Since President Barack Obama issued an Executive Order in January requiring the closure of the Guantanamo Bay Detention Center within a year, the debate about what to do with the detainees has been marked by much heat but little light. All that is about to change with the publication of the Report of a distinguished group of experts and associated articles appearing in the Winter 2009 issue of the Case Western Reserve Journal of International Law.

The 57-page report and associated articles were the product of a meeting with two-dozen high-level government and international organization officials, key officers of Non Governmental Organizations, and leading academicians, which was convened at Case Western Reserve University School of Law by the International Committee of the Red Cross and CWRU’s Frederick K. Cox International Law Center a year ago.

 

According to the Report, shutting down Guantanamo is a start, but it will not be a comprehensive solution to the question of security detention (detention without charges of persons deemed a threat to national security) for the United States and other countries. It is likely that security detention will continue to be utilized, though to a lesser extent and in different venues, by the new administration. Meanwhile, following the lead of the Bush administration, countries around the world continue to experiment with various security detention regimes.

The Report and the associated articles indicate that international standards need to be clarified, adopted, and implemented to ensure that detainees are afforded prompt legal process and a meaningful opportunity to challenge the facts giving rise to their detention before a neutral arbiter. Moreover, extended security detention should be considered legitimate only where there is evidence that the detainee himself poses a serious security threat, an issue that must be subject to periodic review; and the longer the detention the higher must be the evidentiary burden of the State.

The Report and articles are available for worldwide viewing on the Case Western Reserve Journal of International Law’s website http://www.case.edu/orgs/jil/

On December 4, 2008, Salem Chalibi and I led a discussion (moderated by Elizabeth Wilmshurst) at Chatham House in London about the post-Dujail trials before the Iraqi High Tribunal.  There have been five trials in all, three of which have concluded.   After Saddam’s execution, the international media stopped covering the trials, so that few people are aware that without Saddam as a defendant, the subsequent trials were conducted much more efficiently, without the chaos and theatrics that marked the earlier proceedings.  Nor have there been any more assassinations of trial participants or allegations of government attempts to remove judges or otherwise influence the proceedings.  Meanwhile, the subsequent trials have established some important precedents, in particular regarding application of the crime of genocide.   For the detailed summary of the Chatham House discussion of the subsequent trials, click on:  http://www.chathamhouse.org.uk/publications/papers/view/-/id/692/ .

View my op-ed published on JURIST Forum,  Legal Aspects of ‘Operation Cast Lead’ in Gaza, where I argue that while self-defense (in the classic model) is the legal basis for Israel’s “Operation Cast Lead” against Hamas, the Israel Defense Forces’ re-articulation of proportionality and collateral damage in that context is a new development in international law that carries significant risks.

Cross-posted on National Security Advisors.

The following article is posted from the JURIST-Forum, “A National Security Court: Restoring the Balance Between Security and Justice.”

Although I very much enjoyed reading Professor Leila Nadya Sadat’s recent JURIST Forum op-ed Restoring America’s Rights Record, I respectfully disagree with her observations regarding an alternative legal system to try terror suspects. In particular, I was struck by her characterization of such proposals as ‘rights denial’. With respect to my own proposal nothing could be further from the truth. Quite the opposite - my proposal is predicated on a rights-based solution to a problem requiring an immediate, legal answer. Rights denial? Absolutely not. Rights ensuring? Yes. Absolute rights? No. Workable, practical and legal solution to an enormous legal and practical conundrum? Absolutely.

Let me explain.

In advocating the establishment of domestic terror courts I am seeking both a legal and practical solution to the continued detention of thousands of “post 9/11 detainees”. My over-riding concern is for the rule of law and rights of detainees otherwise held, in essence, in indefinite detention. That has been the primary motivation for my proposal.

