful prosecutional model for combating Somali piracy. Major maritime nations often have the resources available, and can logistically handle the prosecution of a Somali pirate. However, for political and strategic reasons, such nations have only shown interest in prosecuting pirates in domestic courts if and when pirates have attacked these nations' ships or hijacked these nations' nationals. When the maritime powers' national interest are threatened, they will extend their courts and apply their jurisdictional rule to cover acts of Somali piracy.

In the absence of direct attacks on major maritime nations, pirates have faced differing fates. Some pirates have simply been released, and have returned with impunity to their lucrative criminal livelihood. Others have been released on the high seas, with no food, water, or other supplies, and have thus faced an almost certain death sentence. Finally, some have been transferred to a regional partner, Kenya, for prosecution there. While some have argued that African courts provide a better solution for this African problem than European or American prosecutions do, many others have pointed toward problems with the Kenyan court system. For one, Kenyan procedural rules are imperfect and do not allow for more sophisticated evidentiary manoeuvres. Moreover, there have been allegations of the lack of adequate representation for the detained pirates. World powers have financially supported the Kenyan authorities in their detention and prosecution facilities, but have not provided any support for the legal defense regime. Thus, some pirates are unrepresented, and some have poor and inexperienced attorneys. Ultimately, some have called for the creation of an ad hoc regional piracy tribunal, which would handle all Somali piracy prosecutions. This solution appears attractive from a legal standpoint, but it lacks political backing by the world's great powers, and may be riddled with logistical and organizational hurdles.

One thing appears certain: the world powers have understood the dangers of Somali piracy, and have begun combating it with serious efforts. More coordination and cooperation may be needed in this endeavor, but a successful model may have been started and may provide a solid basis for the future.

Israel Raids Pro-Gaza Flotilla Ship: Unnecessary Violence In Violation of International Law

Early this morning, Israeli commandos raided a ship which was part of a pro-Gaza flotilla, carrying humanitarian aid to the Gaza strip and attempting generally to draw international attention to the situation in this troubled region (click here to read the story: http://www.latimes.com/news/la-fg-israel-clash-20100601,0,2990275.story?page=2&track=rss). In fact, since 2007, when Hamas leaders were elected into power in Gaza, Israel has engaged in an overall blockade of Gazan borders, provoking thereby a humanitarian crisis in this region. Moreover, in late 2008 and early 2009, Israel launched so-called Operation Cast Lead, a full-blown military offensive over Gaza, during which approximately 1300 citizens of Gaza were killed and many more wounded. The latest incident - the raid on a humanitarian ship- has sparked international outrage and has tarnished Israel's shaky world image.
The facts of the raid remain disputed, but it appears that early this morning, Israeli commandos boarded one of the flotilla ships, by being dropped off helicopters. Upon boarding, commandos were confronted by ship passengers - pro-Gaza activists and, by some accounts, a few members of the European Parliament. Israel claims that its commandos were attacked by ship passengers, and that they opened fire in self-defense, killing nine individuals on board. Ship passengers and activists claim that Israeli commandos began firing immediately upon boarding the ship, and that nobody on the ship was armed. What is unclear and unknown for now is why Israel chose to send commandos to board the ship. By all accounts, the ship was sailing in international waters, the so-called high seas, at the time of the raid. High seas are considered no-man's land in international law, and thus any ship may sail in such waters. The act of boarding or raiding a ship, which is what Israeli commandos did, is illegal under international law. Israel's claim of self-defense is unfounded: its commandos were aggressors to begin with, as they illegally boarded the flotilla ship. An aggressor cannot claim self-defense if he or she initiated the lethal fight.
The international community reacted swiftly to this incident. Turkey demanded that a meeting of the United Nations Security Council take place, to discuss the incident. Massive demonstrations took place in many countries, including Turkey, France, Iran, Egypt, among others. Many world leaders expressed outrage over the incident and demanded explanations from Israel. And Israeli prime minister canceled a scheduled visit to the United States, in the wake of the raid. It is strongly believed that the raid will chill the already frosty relations between the Obama administration and Israel.
Three things are certain. One, the raid called attention to the situation in Gaza, with many countries calling upon Israel to end its blockade and to allow for the passage of humanitarian aid into Gaza. Two, Israel's image around the globe has been further undermined. While most Israeli politicians publicly supported their government and justified the raid, some have expressed concern and have questioned the necessity of the raid. And many countries have upped their already existing critique of Israel. Three, Israel has violated international law by engaging in a raid on the high seas, and by using unnecessary lethal force against unarmed civilians. With more global attention on Israel, its leadership will hopefully understand that its foreign policy requires change, and that international law poses serious limits on countries' abilities to use force.

