Dreadful post coitum in the backstage of power (2)

Dominique Strauss-Kahn VS. Nafissatou Diallo: A case of Comparative Law

A media event on the threshold of the American Criminal Procedure

A brilliant career, stunning accusation · © CNN

Reality is a hard nut to crack.
Dominique Strauss-Kahn is a major figure who has friends who may be sincere in their affection, no matter how often crossbred with ulterior political motives. Whenever a person is accused of something incredibly serious, his relatives have the natural reflex to refuse to believe that it is just possible.

The first instinct is to protect, to rush to help, sometimes awkwardly, like that wife who thought helping her husband accused of robbery and who found nothing better to say at the bar of the criminal court: « Murderer maybe, but a thief, surely not! »

Clumsy reactions, not to say completely ill-advised have been held. Most of those who did so have retracted or expressed their regrets by realizing the nonsense of their arguments.

It is not herein about demonstrating the guilt or innocence of the IMF’s managing director. No more than trying to prove a hypothetical plot, in one way or another, but to describe and explain the criminal proceedings which he is subject to understand what is happening and what will happen. Note that I do not pretend to be a lawyer practicing in New York and I beg more eminent experts than me to forgive my probable errors and approximations, and I will correct the post if required.

The U.S. procedure, a much more balanced system than the French feedback might suggest.
Let us briefly recall the facts: DSK is charged of having appeared suddenly naked, facing a maid who had entered the room thinking it was cleared out, to put it back in order. After closing and locking the door, DSK would have intended to force her for oral sex, he would have tried to take off her clothes in order to go further, but she managed to escape. The police arrived, reportedly found that he had left the scene, forgetting one of his (seven) mobile phones, and tracked him down in the list of passengers on an Air France flight to Paris.

He was arrested onboard by the Port Authority of New York and New Jersey – the local Border Police – and delivered to the NYPD, the Special Victims Unit to be precise.

In the United States like in England, police have broad powers of inquiry and initiative in investigations. Unlike France, where the prosecutor leads the investigation and gives instructions to the police – which are in fact orders –, the district attorney discovers the records when the police bring them together with the suspect. For some serious cases, police officers may have an advisory role, stating the evidence that the DA needs to go further on prosecution. Both authorities are more separated in the U.S. than in France.

The arrest may take place without an arrest warrant in two cases: the crime takes place in the presence of the police officer or if the officer has sufficient evidence to arrest the person (sufficient grounds). In general, a home arrest requires a judge to issue an arrest warrant.

The first stage is booking and it is held at the police station. Fingerprinting, photo identification, judicial collect of criminal record (in New York it is called NYSID report or rap sheet. The person under suspicion may be questioned but he has the right to remain silent (which will never be retained for the prosecution against him unlike in French law). He may be assisted by a lawyer who has the right to intervene during interrogations (the Paris prosecutor shivers in terror at this perspective). The police officer in charge of the case (usually the first on scene) prepares a report – the criminal complaint— which is the basis for prosecution.

Less serious facts give rise quickly to release from custody with straight summons by the judge (Desk Appearance Ticket, DAT). Here we are facing a felony – on top of the scale of gravity, not DAT, but submission to a judge. This arrest should be as brief as possible. The law provides for a period of 48 hours in case of arrest a weekend away, but this rule does not apply in NYC, where hearings are held 365 days a year (from 9:00 a.m. to 1:00 a.m.). In this matter, DSK agreed that such hearing which could take place on Sunday – as ‘New York city’s justice doesn’t sleep’— might be postponed to allow achieving DNA testing.

Once the booking is completed, the suspect is escorted to the Court Building, the competent court (here, in the case of felonies, the New York City Criminal Court, but only for the preliminary phase). It was there that DSK was featured on May 16: his memorable walking out under the flashes, that most French journalists published by asking if they could do it, and his transfer from police station to Criminal Court.

There, the police officer handling the case – and/or the complainant – is received by a substitute (Deputy District Attorney, DDA) who decides whether to prosecute or not. The DDA does NOT speak to the suspect, since in the United States, they have realized quite a long time ago that he is the opposing party (in France, there is hope it finally occurs all along the XXII century). If DDA considers the record substantial, he should formalize a ‘written complaint’, i.e. the official complaint of public prosecution.

The suspect is then brought before a judge for a hearing called the arraignment. The judge notifies the suspect of charges against him (a copy is delivered to him), of his right to counsel (he must be assisted, if necessary by a court-appointed lawyer at the arraignment), he is entitled to a preliminary hearing (in the case of a felony as it happens to DSK). He will not be asked at this stage whether he pleads guilty or not guilty, only in cases of misdemeanors and minor offenses, the equivalent in France of ‘délit’ and ‘contravention’ (but the suspect is entitled to give it up and, if need be, to plead guilty before the Criminal Court, this option is already ruled out by DSK’s lawyers).

The judge may decide to immediately stop the proceedings if he believes that the offense is not clearly established (case dismissed, French’s ‘affaire classée’)). With regard to alleged felonies against DSK, the indictment is incumbent on the Grand Jury.

The judge will then decide what happens to DSK until the Grand Jury decides. He can be released on his promise of appear spontaneously (Released on his Own Recognizance, ROR), released on bail or exceptionally remanded –i.e. arrested up to 120 hours until the Grand Jury has ruled or a Preliminary Hearing is held if the suspect, who is now the defendant, asks for it; but the prosecution does not bet on it usually).

The essential difference between Preliminary Hearing and Grand Jury is that the former is public and is held in the presence of the defendant while the Grand Jury meets closed-doors in the presence of the sole District Attorney and witnesses brought to testify.

The Grand Jury is composed of 23 people (a quorum of 16 people is required for it to decide). It outlines the evidences gathered and deliberates and it either votes a true bill – 12 jurors at least consider that there is prima facie, and then the case goes to trial (indictment) – or a no bill – i.e. no trial, then the case is dismissed.

In case of indictment by the Grand Jury, a new arraignment hearing is held before the Superior Court competent to try crimes (felonies), here the New York Supreme Court. Thus began the preparatory stage: the parties may negotiate a plea bargaining, ie, a guilty plea, where they have 45 days to submit petitions (motions) to be settled before the trial, eg to exclude illegally obtained evidence, or direct certain actions. Once these motions considered, a trial date is set. The trial shall be public, and judged by a jury who votes only over the conviction. The penalty, under the sole judge’s domain, is ruled at a subsequent hearing.

Finally there are 3 qualifications retained at this point: criminal sexual act, attempted rape, unlawful imprisonment. The penalty system is somewhat complex. Crimes are divided into categories AI, A-II. B. C, D and E. DSK appears to fall into the category B, so a maximum of 25 years imprisonment and a minimum of 1 to 8 years (Criminal Code of New York State. art. 70).

Dreadful post coitum in the backstage of power (1)

Dominique Strauss-Kahn vs. Nafissatou Diallo: A case of Comparative Law

On the eve of the hearing to be held June 6, throughout Dominique Strauss-Kahn will have to plead guilty or not guilty on the seven charges against him, it seems appropriate to analyze the situation – and report progress – from the perspective of comparative law. To be precise, if DSK pleads guilty, there will be no trial but a conviction to several years in prison, whose number will be negotiated with the judge. If he pleads not guilty – as his lawyers have suggested – a trial will take place.

From crime disguised as vaudeville to presumption of innocence

DSK was the favorite candidate for the French presidential elections of 2012

Falling of an idol. After two breathless weeks of one of the most spectacular cases in French politics, with hearings filmed, suspense, shocking images, conspiracy theories – will this century experience a significant event without its conspiracy theory? – and of course sex – which means outselling–, the excitement will drop, so to speak, and a media relief will be imposed from necessity.

But the jurist loves nothing more than the calm and serenity, which are propitious to reflection.

In hindsight, 15 days later, it is clear that the omnipresence of this case in the timeliness will inevitably recess. « At last! » some masochists might say – the same ones who are sick of this case but who still read this article.

Dominique Strauss-Kahn has been released (but is very closely supervised) and I am delighted, beyond any consideration, of his eventual guilt. Everyone expects to be released until their trial, as detention must be truly exceptional. This is not the case in France. This principle is best applied in the U.S. than in France, especially in criminal cases. Not to mention that before 2000 in the French criminal procedure, before a criminal court, the accused was free until he would necessarily become a prisoner on the eve of the hearing.