When I testified before the Senate Judiciary Committee (June, 2004) regarding my proposal I suggested that establishing a domestic terror court is the most effective way to begin trying thousands of detainees held by the United States directly or indirectly world-wide. I suggest that the term “GITMO” is misleading. Guantanamo Bay is but one detention facility; what about the detainees held in Abu Ghraib, Bagram and Camp Buco? What about detainees held elsewhere in the world either by or on behalf of the US? What about future detainees?

In other words, GITMO must be viewed as a term of art referring to thousands of detainees with an unknown number potentially held in the future. While I suggest there is no “war on terrorism” (an unfortunate and inaccurate term), active and engaged operational counter-terrorism (what has been referred to as “armed conflict short of war”) will directly lead to the continued detention of thousands of individuals. That is the reality of terrorism and counterterrorism. My proposal is in response to that continued and perhaps never-ending reality.

In developing a “rights-based” alternative legal regime I recommend that “where” individuals suspected of involvement in terrorism be tried is but one piece of the puzzle. That puzzle is comprised of three legs: how and when to detainee, how to interrogate and how and where to try. Looking forward: With respect to detention-an individual can be detained only if he is “caught in the act” or if there is reliable, valid and valid intelligence information with respect to his involvement in terrorism. “Round up the usual suspect” and guilt by the association are unconstitutional. They are also enormously problematic from an operational perspective. With respect to interrogations, according to my proposal individuals detained for suspicion of involvement in terrorism will be granted Miranda rights. They will also not be subject to torture no matter what offense they are suspected of. Torture is illegal, immoral and does not lead to actionable intelligence.

As to where to try the detainees. I suggest that the military commissions are an unworkable solution. Similarly, a suggested international treaty based terror court is presently unfeasible given a fundamental disagreement by the international community to agree on a definition of terrorism. That leaves two solutions-Article III courts and domestic terror courts.

The fundamental differences between Article III courts and my proposed domestic terror court is with respect to the introduction of classified intelligence information in camera and bench, rather than jury, trials. With respect to the former, the defendant’s 8th Amendment right to confront his accuser will be balanced with the State’s absolute requirement to protect intelligence sources. Is this problematic? It most certainly is; of that, there is no doubt. However, it is critical to emphasize that this exception will only be implemented in those cases where the available criminal evidence is insufficient for conviction. In other words, if the prosecutor is convinced that conviction does not require intelligence information the case will be solely based on criminal evidence therefore preserving the defendant’s right to confront. However, in those cases where the criminal evidence is insufficient the domestic terror court paradigm will enable introduction of classified information.

The judge, in such occurrences, will “wear” two hats-that of judge and that of defense counsel. Furthermore, the judge will proactively seek to de-classify otherwise classified information thereby enabling the defendant to cross examine his accuser. While this will not be possible in all cases, the judges “mandate” is to minimize those cases where classified information is introduced. While this is not a “perfect solution” it seeks to balance between two powerful competing interests by suggesting a workable solution.

With respect to bench, rather than jury trials I suggest that convening thousands of American citizens to sit as a “jury of peers” of suspected terrorists and expecting them to understand enormously complicated intelligence information and not be fearful of “jury intimidation” is an all but impractical solution. Not only logistically (in the words of the former President of the Israel Supreme Court, Aharon Barak, “the logistic considerations of the executive must not serve as a barrier to the freedom of the individual”) but legally from the perspective of protecting the detainee-defendants rights. Bench trials-in my proposal by a re-structured FISA Court-with appeal to the US Court of Appeals would far more effectively preserve and protect the rights of the detainee than jury trials. Trial by jury of thousands of detainees will undoubtedly be inordinately slower than bench trials thereby continuing to deny the defendant basic judicial rights.

That will be the true and continuing “rights denial” Prof Sadat suggests in her commentary.

I do agree with Prof Sadat that a discussion on this topic must be held and quickly so for the existing paradigm is unworkable. The debate regarding this question must be robust and candid. It must include policy and decision makers, academics, members of the Bar, civil rights organizations and the public. The over-riding principle is respect for the rule of law with an understanding that balancing between the legitimate rights of the individual with the equally legitimate national security rights of the state is the essence of a democracy.