Serbia Uncovers Mass Grave: A Step Toward Recognizing Responsibility and Accountability

Serbia uncovered a large mass grave on its soil, thought to contain bodies of approximately 250 ethnic Albanians, killed during the 1998-99 civil war in Kosovo (click here to read the story: http://news.yahoo.com/s/afp/20100510/wl_afp/warcrimesserbiakosovo_20100510191459). It is presumed that then President Milosevic's forces moved the bodies from Kosovo to Serbia, to hide war crimes and deny that ethnic Albanians were being killed.
In ackonwledging this fact, Serbia today has shown that it is ready to face and accept responsibility for what happened in Kosovo. In fact, the mass grave, the third one to be discovered since the conflict in Kosovo, was found through a joint effort between Serbia's war crimes prosecution office, and EULEX, the EU mission in Kosovo. Human rights activists in Serbia believe that there may be more mass graves of this nature on Serbian soil, but everyone, including the independent Kosovar leadership, agrees that the Serbian willingness to acknowledge the grave is a positive step. The man who most likely ordered the cover up in the late 1990's, the then top police officer, Vlastimir Djordjevic, is now on trial at the Hague, at the ICTY, for alleged war crimes. And Serbia has been more actively cooperating with the ICTY, assuring this international tribunal that it is serious about true justice and accountability. Several hundred ethnic Albanians are still missing since the Kosovo war, and the uncovering of mass graves and the possible identification of victims may bring closure to families of those who disappeared. Moreover, such positive steps on behalf of the current Serbian leadership signal to the rest of the world that the country has changed, that it has moved on from the dark Milosevic era, and that it is ready to work with international authorities, as well as with neighboring states, on developing good relations for the future. In order to further bring closure to the Kosovar civil war, Serbia may want to consider establishing a truth and reconciliation commission, like South Africa. In the meantime, its war crimes prosecution office has been doing a fine job handling investigations and prosecuting those accused of the most heinous crimes. If Serbia wants to join Europe and to ensure that no more Milosevic's grab power within its territory, it must continue on this path of responsibility and justice.

11 Somali Pirates Brought to U.S. for Prosecution

11 suspected Somali pirates are being transferred to Virginia from East Africa, for prosecution in a American federal district court, for their alleged acts of piracy off the coast of Somalia (click here to read the story: http://www.cnn.com/2010/CRIME/04/22/pirates.us.prosecution/index.html) . In March of this year, 5 of the same individuals were involved in an attack on USS Nicholas, while 6 others were involved in an attack on USS Ashland in early April. The attacks were unsuccessful, and the suspected pirates were captured quickly thereafter by U.S. forces. After the capture, U.S. authorities decided to bring the pirates to the United States for prosecution - a move that is somewhat unprecedented. Pirate prosecutions are logistically difficult, costly, and politically unfavorable. Many have advocated the need to find an "African" solution for the African problem of piracy, thus arguing against domestic prosecutions in the United States. In fact, until now, only one suspected Somali pirate was transferred to the United States for prosecution. All other captured pirates were either released (a truly undesirable outcome!), or transferred to other countries. The United States has signed a Memorandum of Understanding (MOU) with Kenya, whereby Kenya accepted to prosecute suspected pirates captured by U.S. forces in the Indian Ocean. Thus, several pirates have been prosecuted in Kenya, and close to one hundred are currently detained and awaiting prosecution in Kenyan jails. In sum, until now, the United States had largely preferred not to open its courts for the purpose of Somali pirate prosecutions.
American stakes in the situation may have changed in light of the fact that American ships have been targeted by the Somali pirates. The first Somali pirate to be transferred to an American jurisdiction, mentioned above, was detained after an unsuccessful attack on a U.S. ship, USS Alabama, in April 2009. The 11 pirates currently being transferred to the U.S. were clearly involved in attacks on American ships. Jurisdictionally speaking, these prosecutions no longer entail the exercise of absolute universal jurisdiction - a situation where the prosecuting jurisdiction has no nexus to the crime or the perpetrators. Instead, these pirate prosecutions entail a case of territorial jurisdiction (to the extent that the U.S. ships attacked are considered American soil), passive personality jurisdiction (if U.S. victims are involved), or the protective principle (if U.S. interests are directly threatened by the pirates). Also, these prosecutions can be viewed as an exercise of modified universal jurisdiction - a situation where the crime itself, because of its atrocious nature, warrants the exercise of universal jurisdiction, but where the prosecuting jurisdiction actually has ties to the crime or its perpetrators. This fortified case of universal jurisdiction is politically more tenable and legally unquestionable.
The United States should however be prepared to exercise true universal jurisdiction and to prosecute suspected pirates, in those cases where pirates are captured after attacks on non-American ships. Such prosecutions would strengthen the law enforcement structure applicable to the Somali pirates and would significantly contribute to regional and global anti-piracy operations. Knowing that no pirates would be released after capture would send a potent deterrence message to pirates and could possibly entice other maritime nations to extend their domestic courts toward piracy prosecutions. Then, the world would stand a chance of winning the piracy wars.