The conditions under which this freedom has been granted (a deposit of one million dollars, in addition to a 5 million warranty executed if Dominique Strauss-Kahn does not attend the hearing; prohibition from leaving NYC where he ought to live in a CCTV apartment, an armed guard at the door entrance, waged by the accused himself; a permanent electronic tracer anklet… anything at his expense) have prompted comments on Justice of richest (the accused had to raise $ 6 million and spend about $ 200,000 a month to ensure his own 24-hour monitoring). One thing must be understood.

Though a person who’s well off can probably – and in the U.S. probably more than anywhere else among the democratic countries with an independent judiciary – easily put the necessary resources to ensure his defense and will necessarily be much better defended than a person that may not do so, at this point it was not the New York justice who imposed stringent conditions for releasing DSK. It was the DSK defense who proposed what is called a lease package made of reinforced concrete: the defense came with such a turnkey probation, saying « That’s what we propose.» Basically, the judge just alleged: «Okay, I’m fine with this. » Defense brought out the (very) heavy artillery, for it knew that the prosecutor’s office (District Attorney, DA) would do everything possible to keep this very big fish in the fishpond of Rikers Island. Being elected, the NY prosecutor (in contrast to French judges who are appointed by the President of the Republic on proposal of the Minister of Justice, and the opinion of the Supreme Council of Magistracy; if someone could point it out to some know-it-all, thank you) has everything to gain by showing that he’s severe with the powerful, especially if this powerful is an alien. The prosecutor’s office has pushed to the limits the Polanski precedent: the flight risk (under French law, one talks about « lack of guarantees of representation »), stressing that the accused was arrested on an airplane when he was getting ready to leave the territory. The defense did expect this and anticipated correctly: it showed the ticket purchased before the facts occurred and came up with a proposal that no judge would probably have dared to require since it is costly and burdensome. Add to this the argument that the IMF Managing Director may be considered an honorable man, and the decision has been taken away…

Now begins a period that in French law would be called « pretrial » –understand « making the case ready for trial. » Indeed, U.S. law in general and New York in particular ignores the criminal enquiry conducted by a judge, specific to the Anglo-American inquisitorial system. It is an accusatory system, where the Judge is at a retreat – on a temporary basis – and acts as arbitrator.

A clarification: the Anglo-American accusatory system has never meant that it was on the accused to prove his innocence. It does not preclude the innocentation scheme, but the inquisitorial system, where Justice leads the investigation and keeps the bulk of the initiatives. The systems are not incompatible: in France, civil proceedings are accusatory, while criminal procedure is inquisitorial, with accusatory parties (such as the procedure before the trial chamber). Both parties – and I mean both parties because under U.S. law the complainant is not a party to criminal proceedings – will present their motions to the judge who will decide essentially on the admissibility of an evidence a party wants to produce and which the other does not want to hear about (Let’s say if a DNA test charges the defendant but the chain of custody was broken, meaning that at some point the integrity of the sample was not preserved with certainty -if  the sample has been forgotten in the police officer car at night, so as that could allow its contamination or its replacement- the Judge will exclude this evidence and the prosecution may not fall back on it). They have 45 days to do so. The hearings will be held in the Office of the Judge without publicity so the jury is not aware of these elements. If the DA had fled the information that a DNA test was rejected the defense may request a mistrial, (which is) to consider that the right of the defendant to a fair trial was irreparably damaged and that case should be permanently dismissed. And for those wondering, if it was the defense that was the source of the leak this would allow the DA to make a point of mentioning before the jury. Proceedings are not messy…

To sum up,at the end of the day,  until the trial begins the case will be prepared secretly, without further hearing or videoed suspense. So goodbye, hilarious scenes of special correspondents from the courthouse live from New York, less well informed about what is happening than journalists in Paris who have access to Twitter. I will miss it.

I have heard the optimistic statements of a DSK’s lawyer, Mr. Benjamin Brafman. I must confess my astonishment. Such statements, even cautious are not common in general and it is a first for this lawyer who has now a lot to loose in the event of a guilty plea or of a conviction. I can only speculate that he has a wild card up the sleeve to be so affirmative.

This leads me naturally to the presumption of innocence. In short, it is primarily a rule of evidence (it is up the prosecution to prove the guilt) to which French law added a protection matter of reputation: it is forbidden to make a person being subject of an investigation or prosecution as guilty until he has not been finally convicted. It is not easy (enough), even a lawyer like President Sarkozy cracks up regularly.

Respect for the presumption of innocence is then both a fundamental principle of trial, a pillar of the rule of law – listed by the Declaration of the Rights of Man and of the Citizen, Article 9, since this assumption was far from obvious in 1789 – and a rule limiting freedom of expression.

So to avoid torturing Language, let us clarify concepts so far. Talking about Dominique Strauss-Kahn as a suspect or indicted or accused is entirely correct. Legally speaking, the most accurate perception at this stage is ‘defendant’ since the indictment has been delivered by the Grand Jury. To designate him as « rapist » would undermine the presumption of innocence. But designate him as « alleged rapist » is cumbersome, inelegant and imprecise – as the implicit concept, probably inspired by presumption of innocence, has a sense of « Who is supposed by hypothesis or conjecture. » The opposite of what we mean actually. An alleged rapist is not a presumed innocent.

Where the auditor risks headache is when the victim becomes in turn alleged. Lord! If the rapist is presumed innocent, the victim is an alleged liar? No, of course not, she’s just downgraded to alleged victim category. This makes a lot of suspects, presumed and alleged, isn’t that so?

The French word for « alleged victim » (‘victime présumée’) is « complaining » (‘plaignant’). The concept of « victim » which etymologically refers to the religious as it refers to what is offered in sacrifice to the gods (‘victima’ in Latin) is legally adequate once the crime is established or after conviction. In short, the term victim is inconsistent with presumption of innocence.

This leads me to my second assessment (next week), namely, the French perception of the U.S. procedure –which often forgets the U.S. context and aims to exonerate the alleged abuse of power while forgetting the alleged victim.

Libya, the international community and the responsibility to protect

The situation in Libya requires the international community to get involved early. In such cases, the problem of sovereignty must give way to the responsibility to protect. The international community cannot accept that the government of Muammar el-Qaddafi keeps on insisting that these are facts that relate only to Libyan domestic policy, then to be managed in terms of domestic policy.

The international community’s response must be fast, firm and effective. The history of Rwanda in 1994, Srebrenica and Darfur does not allow us to be very optimistic about the effectiveness of the international community when responding to emergency situations. But we must try it. A special meeting on Libya took place at the Human Rights Council in Geneva on Friday February 25. The next day, the Security Council of United Nations met in New York in this regard. This last resort has ultimately a role and in particular the International Criminal Court – once the ICC is entitled to act at the request of the executive organ of the UN.

The fact that the Security Council of United Nations recognizes that the Libyan issue is of its concern, portends a significant point. At most if the Council just requested the ICC to take hand in the matter. Libya is not a State Party to the Rome Statute (1). Conversely, the Security Council can always promote preliminary investigations: in the case of Darfur, the Council established an investigation committee headed by Italian jurist Antonio Cassese (2). The work of the commission allowed the ICC to be aware and to have jurisdiction on the atrocities committed in the Darfur region.

Such a committee would be useful in elucidating the events in Libya and would be a quick reaction faster to materialize in situ. Its presence and implementation would largely stem the state of violence and abuses that run on the ground at the moment. There are precedents.

So, can the UN act effectively? What can be done?

Both much and little. Because the United Nations are States. The ones that might be fully involved and committed. There has been progress lately, yet the UN machine still remains slow-moving today. The Security Council meets permanently and the Human Rights Council can be in session urgently. Obviously a watchdog having a streamlined executive resolving power would be more effective, but the reality of the current international relations does not allow a real quick response in dealing with such concerns.

Since Monday 28 February, the Human Rights Council shall be meeting for 3 weeks. Surely Libya shall be at the center of the debate. Last Friday, during the Council special session, while the Libyan seat remained empty in the morning, the second secretary at the Libyan embassy in the UN announced in the afternoon, amidst loud applause, that from that moment the Libyan delegation in Geneva represented « the free people of Libya. »

________

(1)  The treaty that established the International Criminal Court (ICC). Adopted in Rome on July 17, 1998, and that 139 countries have now ratified.

(2) Antonio Cassese was the first President of the International Criminal Court for the Former Yugoslavia. He is Professor of International Law at the University of Florence and Editor in Chief of the Journal of International Criminal Justice

Related Posts:

· The ‘Responsibility to Protect’ in the spotlight

Convention against Enforced Disappearances comes finally into force

On 23rd December 2010, almost four years after its adoption by the General Assembly of the United Nations, the International Convention for the Protection of All Persons from Enforced Disappearance eventually reached the 20th ratification by Iraq which was necessary for its entry into force. Later on Brazil also ratified this treaty, which the Convention enters into force with 21 member states.