Cross posted on National Security Advisors

View my essay, Military Commissions and National Security Courts after Guantanamo, Northwestern Law Review, Colloquy, 2008, written in response to Gregory S. McNeal’s article, Beyond Guantanamo, Obstacles and Options.

Abstract:

In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States.  While various terms have been used to label detainees including “enemy combatant,” “illegal belligerent,” and “enemy belligerent,” all fail to define the rights such individuals should be granted.  Admittedly, this process has been made more difficult by a continued inability–perhaps unwillingness– to define the conflict in a consistent manner.  Is this a war? Is this a “war on terror”? Is this police action?  Considering this definitional uncertainty, the critical question becomes where to appropriately try these detainees–how to try these individuals while protecting classified intelligence and also maintaining individual rights.

In this essay, I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather they are a “hybrid” of both.  To that end, I recommend that the appropriate term for post 9/11 detainees is “individuals suspected of involvement in terrorism.”  This definition adopts aspects of both the prisoner of war and criminal law paradigms, thereby creating what I have called a “hybrid paradigm.”  The hybrid paradigm seeks to balance–or maximize–the legitimate rights of the individual with the equally legitimate national security rights of the state.  Furthermore, it seeks to move beyond the amorphousness that has defined much of the debate over the last seven years.

To try these individuals, I suggest a hybrid “domestic terror court” that would allow for an in camera review of confidential intelligence information presented by the prosecutor and a representative of the intelligence services.  A properly constituted domestic terror court–comprised of judges schooled in understanding intelligence reports and intelligence gathering procedures, and aware of the necessity of preserving constitutional rights–is the proper starting point in moving forward with post 9/11 terrorist prosecutions.  The proposed hybrid paradigm will ensure both the state’s obligations to keep intelligence and matters of national security confidential as well as the defendant’s right to a fair trial.

Cross-posted in National Security Advisors.

View an op-ed I co-wrote with Dan Barr of Perkins Coie Brown & Bain published Nov. 8 in the Arizona Republic, “Anticipatory Self-Defense Key to Terror Fight.”

In applying “lessons learned” from previous examples of anticipatory self-defense, we recommend that the executive branches’ ability to engage in anticipatory self-defense be subject to criteria-based external authorization.

Cross posted on National Security Advisors.

This analyis was prepared by the Public International Law & Policy Group

 

The arguments surrounding the recent Application for an Issuance of an Arrest Warrant by the Prosecutor of the International Criminal Court for President Al Bashir of Sudan for crimes against humanity and genocide demonstrate the prevalence of myths regarding the role of justice in the peace process.  In anticipation of a ruling on the Application for the Issuance of an Arrest Warrant for Al Bashir[1] (the Application) some within the international community asserted that the Application will both inflame violence and undermine efforts to negotiate a peaceful resolution of the Sudan conflict.  Further, several common objections to the Application perpetuate procedural myths about the process of securing an arrest warrant as well as the jurisdiction of the International Criminal Court (ICC).  Four of the myths created by these arguments regarding the role of justice in the peace process in Darfur are discussed below.

 

Myth #1: The Application for the Issuance of an Arrest Warrant is Based on Ten Pages of Evidence.

 

Reality: The Ten Page Application Is a Summary of the Evidence That was Presented to a Panel of Three Judges.

 

Prior to seeking the Issuance of an Arrest Warrant, the ICC Prosecutor collected evidence from 105 missions in eighteen different states.  This evidence included eyewitness and victim statements, interviews of Sudanese officials, reports from both the United Nations’ (UN) Commission of Inquiry and the Sudanese National Commission of Inquiry, as well as materials from open sources.  This evidence was made available to the three-judge panel of the ICC Pre-Trial Chamber.  The ten-page document ultimately submitted represents only a summary of the evidence collected.

 

After the Prosecutor’s Application, a three-judge panel reviews the evidence presented to determine if it is sufficient to issue an arrest warrant.  Since 2003, Prosecutor Moreno-Ocampo has filed twelve applications for the Issuance of an Arrest Warrant, all of which have been accepted and issued by the panel of judges. 

 

Myth #2: The ICC Does Not Have Clear Jurisdiction in Sudan.

 

Reality: The UN Charter, UN Security Council Resolution 1593, and the Treaty Bringing the ICC Into Force All Provide a Clear Jurisdictional Basis for ICC Involvement in Sudan.

 

The statute of the International Criminal Court (ICC) provides that it may exercise jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes, and crimes of aggression if, “[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”[2]

 

On March 31, 2005, the UN Security Council adopted resolution 1593 referring the situation in Sudan to the ICC.  The resolution formally decides, “to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.”[3]  This resolution, adopted under Chapter VII of the UN Charter, is binding on all member states of the UN – including Sudan.  

 

The ICC statute provides for complementarity, which allows states to retain jurisdiction over genocide, war crimes, and crimes against humanity unless the state is unwilling or unable to genuinely investigate or prosecute alleged crimes.[4]  In the situation of Sudan, the ICC sanctioned the Issuance of an Arrest Warrant for several Sudanese citizens located in Sudan.  To date, the Sudanese government has refused to comply with the arrest warrants, and has not considered appropriate domestic mechanisms.  In fact, Mr. Ahmed Haroun, who is sought by the ICC for war crimes and crimes against humanity allegedly committed in Darfur, currently holds the position of Minister of State for Humanitarian Affairs and is responsible for delivering humanitarian aid to Darfur. 

 

The ICC has a clear jurisdictional mandate for action in Sudan.  The Sudanese government has remained unwilling to genuinely investigate and prosecute alleged international crimes occurring in Darfur.  As a result of this inaction the UN Security Council referred the situation of Darfur to the ICC.  The power of the UN Security Council to issue such a referral is established in the Rome Statute and is binding on all states, including Sudan. 

 

Myth #3: The ICC Undermines the Sovereignty of African States.

 

Reality: The Treaty Establishing the ICC Was Signed by 106 States, Including Thirty African States.  Three of the Four Matters Currently Before the Court Were Referred by African States.

 

Thirty African states, including Kenya, Chad, Senegal, South Africa, Nigeria, Uganda, and Liberia have ratified the statute of the ICC.  In August, President Museveni of Uganda, declared that he does not “condemn” the Application, and believes that ignoring Al Bashir’s criminal liability simply because he is president would “be ignoring the right of the victims.”[5]

 

The ICC has investigations in several states in Africa at the request of the African governments.  The government of the Democratic Republic of Congo, the government of Uganda, and the government of the Central African Republic have all requested that the Prosecutor of the ICC investigate alleged crimes occurring in their states. As a result, the ICC agreed to assume jurisdiction in the following instances.  In the Democratic Republic of the Congo, the ICC assumed jurisdiction to investigate whether crimes had been committed within the country by paramilitary organizations.  The ICC assumed jurisdiction in Uganda when the Government requested the prosecutor to investigate the Lord’s Resistance Army’s actions in Uganda.  The Government of the Central African Republic also requested the Prosecutor investigate whether crimes had been committed on its territory.  These African governments support the ICC action in their respective countries.  

 

While the government of Sudan did not itself refer the action to the ICC in a manner similar to other African states, the ICC assumed jurisdiction over the conflict in Darfur after the UN Security Council, under the authority granted to it by Article 13(b) of the Rome Statute, referred the situation to the ICC in 2005.  This form of jurisdiction is clearly articulated in the Statute.  Further, this request has been strongly supported by many citizens of Sudan such as Darfuri victims, as well as by African civil society organizations, and by some African governments.  In recent weeks the Omdas (Darfuri leaders) of the Goz-Amir refugee camp in Chad, which shelters more than 19,000 Darfuri refugees,[6] sent a letter to the ICC voicing their support of the Prosector’s Application and called for his “immediate” arrest.[7]  A poll conducted by the Arab television station Al-Jazeera TV found that fifty-two percent of Arab respondents “support having their leaders face international justice” mechanisms like the ICC.[8]  Darfuri rebel groups, unsurprisingly, also support the Application.[9]  As noted above, Ugandan President Museveni recently recognized the rights of victims in Darfur.[10]

 

With three African states already referring matters to the ICC for resolution, as well as the support of some African governments and many civil society organizations for the ICC, the ICC does not unjustifiably undermine the sovereignty of Sudan.  Rather, the ICC and this Application enforces the rights of African citizens and victims of the Darfur conflict.