“This is an historical date”, said Mary Aileen D. Bacalso Chair of the Asian Federation Against Disappearances (AFAD) and focal person of the ICAED (1), which gathers associations of families of the disappeared together with human rights NGOs.

“The Convention represents by itself an achievement of associations of relatives of disappeared people and NGOs from all over the world. Its adoption was first requested by families of victims of disappeared people from Latin America, back in the eighties. It took more than 30 years to the international community to adopt this legal tool, which fills an immense and intolerable gap: the lack of an international treaty to prevent and suppress enforced disappearance. Contrary to what many people think, enforced disappearance is not a practice of the past nor is it limited to a few regions of the world. All the continents have experienced or are experiencing this criminal practice. People are disappearing in many parts of the world. In such light, the Convention will be an effective tool for the international community in its struggle against this scourge”.

Everyone remembers the mothers of Plaza de Mayo whose we’re still hearing about today. In the late 70′s they paraded on the main square in Buenos Aires at the worst moment of the Argentine dictatorship, when thousands of people disappeared. They brandished pictures of their sons, their daughters by asking “¿Dónde están?” (“Where are they?”)

It is these and other organizations of families of the disappeared who rally together in support of this convention to stop these practices. Olivier de Frouville (2), member of the UN Committee on Enforced Disappearances:

“This is the culmination of a long and arduous process that began in the late ’70s with the action of the families of the disappeared in Latin America next to United Nations to first identify the practice of enforced disappearances as such and achieve (…) bannishing them. “

For several months, 19 states had already ratified the convention. All was needed was one more country to sign so the treaty comes into force. Iraq was the 20th country that ratified this international treaty and consequently it allowed the instrument coming into force December 23, 2010. Besides, according to Olivier Frouville:

“There are undoubtedly pressures, but also the interest of the new Iraqi regime (…) to shed light on violations of human rights that took place during the former regime (of Saddam Hussein). “

Iraq is indeed one of the countries where it was found the highest number of disappearances. The Committee on Enforced Disappearances has identified that country as a one with the largest number of cases reported and demonstrated.

Neither China nor Russia nor the United States have ratified the Convention. In contrast, many Latin American countries have done so. Some African countries like Senegal, Burkina Faso, Mali and Nigeria, as well. Very few Asian and very few European countries. It’s a shame. Especially since the disappearances involve European countries: they have affected them in the past, especially through the colonial wars, and they still affect them through practices related to the fight against terrorism, particularly secret detentions and extraordinary renditions that are practiced by the United States with the complicity of a number of European countries.

The Convention provides for the right not to be subjected to enforced disappearance as well as the right for the relatives of the disappeared persons to know the truth. The Convention contains several provisions concerning prevention, investigation and sanctioning of this crime, as well as the rights of victims and their relatives and the wrongful removal of children born during their captivity. The Convention further sets forth the obligation of international cooperation, both in the suppression of the practice and in dealing with humanitarian aspects related to the crime. The Convention establishes a Committee on Enforced Disappearances, which will be charged with important and innovative functions of monitoring and protection at the international level.

Enforced disappearance is considered a continuing crime. Families of victims can now use this convention to require that light be shed on the fate of their missing.

________________

(1) International coalition against Enforced Disappearances

(2) Olivier de Frouville is professor of law at the University of Montpellier 1 and member of the Academy of European Law of Human Rights.

The seamy side of American diplomacy and China’s true face

The Wikileaks list seems interminable. American diplomats spy on the United Nations Secretary General and on other senior UN officials, to the extent of learning their credit card numbers. The Gulf monarchies are pressing Washington to start a war against Tehran before Iran becomes a nuclear power and brings them to their knees. Turkey’s moderate Islamist government faces continued resistance from secular army officers, and a secret Islamist plan is feared. Beijing orders a cyber-attack on Google at the end of 2009, while planning to ditch its long-time Stalinist ally in North Korea in return for hegemony over a unified Korean peninsula. Pakistan discreetly supports terrorist groups, while its nuclear arsenal grows. To do business in Morocco you have to pass on a cut to the royal house, which maintains its army in a deplorable state. Saudi Arabia is the main source of financing for Islamist terrorism.

The list extends to every continent. The emotional stability of the president of Argentina, Cristina Fernández de Kirchner, is a worry to many; when her husband was alive she passed official business on to him. Cuban-Venezuelan relations are so close that Cuban spies operate freely on Venezuelan soil. The Cubans also treated the Bolivian president for a serious nose tumor. The German coalition government is limping along due to the chancellor’s timid, reserved personality. The French president, the most pro-American since De Gaulle, has a despotic streak. The Spanish prosecutor’s office played a questionable role in the inquiry into torture at Guantánamo…

Further material may yet emerge from the State Department papers, which renowned newspapers (1) have been publishing having had access to the massive leak mounted by the Wikileaks organization. Significantly, its founder is wanted by Interpol, and his website is being boycotted by servers and service providers.

The publication of the diplomatic cables has stirred international opinion and surprised some governments, who often adduce false arguments to downplay or discredit this news bomb. The security of individual sources has been assured by eliminating names and data that might endanger them. The media that have published the revelations have acted within the limits sketched out by the US Supreme Court in the Pentagon Papers case (2), opting for freedom of information and the citizen’s right to know.

There is no historical precedent for this in term of scope, as it affects so many conflicts throughout the world. The revelations show a seamy side of the political world, about which we all had well-grounded suspicions, but no clear certainty. We are, in a sense, freer now than we were before.

China shows its true face.

If the Chinese government was hoping to snuff out the international repercussions of yesterday’s presentation in Oslo of the Nobel Peace Prize to the dissident Liu Xiaobo, the results of its attempt turned out quite differently. The Beijing regime sentenced him to 11 years in prison as a deterrent to all other dissidents, as has been revealed by the US State Department cables by WikiLeaks. And once Liu Xiaobo had been designated a Nobel winner, China managed to reduce the numbers of foreign state representatives at the ceremony after a forceful campaign of diplomatic threats, at the risk of exposing the limitations of the country’s political system in full view.

All this, added to the campaign of slander and harassment against the Nobel winner, his family and friends, seriously damages China’s international reputation.

The status of emerging power has turned China into an inescapable force in the world. With this award for Liu, Beijing had the chance to prolong the current situation in which all the leading powers, with the United States at the forefront, choose to minimize their demands in terms of human rights given the necessity of reaching understanding with a country considered so crucial to the shaping of the world’s future. After such a display of bad temper on the part of Beijing, maintaining the delicate balance somewhere between cynicism and realism becomes that much harder.

Among the steps it has taken in reaction to the Norwegian committee’s decision, China decided to create an alternative to the Nobel, the Confucius Peace Prize. The aim of this distinction is to reinforce the singularity of China’s attitude toward internationally accepted principles, such as the need to respect human rights and political and civil liberties.

China to award Confucius peace prize

This is yet another mistake. The reasoning behind the Confucius Prize is identical to that which is employed by other authoritarian regimes when they are denounced for human rights violations. China is therefore aligning itself with such nations.

Dealing with the situation created by China with its reaction to the Nobel for Liu Xiaobo will not be an easy task for the international community. Cynicism and realism cannot be so easily combined from now on. And in the same way that China has been forced to show its true face, so too now must all the governments which maintain an ever-more intense relationship with the emerging power.

So, does traditional diplomacy have any contemporary relevance yet?

Related posts:
Should we be afraid of China?
WikiLeaks reveals essentials of the ‘dirty war’ in Iraq

_____________________

(1) WikiLeaks turned over all of the classified U.S. State Department cables it obtained to Le Monde in France, El Pais in Spain, The Guardian in Britain and Der Spiegel in Germany. The Guardian shared the material with The New York Times, and the five news organizations have worked together to plan the timing of their reports.

(2) The Pentagon Papers was a top-secret United States Department of Defense history of the United States’ political-military involvement in Vietnam from 1945 to 1967. The papers were first brought to the attention of the public on the front page of the New York Times in 1971. A 1996 article in the New York Times said that the Pentagon Papers “demonstrated, among other things, that the Johnson Administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance”. In the summer of 1971, David Ellsberg, a Harvard graduate and former Marine, brought out 7,000 pages of secret notes on the war in Vietnam. The Nixon administration had no mercy with Ellsberg, spied him, harassed him, attacked him. Ellsberg won his trial in 1973. Also did The New York Times — which published excerpts of the Pentagon Papers.
New York Times Co. v. United States, 403 U.S. 713 (1971), was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.
President Richard Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press, guaranteed by the First Amendment, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. The Supreme Court ruled that the First Amendment did protect the right of the New York Times’ to print the materials.