 

Myth #4: The Issuance of an Arrest Warrant for Al Bashir will Lead to More Violence in Darfur.

 

Reality: Though the Violence in Darfur may Continue, It Is Not Clearly Caused by the Issuance of an Arrest Warrant.

 

As explained by the Minister of Foreign Affairs of The Netherlands, even though there is a risk to increased violence, there cannot be a lasting peace in Sudan without justice.[11]  The introduction of justice may change the dynamic so that the peace process is taken more seriously by Sudan.  Dr. Paul Williams has argued, “The indictment of Bashir and Sudan is actually a positive step in the peace process, because it will clarify the nature of the conflict.”[12]  John Prendergrast of Enough agrees saying, “The status quo in Sudan is one of the deadliest in the world.  Until there is a consequence for the commission of genocide, it will continue.  This action introduces a cost, finally, into the equation.”[13] 

 

There may be continuing or even increased violence in Darfur, and those who oppose the Application will likely point to that violence as a vindication of their view; however, such an argument does nothing to advance the interests of peace.  Attacks against civilians, refugees, and peacekeepers continue in Darfur after more than five years of violence.  In response to the Application, some officials in Al Bashir’s Government threatened increased violence, particularly directed at peacekeepers and humanitarian aide workers.[14]  Such attacks on peacekeepers may be war crimes under the Rome Statute.  Al Bashir recently suggested he could expel the UNAMID force if he is indicted.[15]  These assertions by the government of Sudan demonstrate clear hostility to the peace process in Darfur and contempt for the international community’s desire to end the conflict in Darfur.  In no domestic jurisdiction could a government official assert that efforts to prosecute suspected criminals should be curtailed because they may lead to increased violence from those suspects.  The global community cannot accept a similar argument from the critics of international justice. 

 

Proponents of the Application argue that it may actually “advance the interests of peace” because “the increased pressure now placed on the [National Congress Party] governing regime will lead it to take long overdue steps to cease all violence, implement genuine and credible measures to resolve the Darfur crisis—including allowing the full and effective deployment of the UNAMID peacekeeping force—and fully carry out its side of the bargain to implement the North-South Comprehensive Peace Agreement (CPA).”[16]  Media outlets recently quoted Sudanese Foreign Minister, Deng Alor as saying, “Everything short of the presidency is on the table,” which implies that the Government of Sudan may finally be willing to hand over the two Sudanese officials previously indicted by the ICC.[17] 

 

In the wake of the Application, the Government of Sudan also reportedly began to use domestic courts to investigate crimes in Darfur.  In August, the Sudanese Justice Minister appointed an investigator to examine the crimes in Darfur,[18] and the Government of Sudan has established committees to support the Justice Minister’s mandate.[19]  The Special Investigator recently confirmed he is investigating Ali Kushayb, who has been previously indicted by the ICC for war crimes.[20]  While the Government may be using these mechanisms in a purely political effort to placate the ICC, it nevertheless represents movement on the Darfur peace process thereby possibly breaking the years of status quo. 