Aung San Suu Kyi faces her destiny

Freed at present, the Burmese opponent seems to be bound hand and foot. According to the international press, it is far too early to declare victory.

Aung San Suu Kyi even released and celebrated by activists of her party, remains the bete noire of the military regime in Burma. (Soe Than Win / AFP)

Aung San Suu Kyi, released Saturday after seven years under house arrest in a minute-by-minute operation described by the Guardian, has come back to work Monday morning at her party’s headquarters, the National League for Democracy (NLD officially dissolved by the junta). Sunday, Burmese dissident had held her first political speech since 2003. Burma’s Nobel peace laureate (1991) has called on the opposition to merge, telling her supporters that she would take time to listen to her fellow citizens before deciding on a strategy. Because we know that for the past fifteen years, her leeway against the military junta in power is narrow actually.

“So what is her political future?” seems wondering the Bangkok Post in its editorial: If she wants to launch a protest movement and “challenge her enemies in the new government, she needs to urgently consolidate the opposition forces. Now that the new political landscape in which Burma becomes a little more civilianised is providing the rightful context for Mrs Suu Kyi to play a role, she must take this opportunity to work with numerous factions in the opposition and the ethnic minorities. But it will not be an easy task.”  Because of her long years under house arrest, Mrs Suu Kyi has little experience political dealings: “She has never directly participated in politics and has been idolised as the icon of democracy and the face of Burma’s struggle against dictatorship. Her angelic image has sustained the anti-military junta movements inside and outside Burma.” But this isolation “has come at a heavy price. It has made her more “divine”, thus separating her from the political reality.”

Her party singularly lacks of activists who can make the link between pro-democracy personalities and the electorate base. Thus, she is exposed to a threat: “she will be locked in a subtle, yet intensifying, competition among opposition forces. The continued fragmentation of the opposition would in turn strengthen the power interests of the new regime.” For the exile journal The Irrawaddy, these personalities may even try to sabotage her return to politics [...]. The battle that awaits opponent is complex: “how to rebuild and reinvent herself in the new Burmese political environment?”

Besides, Libération asks: “Freedom, so what?”, pointing that Mrs Aung San Suu Kyi “will have to learn again to know her country” where, as “female symbol” in the words of La Repubblica. “Daughter of the hero of independence, General Aung San, [she] is the bête noire of the military junta,” brings Radio Canada. And it will not probably be enough that the Lady of Rangoon calls Burma’s generals for dialogue “, writes Le Devoir in Montreal. “Behind this joy oh so legitimate,” says L’Express, emerge “power relations which remain very tense.”

This “icon of freedom can do nothing against the junta. Her freedom is a sham. Her release is a [marketing] operation. By maintaining the suspense until the last minute, the Burmese junta has made a huge publicity for the event, ensuring the headlines of international media.” (Slate). Anyway, the military do not think much of the international opinion, even if they may have calculated that her release overshadow the electoral masquerade. In addition, Mrs. Suu Kyi is weak enough to be kept away from public life.

Same analysis backed by Eurotopics: “The main concern of the generals who have ruled the country for 50 years is an end to the unpleasant foreign sanctions.”And above all, “the junta wants to test whether the opposition is strong and whether it can manage to divide it into those who play along with the new parliament’s game and those who could potentially be isolated. But this game of poker is an unequal contest, for the generals can imprison the freshly released dissident whenever they want.”

If The New York Times called it junta’s latest “ruse” and FrankFurter Allgemeine “a gift in exchange for her political abstinence”, El País says she has “hands cut off,” that is to say, she is literally muzzled in a context where it is still far “from the darkness to the light.” Even so, if the opponent said on Sunday (Le Soir, in Brussels), “she would be willing to meet General Than Shwe, the junta’s strongman,” we know well that he “royally hates her [...] and is similarly reluctant to pronounce her name.”

Dialogue is not looking promising…. The New Light of Myanmar, the dictatorship official press organ, indeed barely mentions the events of the weekend.

Related Posts:
· A Shout to Nothing
· The Burmese Junta Steps Back from Aung San Suu Kyi’s Unconditional Release

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Lament for a woman and frivolity of the chorus of nations

“They’ll kill me for being a woman in a country that can do what it wants with women” (Sakineh Ashtiani)

We knew they were going to kill her. When the government of Iran announced it had halted the stoning, the Nobel Prize Shirin Ebadi said: “I do not trust them. They’ll execute her.” And so it was; the Iranian regime confirmed she wouldn’t be stoned, just  hanged. Given that Sakineh Ashtiani was asking not to be stoned in front of their children, the ruling is a step forward.

Of course the regime has assembled a legal corpus to sustain the conviction, but the chronicle of tragedy gives us a measure of the devious perversity of this tyranny. Sakineh is an Iranian Azeri of Azerbaijan hardly speaking Persian. When sentenced to death, she did not even understand the Arabic word used by the Iranian penal code for stoning: Rajam. Her jailers told her she had been sentenced to die under the rocks. Throughout the process, her lawyer was persecuted, harassed and  prevented from being with Sakineh and finally, after many risks for his family, he was able to flee from Iran. Five hours on foot through the mountains and the rest on horseback, to get Turkey, where Amnesty International helped him to obtain asylum in Norway.

In an interview with Bernard-Henry Levy, Sakineh’s lawyer Mohammad Mostafaei defined her as follows: “she’s just a woman, a simple woman, just a woman.” The court that sentenced her to death found no evidence at all, but three out of the five members were radical clerics that condemned her, through their “intimate conviction”, as an adulteress. As Sakineh said: “they will kill me for being a woman in a country that believes it can do what it wants with women.” After an international campaign to save her life, the system charged her with murder (and forced her to confess). Everything else is well known. Gallows will be her fate.

In the prison in Tabriz, two more women await stoning. Azar Baghri is 24 years old, 10 of which in prison. Married at 14, she was accused of adultery and since then she’s waiting to be stoned. For fun, her jailers have done two stoning shams. Maryam Ghobaranzadeh, 25, dreams only to be hanged instead of stoned. She was 6 months pregnant and forced to abort … In Iran women are considered sexually mature at the age of 9 and can therefore be married and adulterous. Nobody knows how many have been stoned to death without having been made it public. The courageous Iranian dissidence speaks of many.

I know this article will not have any effect, just a shout. But it serves at least as a reminder that not everyone is accomplice to the silence which Iran is covering its crimes. This silence is resounding in Europe, not in vain we are not interested in unprofitable victims: Iran does not fit into the phobias of political correctness. Nor its victims. Many countries, organizations or individuals are accomplices to the barbarism that characterizes the government in that country — a country of ancient culture, now led by a pack of male fanatics. The same government of macho fanatics who criticized the U.S. during the 9th session of the UPR in Geneva on 5 November!

By the way, what about Teresa Lewis, the woman mentally retarded who was put to death last October in Virginia? Isn’t there as well a deafening silence? (See the article by Anna North Is Teresa Lewis’s Execution A Gender Issue?)

The very problem is that there is no real respect for women, neither in our western latitudes, nor in many Arab countries where women have their rights, their freedom, their dignity, violated –just for being women.

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U.S. faces criticism from HR abusers at Universal Periodic Review

The detention center at Guantanamo, the death penalty or the non-ratification of treaties deserved strong criticism to the United States on Friday in Geneva at the UPR 9th session (1st to 12th November 2010). For the first time, the U.S. administration backed its record on human rights at the UN.

The UPR is a Council’s major innovation. The Human Rights Council was born in 2006 from the ashes of the Commission on Human Rights – which was criticized for its inability to enforce the fundamental values of the UN. The Council allows the systematic and regular review of the situation on Human Rights in all 192 UN member countries in order to avoid the accusation of selectivity.

Friday 5 November, The United States upheld its record on human rights before the UNHRC – under intense criticism, particularly concerning the detention center at Guantanamo, the death penalty or the non-ratification of treaties.

Opening the meeting, Esther Brimmer, the U.S. Assistant Secretary for International Organization Affairs, assured that the Universal Periodic Review (UPR) – that the United States faces for the first time before its peers – “represents a milestone in our long commitment to promote human rights.”

Another senior official of the substantial U.S. delegation in Geneva, Michael H. Posner, Assistant Secretary of State for Democracy, Human Rights, and Labor, focused on ongoing improving health systems and education.

“We’re not satisfied with the status quo. We will continue to improve our laws,” he said.

Being the first country to confront the U.S., Cuba requested the end of “the blockade against Cuba,” which it described as a “crime of genocide”– and the release of five Cuban activists in US custody considered “prisoners of war” by Havana.

Venezuela went further, calling on Washington to ratify the UN conventions even now unsigned, to close the U.S. base at Guantanamo, to abolish the death penalty and reduce emissions of greenhouse gases, among others.

Iran condemned the U.S. and expressed its deep concern over the “extensive and systematic violation [of human rights] by the U.S. government at both national and international levels.”

China expressed concern over “gaps” in U.S. law preventing full protection of human rights and the failure of the U.S. to ratify all human rights treaties. It expressly condemned the tendency toward “excessive use of force” by U.S. law enforcement and widespread discrimination against minorities and immigrants.

Russia congratulated the Obama Administration for efforts taken to eliminate “some of the most odious violations of human rights which were committed in the war on terrorism” and bring those responsible for torture in secret detention centers and Guantanamo to justice and pay compensation to the victims. It also demanded that the U.S. prohibit the death penalty.

Several countries have denounced the conditions of migrants in the United States, including Brazil, which has appealed  “to consider alternatives” to their detention.

The audacity of some of the aforementioned countries in accusing the U.S. of human rights violations is stunning. While the U.S. is not perfect, it is as respectful and observant of human rights as any state sitting on the HRC and far superior to these countries that perpetrate serious, widespread violations of human rights daily. But to hear comments during the UPR, one would think that the U.S. was the worst human rights abuser on the planet.

Related Posts:
· Universal Periodic Review, A Lukewarm Success
· The United States and the Human Rights Council

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Bitter Balance for International Justice

Conclusions from a leading expert on issues of impunity in conflicts (1)

Raymond Depardon · Rwanda. Kigali. 5000 prisoners are crowded together in a former Belgian prison, waiting to be tried for the genocide of 1994. © Magnum

At the time of ethnic cleansing, the international criminal justice is an excellent opportunity to fight against impunity in many societies. But ICJ is also accused of being politically manipulated. This virulent controversy suffers a gap that is now partly filled: a comprehensive factual analysis on the impact of international justice which shows that only 1% of war criminals are indicted by the International Justice. It is not the least of paradoxes that the law professor Cherif Bassiouni, who has dedicated his life to fight against impunity that leads to this result, after conducting an extensive survey involving hundreds of specialists from around the world for two years.

After scrutinizing mechanisms to fight against impunity in place between 1945 and 2007 in the 313 conflicts identified who made a hundred million deaths, the report highlights how, in the past 60 years, impunity remained the rule rather than the exception: 823 war criminals were indicted  in all by international or hybrid tribunals since 1993, most of which were for crimes committed in the former Yugoslavia (about 320), the Timor-Leste (400) and Rwanda (79), for an average cost of 10 million francs per case.

We knew that international justice was expensive and was not intended to charge mass, but rather to charge cases of examples. The facts bear this out. These results are yet to be analyzed carefully, because they conceal as much as they reveal. If, for example, the conflict in Liberia has caused tens of thousands of victims and that impunity was the rule, the fact remains that Charles Taylor’s indictment, arrest and trial before the PCG Special Court for Sierra Leone, has enabled the Sierra Leone’s society to initiate a return to stability. Therefore, the effectiveness of an indictment can not be measured only in quantitative terms. Furthermore, as stated in Christopher Mullins’ contribution (2), 55% of conflicts have given rise to various measures relating to justice in the broadest sense, whatever the issues are essentially national trials, memorialization processes or purge laws.

Regarding truth commissions and investigating committees, the report has enumerated fifty only, despite the high profile given to some of them, particularly the one led by Desmond Tutu in South Africa – The Truth and Reconciliation Commission (TRC). Also the survey brings to light that only in 16 out of 313 conflicts, victims have received reparations.

But the most shocking figure is the changing ratio of military into civilian casualties in the space of a century: during the First World War, civilians “only” accounted for “only” half of the victims, while the percentage jumped to 90% at the end of the twentieth century. There is a disturbing transformation of the nature of conflicts. And that perhaps gives even more meaning to the need to prosecute the most serious crimes.

Since 1945, over the 100 of millions of deaths, Asia paid the highest price (46 million), followed by Europe (25 million), Africa (15 million), the Arab world (6 million) and Americas (less than 3 million).

Faced with the reality of almost total impunity for war criminals, Cherif Bassiouni stresses the need for a holistic approach in the treatment of serious violations of human rights. It is interesting to note that the debate in the late 1990′s between proponents of trial and proponents of truth commissions is now obsolete. Given the proliferation of internal conflicts and weakening of states, the two schools come together now to use both judicial and extra-judicial means for mobilizing traditional and/or innovative instruments in the crime management.

That is what Louis Joinet – UN special rapporteur for the fight against impunity in the 1990s – had conceptualized when he established the four pillars (right to the truth, right to justice, right to reparations and right to security) intended to strengthen the reconciliation process. But in the same way that politics is a performance art, post-conflict justice is a perilous exercise, forced to take into account what is just and what is possible – in other words, the combination of the ethics of conviction and ethics of responsibility.

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(1) Cherif Bassiouni (ed.), The Pursuit of International Criminal Justice: A Study on World Conflicts, Victimization, and Post-Conflict Justice, 2 volumes, Intersentia.

(2) Christopher Mullins, We Are Going to Rape You and Taste Tutsi Women: Rape During the 1994 Rwandan Genocide, British Journal of Criminology  Volume:49  Issue:6  Dated:November 2009

Garzon, an ‘inconvenient’ judge, now sitting in the dock

It seems that some people do their best to keep the impunity of crime during the Spanish Civil War and the Franco’s dictatorship: the 1977 amnesty law is outdated as it comes into contradiction with the regulatory offence of ‘crimes against humanity’, which is not prescribed under any circumstances – this is one of the principles of universal justice, one of the pillars of universal jurisdiction and a basic principle of comparative law.

The celebrated Spanish magistrate Baltasar Garzon will be judged for trying to dig into the dirty past of Franco’s regime. On receiving complaints by far right-wing organizations, the Spanish Supreme Court has decided to sit the magistrate in the dock for “misfeasance”.

“Aware of his lack of jurisdiction and that the crimes reported lacked penal relevance when the proceedings began, (Garzon) built a contrived argument to justify his control of the proceedings he initiated,” Luciano Varela – an investigating magistrate on the Supreme Court – said in the ruling.

The decision should result in a quick-fix suspension of Baltasar Garzon from the Audiencia Nacional, the Spanish high criminal court in Madrid that centralizes the issues on terrorism, crimes against humanity and organized crime.

Baltasar Garzon, 54, is accused of having set up a “legal subterfuge” to open an investigation regarding the missing persons during the Spanish Civil War (1936-1939) and general Franco’s regime (1939-1975), ignoring a general amnesty law passed in 1977 by the Spanish Parliament, two years after the death of dictator Francisco Franco. Facing the hard opposition from prosecutor Luciano Varela, Garzon had to abandon the investigation in late 2008.

Considering he had “deliberately ignored” the amnesty law that prevented him to take jurisdiction for the investigation, Luciano Varela refused in early February to close a complaint against Judge Garzon. Garzon’s counsel Gonzalo Martínez-Fresneda, when questioned by the online edition of El Pais, said he would appeal judge Varela’s decision.

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A sad day for Justice
“It’s a sad day for justice,” assured Emilio Silva in the Spanish broadcast corporation. He is the spokesman for the Association for the Recovery of Historical Memory, the leading association of families of victims of Franco. “Relatives from 113 000 missing people cannot find a place for justice to be done anywhere in this country,” said Silva. “If this trial takes place, this will be the first known case of a judge who tries to get the truth, justice and reparation for more than 100 000 people disappeared and finds himself pursued,” declared Esteban Beltran the Spain Director for Amnesty International.

More than two hundred organizations defending human rights and jurists all around the world, including former prosecutor of the International Criminal Tribunal for the Former Yugoslavia as for Rwanda, Mrs. Carla del Ponte, recently signed a petition supporting Judge Garzon. They remind that the UN Committee on Human Rights requested Spain in 2008 to revoke the post-Franco amnesty law and “to guarantee the imprescriptibility of crimes against humanity”. “Enforced disappearances” which focused Garzon’s investigation are crimes “that cannot be prescribed or amnestied,” they stated.