 

Statements and actions by the Government of Sudan in the wake of the Application suggest that the Application may promote justice as well as peace, despite continued threats of violence.  Indeed, some analysts suggest that the Application may force the Sudanese Government to negotiate because it created a situation that may be “beyond the political and diplomatic capacity of the government.”[21]

 

 

About the Public International Law & Policy Group

 

The Public International Law & Policy Group, a 2005 Nobel Peace Prize nominee, is a non-profit organization, which operates as a global pro bono law firm providing free legal assistance to states and governments involved in peace negotiations, drafting post-conflict constitutions, and prosecuting war criminals.  To facilitate the utilization of this legal assistance, PILPG also provides policy formulation advice and training on matters related to conflict resolution.  The Public International Law & Policy Group has advised the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, The Special Court for Sierra Leone, and the Iraqi Special Tribunal; states in peace processes including the Anuak, Bosnia and Herzegovina, Kosovo, and Darfur rebel movements, as well as key leaders of the Darfur Diaspora affected by the conflict.

 

 

 

The Guardian is reporting today that the UK, France, China and Russia will be asking the UN Security Council to adopt a resolution blocking the International Criminal Court from continuing the effort to prosecute Sudanese President al-Bashir for Genocide in Darfur.  See:

http://www.guardian.co.uk/world/2008/sep/14/sudan.humanrights

The United States has not yet decided whether to support such a resolution, and as a Permanent Member of the Council (and the first country to label the situation in Darfur as genocide) it could exercise its veto, thereby allowing the International Criminal Court arrest warrant to issue without political interference.

It will be absolutely tragic if the United States and the other members of the Security Council give in to al-Bashir’s blackmail, adopting a resolution ordering the ICC to defer its prosecution of the indicted genocidaire and war criminal in return for his pledge to cooperate with the UN and OAU.  If history has taught us anything, it is that the international community cannot rely on indicted war criminals to serve as reliable guarantors of peace.  Like Slobodan Milosevic, Radavan Karadzic, and Charles Taylor, al-Bashir cannot be trusted to follow through with his pledges of cooperation.  Al-Bashir has and will continue to direct a genocidal policy while under  the pretense of cooperation.  Nothing will actually be gained by quashing the ICC indictment, and so much will be lost.

A Security Council resolution ordering the ICC to defer its prosecution of al-Bashir would be a serious blow to the  credibility and legitimacy of the ICC and the growing trend toward international accountability.  It will return the world to a cynical age in which future warlords, parroting Hitler’s  infamous words about the Armenians, will be able to say to their followers, “Who after all today remembers the fate of the Darfurians.”   

Where should the line be drawn between “just war” and “war crime”?  That is the question at the heart of the upcoming day-long AIDP American National Section’s annual conference at Case Western Reserve University School of Law on Friday, September 26.

The conference features two dozen of the world’s foremost experts in this area, including: President of the International Criminal Court Assembly of State Parties Christian Wenaweser; Former Nuremberg Prosecutors Henry King and Ben Ferencz; Former Deputy Legal Adviser, UK Foreign Ministry (who resigned over the invasion of Iraq), Elizabeth Wilmshurst;  Former U.S. Ambassador at Large for War Crimes Issues David Scheffer; Former Chair of the ICC Statute Drafting Committee Cherif Bassiouni; Executive Director of the International Bar Association Mark Ellis; Former Commissioner of the Sierra Leone Truth Commission Bill Schabas; and academic experts from, Austria, Canada, Germany, Ireland, Liechtenstein, New Zealand and the United States.

The Conference, and an Experts Meeting the following day, is designed to advance the work of the International Criminal Court Assembly of State Parties Working Group on the Crime of Aggression, and the report of the Experts Meeting, along with the articles generated from the conference, will be published in the spring 2009 issue of the Case Western Journal of International Law.

The September 26 Conference is free and open to the public, and complementary lunch is provided if you register in advance.  In addition, 7.0 hours of CLE credit is available ($200 fee).   For a schedule of events and on line registration, please visit:  http://law.case.edu/lectures.  If you can’t make it to Case for the conference next week, you can view the proceedings live (or at any time) via webcast at that same URL.

The Conference is co-sponsored by the American Society of International Law, International Bar Association, International Association of Penal Law, International Law Association, the Planethood Foundation, the Robert H. Jackson Center, the Maltz Museum of Jewish Heritage, and the Wolf Family Foundation.