Enforced disappearances are among the gravest crimes which cannot be prescribed nor be granted with amnesty without attempting against international law, which is part of the Spanish judicial system.

The crime of illegal detention, without giving information of the detainee’s location, or the crime of enforced disappearances, are crimes of continuous nature, that are ongoing until it is known what happened to the victims; that is why these crimes cannot be object of criminal prescription. When these disappearances have been committed in a systematic, massive and generalized manner, as it occurred during the Civil War and Franco’s dictatorship, they are considered as crimes against humanity and hence cannot be subject of amnesty nor pardon. For this type of crimes, the principle of non-retroactivity in criminal law cannot apply since the prohibition of such crimes already existed under international customary law (jus cogens) at the time of the facts and, the principle of legality, is formed by national provisions and international human rights law.
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An atypical magistrate
As pioneer and advocate of “universal justice”, Judge Garzon had gained worldwide recognition by securing the arrest of former Chilean dictator Augusto Pinochet in London in 1998. This atypical magistrate has cornered the armed Basque separatist organization ETA for more than twenty years.

Accused by Spanish conservatives of harboring grudges and seeking the media limelight with his pursuit of high-profile cases, but also as a result of his investigations, Garzon have brought down wrath, both from the very conservative Spanish Judiciary and from the much corrupted Spanish political class (and not only conservatives). If we add the fact that Spanish judiciary is the only non-democratic power in the country with unchanged structures from the dictatorship, now handled by the extreme right… an explosive cocktail is served.

For your information, Judge Garzon is targeted as well by complaints in two other cases: one for the fees he received for lectures in the United States in 2005-2006, the other for his supposed “partiality” in the investigation he has started on the Gürtel corruption scandal that currently splashes the Spanish right .

The Spanish parliament put an end to universal jurisdiction last October 2009 when it approved a bill that narrows the role of the country’s judges in prosecuting crimes committed in other countries.

Sources: Harvard Law Review, Human Rights Quarterly, FIDH, NY Times, Le Monde, El País

Related Posts:

>> The Spanish Law of Universal Jurisdiction, now in Brackets?

>> International lawyers support the Garzon’s cause against Franco’s regime

>> Who Wants Judge Garzon’s Head on a Platter?

>> No todo el monte es orégano (Spanish)

Should we be afraid of China?

>> Haga click aquí para la versión en Castellano

China Town by Bala ©

Inexorably, despite global protests, China goes on with colonization of Tibet. Inexorably China enters the African continent as well by cooperating with countries such as Zimbabwe or Sudan, which West considers beyond the pale. China, which economic dynamism is impressive, helped derail the climate summit in Copenhagen. Because of its energy needs China proved a reliable ally for Iran, despite its aggressive and repressive threat of programmed access to nuclear weapons. Deaf to international pressure, the Chinese government has put to death Amal Shaikh, a British citizen convicted of drug trafficking and suffering from severe mental disorders. Confronted with the former British colonial power, PRC has made it a matter of sovereignty. On Christmas Day, the intellectual dissident Liu Xiaobo was sentenced to eleven years in prison for circulating a petition favorable to democracy. We could go on but we better stop the list here and ask the question: is China dangerous?
China is stronger, more powerful and influential and for that reason the peculiarity of its governance is becoming more visible to our eyes. But China has never been so dangerous for the Chinese than during the Great Leap and in the Cultural Revolution – that is when we were not familiar enough with PRC. Paradoxically, and despite the excesses warned above, there is an even worse and extremely painful point which affects the provocative way China treats the issues on human rights: there are no softer and more peaceful dissident than Liu Xiaobo in his efforts to improve human rights status; just as the Gao Xiaosheng’s evaporation last year. Gao Xiaosheng is a pro human rights lawyer who took on defending victims of earthquake in Xishuang: The Chinese Foreign Affairs spokeswoman, interviewed by foreign journalists on the question where was Gao Xiaosheng last year, replied simply: « He is where he should be » – which represents a denial of rights, even by Chinese standards. These types of harm have always existed but today their impact is amplified.

In addition, there was always a militant Chinese presence in Africa, competing with Taiwan and the USSR, but the means and economic issues are now at a completely different scale, even worse. Think of the Chinese diaspora of more than one million people living in Africa – and not only in Zimbabwe or Sudan. The Chinese method of governance calls ours into question because it is awfully efficient and we Westerners are demoralized by the Chinese resourceful success. The effect of democracy devitalization that follows is even more dangerous because it removes from the Chinese scenario the perspective of improvement on freedoms situation in the short term. There is furthermore its projection capability abroad and the fact that China gives a global dimension to its economic interests – interests that affect the West: oil, Iran, tolerance to nuclear North Korea.
To what extent is China potentially aggressive? By reason of its nationalism exacerbation and the non-compliance to international standards? Think about the repeated humiliations to European leaders – the latest was Gordon Brown’s concern for the execution of British citizen, mentally handicapped, Shaikh Amal.

China has become the world’s largest exporter, the main workshop, the major laboratory, the key farm and the World’s Bank. It takes place in the concert of nations without respecting the rules of the game. So, must we be afraid of China? Is it not an unfair and premature conclusion?

The example of its development is totally new: An asymmetric society whose Leninist system of governance coexists with wilderness capitalism. The emergence of an illiberal capitalism – a non-democratic capitalism – disturbs economists as it worries political experts. Some, resigned, wonder if China has not found even the right formula. Hence, here arises the idea of devitalization of our democratic model, a society that has lost faith in itself challenged by the arrogant success of the unpredictable neophyte.

The issue that harass minds is: an unscrupulous country takes advantage of its special economic status without respect for human rights, while it freezes on a nationalist project that weights international system – not yet a rogue state but deaf to international pressure. And beyond that, is its development socially sustainable and to what extent China is potentially aggressive taking into account the mass effect of its demographic power?

Unrepentant Blair

Protestors called Blair a 'liar' and a 'war criminal'

Former Prime Minister Tony Blair has been appearing before an inquiry looking into Britain’s involvement in the Iraq War. Blair said he did not wait for UN backing, because he believed it would never be given.

Former British Prime Minister Tony Blair said he wanted the backing of the United Nations in the Iraq war, but believed that he would never get it. Giving evidence to a UK public inquiry into the decision to go to war, he said he thought that it would be pointless to continue debating the war with fellow United Nations Security Council members.

The inquiry is examining the legitimacy of the war as well as when the decision on providing military support for the 2003 US-led invasion was made. Blair, now an international envoy to the Middle East, said he doubted at the time that it would be possible to secure a UN “second resolution” that would add legitimacy to the war under international law.

“It was very, very clear to me that the French, the Germans and the Russians had decided they weren’t going to be in favor of this (…) There was a straightforward division, frankly, and I don’t think it would have mattered how much time we had taken; they weren’t going to agree that force should be used.”

Blair denied the accusation that he made a secret agreement with his US counterpart George W. Bush to go to war in Iraq. The former Labour Party leader was asked whether he had pledged to support the war during a visit to the then president’s ranch in Crawford, Texas. Blair said he had told Bush, “we are going to be with you in confronting and dealing with this threat,” but that no promises were made.

9/11 attacks changed judgement

The September 11 attacks changed the “calculus of risk” and meant it was no longer possible to contain Iraqi leader Saddam Hussein through sanctions, Blair also said. Britain committed 45,000 troops to the war. It was the most controversial episode of Blair’s 10-year premiership, provoking huge protests, divisions within his party and accusations he had deceived the public about the justification for invasion.

Under close questioning, Blair said the September 11 Qaeda attacks on the United States – and the threat of weapons of mass destruction – were the main factors in Britain’s decision to invade Iraq.

“We were advised that these people would use chemical or biological weapons or a nuclear device if they could get hold of them; that completely changed our assessment of where the risks for security lay.”

Unrepentant Blair defends war in Iraq without UN backing

No regrets over decision

At the end of the session, Blair said that he did not regret the war despite the fact that weapons of mass destruction were not found.

“If I’m asked if I believe we are safer, more secure, that Iraq is better with Saddam and his two sons out of power, then I believe indeed we are.”

The British inquiry has already heard from senior civil servants who said intelligence in the days before the March 20, 2003 invasion indicated that Iraq’s weapons of mass destruction had already been dismantled.

Protesters outside of the building where the inquiry was being held chanted “Tony Blair, war criminal!” as he entered through a back door amid high security.

Observers say that Blair’s appearance may not only affect his personal political legacy but also damage the Labour government of his successor Gordon Brown, who was chancellor of the Exchequer at the time of the Iraq invasion.

Obama’s War

The worst war is the one being fought into our brains.

West is repeating mistakes of the past in Afghanistan

As soon as its terms are acknowledged you can give it for lost. And you have to write it in full: in Europe, the war in Afghanistan is being considered ever-increasing lost.

It is about the culture war (1) wherein violent actions have a dual persuasive function: intimidate the whole population and transfer responsibility — i.e. guiltiness — to those who act in disagreement with radical Islam, thereby becoming potential targets. The result is that they lead to restraint freedom of expression and censorship. This war has many accomplices, because not only radical Muslims ask for a special status for their religion. Ireland enforced this Jan 1^st an anti-blasphemy act which punishes by fine up to € 25,000 those who commit blasphemy publicly. A soldier of this war is the Somali who the Year’s Day attempted assassination — ax and knife in hand — against Kurt Westergard, the Danish cartoonist who published a Muhammad caricature in the Jylland Posten in 2005 — who, since then, is under police protection. Pope, Tony Blair and even George Bush agreed criticizing the cartoons — despite freedom of expression is far better protected in West than in Middle East.

The next battle to fight, waged in view of everybody in the street and in institutions, is not far behind. As the former fight, its identification mark suggests that you are losing it as soon as you accept its existence. The dream of invulnerability can lead to the greatest aberrations. What a hard life will have those who use air transportation! But it happens likewise in trains, buses, subways and even private cars. There is however an inversion of terms in this case. In Europe, for now more familiarized with risk society, the reaction is moderate. In the US, however, where the legend of invulnerability has thrived, even Obama has been incapable to reverse the effects of war on the rule of law and freedoms. The soldier of this war is a Nigerian who tried to blow up the Northwest flight on its arrival to Detroit — from Amsterdam — on Christmas Day. And because of it Guantanamo will remain open. And as a result, imprisoned people without trial will keep on running, as well as secret warrants, eavesdropping without judicial control and everything Bush did at wholesale scale, but now acomplished in retail and with greater care and prevention.

The Culture War of values as shown on a graffiti

Where we are losing the second war at most — the war on values — is inside the third war; the war of real fighters with true clashes, and belligerent general staffs… basically, Obama’s real war. It is a regrettable and revolting war, as any war, but it is more certain and effective. It is waged in secret, without bluster, quietly — although the effects emerge with no little alarm from time to time. Such as, in the recent suicide attack on the CIA base in Afghanistan — a historic setback for the United States who believed getting bin Laden within reach through a double agent when in fact they lost six US agents and one  Jordan’s allied. This action of Al Qaeda is in response to a cyber war through drones, which maintains the CIA in Afghanistan and Pakistan, and has killed at least two dozen of prominent terrorist leaders.

Obama has intensified this kind of war, to the point that some experts say it will replace the current massive presence of troops in the conflict zone that spreads out from Pakistan to Somalia. The CIA has accomplished more than 50 attacks from Predator and Reaper drones all through Obama’ first year at the White House – figures that double those of 2008 with Bush on the stage and surpass the whole activity of the Bush 8 year Presidency. Formally it is about a targeted assassinations program that Bush authorized after another Republican president, Gerald Ford, banished it in 1976. Philip Alston, UN Special Rapporteur on Extrajudicial Executions and law professor at the New York University, believes that such actions may be legal in terms of “just war” when there are no other means to stop or prevent the enemy to go on with its activity and when every precaution is taken to avoid civilian casualties. But this does not appear to be the case because there is no official information and no possibility of judicial or parliamentary control over such actions.

Bush made a package with all those wars, which he called Global War on Terror — some mistook with a war against the Arabs or against Islam. “Invoices” for those errors, increasingly higher, are still coming now. Obama qualifies and distinguishes amongst them: but this does not make him immune to criticism from the right, for his supposed excessive restraint and, from the left, because of his continuity with Bush’s illegal war.

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(1) Have a look on the clash of ideas over here: The Cultural War

The United States and the Human Rights Council

The hopes quickly went on smoke at the end of the 12th session marking the official attendance of the United States to the Human Rights Council in Geneva.

H. Cartier-Bresson · Séville, 1933. © Cartier-Bresson & Magnum

When the United States announced their candidacy to the Human Rights Council earlier this year, many had welcomed the decision with the hope that some cases completely blocked under the government of George W. Bush could finally move forward, including those involving Israel, Gaza and the occupied Palestinian Territories. But hope quickly went up in smoke at the end of the twelfth session, which marked the United States official entry to the HR Council. The US administration had sent specially from Washington Michael Posner, Assistant Secretary for Democracy, Human Rights and Labor. He defines America’s standing in the council:

We see our role as broadly engaged in a range of issues. Our intention is to address all issues and suggest ways to advance the Council over its program to help the greatest number. We are in new relationships, new alliances. For example, we worked with Egypt on a resolution on freedom of expression that resolves disputes that we had. The Council needs this type of exchange. Our intention is to apply universal principles to everyone, including ourselves. We know that the US must lead by example in its own affairs and participate actively in the Council. Our situation of human rights will be reviewed next year with the procedure of Universal Periodic Review, and we encourage other countries to do likewise.[1]

The intentions were initially positive but Americans have widely criticized the Goldstone report on Gaza and US pressure has resulted to postpone the vote on the resolution at the next session in March 2010. The recommendation of the Goldstone mission to seize the International Criminal Court if no independent investigation is conducted within six months scared off Israel.

In turn, the US, who refused to join the ICC, might be revising its position:

We are currently reviewing our policy regarding the ICC and the ratification of certain conventions, like the Covenant on Economic, Social and Cultural Rights, which could pose a challenge for the USA. It’s a fresh start. And we will consider all treaties this way. I think this will be a long process. No doubt, priority will be done to the elimination of discrimination against women. We will create a new dynamic.[1]

But these are all political considerations that have taken hold in the Human Rights Council, although many NGOs have welcomed the opening created by the joint resolution between the US and Egypt on freedom of expression. Other resolutions which have been voted are at least as important as those on the Aboriginal peoples, the right to truth, the effects of toxic chemicals on human rights or access to care.

On the merits, the important thing for Fred Abrahams, senior researcher for HRW on the Middle East, is the implicit message by the reaction of the USA, Israel and the European Union – the latter very discreet on the Goldstone report:

If Europe and the US want to promote justice, for example in Africa, they must apply equally the concept of justice to the Israeli-Palestinian conflict. Otherwise, there will always be a double standard.

The Human Rights Council is criticised for its too political positions at the expense of serious violations of human rights situations. The United States have disappointed by their position on the report on Gaza. They will be very expected for the next March session of the Human Rights Council.

Related Posts:
· U.S. faces criticism from HR abusers at Universal Periodic Review
· The Spanish Law of Universal Jurisdiction, now in Brackets?

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[1] Véronique Gaymard, RFI – Chronique des droits de l’homme, Paris 3 oct. 2009

Does Russia Really Want to Resume Death Penalty?

As 2009 comes to an end, the clock is ticking for Russia’s constitutional court to reach a decision on capital punishment. The moratorium on the death penalty is currently due to expire with the dawning of the New Year.

A shot to the head was how Russia used to deal with violent crime

It’s a problematic issue, or so the opinion polls would suggest. Recent surveys say that up to 80 percent of Russians are in favor of a return to state-ordered execution, a practice which has been kept at bay for the past decade by a legally-binding document.

The 1999 moratorium on the death penalty was a condition for Russia to become a member of the Council of Europe. And although the Council would have preferred complete abolition, it agreed to the suspension while waiting for Moscow to commit ratifying a protocol which would completely proscribe capital punishment. But this, the Russian Federation has failed to do so far.

What’s more, the constitutional court attached a condition of its own to the moratorium. It stated that no tribunal in Russia would be allowed to hand down a death sentence until such time as jury trial – abolished in 1917 by the Bolsheviks – had been introduced in all regions of the federation.

With Chechnya, which is currently the only remaining republic not to use jurors, on the edge to adopt the practice in a few weeks time, Russia has a decision to make. It can go for extend the moratorium, reintroduce the death penalty or do away with it once and for all.

Mixed opinions

Which way the court will decide is anything but clear. Although many officials and experts addressing the hearings earlier this week spoke out against a resumption of judicial killings, some made cases in favor.

The Ria Novosti news agency reported Communist lawmaker Vadim Solovyav as saying the abolition of capital punishment could “contribute to the growth of criminality in Russia.” And he is not the only one to think that way.

But that line of argument holds little sway with the abolitionists. Friedericke Behr, Amnesty International researcher on Russia said such thinking is poorly-documented: “Research in many countries has shown that having a death penalty makes no difference to crime rates.”

Any decision to reintroduce the death penalty will not go down well in Strasbourg

Even so, President Dmitry Medvedev does not appear to be in a hurry to do away with it. His representative to the constitutional court, Mikhail Krotov, said the Kremlin supported “a stage-by-stage abolition of capital punishment.”

Exactly what that means is unlikely to be revealed before the court rules afresh in the coming weeks. But the pure fact that such masked statements are being thrown about is cause enough for concern, says Allison Gill, Director of Human Rights Watch Russia.

“The signal is that Russia is still holding back from putting itself in with the requirements of the Council of Europe,” Gill says. And that, she believes, stems from a reflex among Russian policy-makers to want to sign up to international and European institutions without wanting to fully commit to them. “I think there is an instinct on the part of certain Russian politicians to maintain a position of Russian exceptionalism,” she said.

Different is not always good

Only being different on this particular issue could have substantial implications for Moscow’s relationship with the Council of Europe. Russia is the only country which has not ratified protocol 6 – the abolition of the death penalty – and has frequently cited public opinion as the reason.

But in a country not renowned for curving to public pressure, such reasoning doesn’t really echo. “If the government has a political will to abolish the death penalty,” Gill said, “they could make a convincing case to the Russian public.”

At present the polls claim one in eight Russians would back the eye-for-an-eye way of thinking. Yet Friederike Behr says surveys on capital punishment are often manipulated from the outset.

“It’s all in the way you ask the questions,” she said, adding that the mention of publicly exposed vicious crime motivates the public to grant pollsters the kind of statistics they have been publishing in the past weeks.

Paradox polls

Russian police fail to inspire a sense of security in the population

Allison Gill agrees that such surveys cannot be taken as gospel, not least because the same public that flies the flag for state-ordered execution is deeply critical of the system which passes the sentences.

“On the one hand, Russians might be in the majority pro-death penalty, but on the other hand they also mistrust their own law enforcement system and their courts,” Gill said. “They don’t think they’re going to get a fair hearing.”

And some clearly don’t. As Behr points out, Russia has got it wrong on many occasions. “People have been sentenced to death and have been executed and then found to be not guilty,” she said. “There are people here who were on death row when the moratorium was introduced and who were then released later on because they were found to be innocent.”

It’s the age-old argument which applies to any state that still sentences its criminals to death, but it seems particularly pertinent in a country where so many people have so little faith in the justice system. As Allison Gill asks “how can that justice system be responsible for handing out the ultimate penalty?”

(Sources: RIA Novosti, Amnesty International, Human Rights Watch)

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Something smells bad in Wall Street

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Wall Street thriller goes on…

For some time, something smells bad in Wall Street, and despite the outright rejection that the greed of the system brings about, fraud is still the order of the day.

This time, the offensive from the authorities did not take long to show up when last Friday 16^th October six people were arrested for using illegal inside trading in a financial hedge fund. Among them, investment managers Raj Rajaratnam – a 52 year Sri Lanka billionaire –  and the hedge fund guru Mark Kurland, who handled $ 7,000 million assets. Wall Street thriller goes on.

Along with four more people under arrest, they have been charged with profiting from insider information and manipulating assets that caused more than $ 20 million illegal profits. According to FBI records, this case has emerged as the largest fraud in hedge funds, investment funds that have been targeted since the beginning of the crisis on its no supervision and facilities open to fraudulent transactions.

The dismantling of this organization – orchestrated by Rajaratnam Galleon Group initiator –was made possible through wiretaps performed by the FBI. With this, the research bureau shows that the office gives to these fraud cases the same treatment than fighting drug trafficking and organized crime. Similar to Bernard Madoff, Rajaratnam enjoyed a great protection net due to be an active donor of resources to political parties.

After accusations of inefficiency and delays in monitoring cases like Bernard Madoff, SEC and the FBI have started up operational plans to clean the large image of corruption surrounding the financial sector. Rajaratnam and Kurland’s fall is just one of many to come. Part of the resolution of conflicts that sparked the current crisis, settles into purge the image of the financial sector and eliminate corporate wrongdoing.

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Terrorism and Justice

The Need to Compensate Victims of Terrorism

OOOOOO

>> Haga click aquí para la versión en Castellano

Victims of terrorist acts, such as the DC-10 UTA [1], or Baghdad or Kabul have several nationalities: Congolese, Algerians, Spanish, Chad, French, Iraqis, Americans, Afghans… Some have been compensated, others not; some were able to file a claim for civil damages in a criminal proceeding, while others will never have such a chance. It is this disparity between the nationalities that criticizes professor Ghislaine Doucet [2], a specialist in international humanitarian law. Solutions do exist:

The first alternative would be to set up  an international global fund to compensate victims, just like the Fond de Garantie (Guarantee Fund) existing in France. I firmly believe that there are ways for such a fund, so as not to leave the victims in distress. Because too many victims of terrorism, since they are seriously injured, physically as morally, can not find a job – for those who have one – and they are therefore in utter destitution. And then the second option is a universal criminal justice response, because all victims of terrorism have no chance to face the perpetrators of the crimes they have suffered or that their relatives have suffered.

Access to justice is key element but when national justice systems are unable or unwilling to judge the International Criminal Court could take over. However, it has been decided at the ICC’s foundation that it would have jurisdiction to try war crimes, crimes against humanity and genocide, but not terrorism. However, a crime of terrorism may, in some cases be considered a crime against humanity. Mariana Pena [3], specialist and IFHR/FIDH Liaison Officer with the ICC in The Hague:

These conditions should not be widespread or systematic [...] But an attack should have been instigated against the civilian population – with or without knowledge of the attack, which is often the case when a terrorist hit occurs.

And then the question of defining terrorism has long been an obstacle to further discussions on reparation and justice. According Ghislaine Doucet obstacles to the definition is a false debate [2]:

Terrorism on the international level is clearly defined. In times of armed conflict, acts of terrorism are explicitly prohibited by the Geneva Conventions. Beyond the act of terrorism, such as hostage taking, are prohibited. Attacks against civilians are prohibited. So these are prohibited acts and then punishable. Conversely, in peacetime, we have thirteen international instruments [4] which prohibit the use of terrorism. And that furthermore require states that are parties to these instruments to punish these acts. [...]

So if you are able to classify internationally, such as acts of terrorism and therefore these acts were punishable under criminal law, why the phenomenon of terrorism is not defined?

It is however clearly defined because otherwise we would not have all these international instruments. [...] All acts of terrorism in their different facets are almost covered by these international instruments. The crux of the problem is not so much defining but to determine its scope (that is, competency areas). [2]

And that’s what the UN faces for years, seeking to establish an international convention banning terrorism. Some wish that the actions undertaken by the armed forces of a State do not fall within the definition of terrorism. Others would exclude acts of resistance on behalf of the right of peoples to self-determination. These are questions that also face the victims of terrorism and their relatives.

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[1] 19 September 1989 a UTA DC10-30 aircraft,crashed near N’Djamena, Chad, as a result of an explosion in flight due to a bomb. All 156 passengers and 15 crew were killed.

[2] Terrorisme, victimes et responsabilité pénale internationale. (Terrorism, Victims and International Criminal Responsibility). Paris, Calmann-Lévy, 2003

[3] IFHR (International Federation of Human Rights) special representative at the ICC, The Hague

[4] UN Treaties and Protocols

Who Wants Judge Garzon’s Head on a Platter?

Judge Garzon on the Spotlight of the The Spanish High Court

Judge Garzón said Spain learned that torture doesn't work.

The career of the Spanish star judge –who became famous for having ordered, in November 1998, the arrest in London of former Chilean dictator Augusto Pinochet for « genocide, terrorism and torture » – is on the edge now. The Court of criminal appeal of the Spanish High Court is about to charge him for « corruption in the performance of his functions ». If indicted, the « super judge » from the Audiencia Nacional – i.e., the National Criminal Court, the highest criminal court of Spain – would be immediately suspended whereas pending for trial.

What was his crime? Unlocking [October 18, 2008] – and at the request of families – an investigation on the ‘forced’ disappearances of 114 000 Republicans – that the judge reclassified then as ‘crimes against humanity’ – during the Spanish Civil War (1936-1939) and Franco dictatorship. Unsurprisingly, this initiative stirred up the far right troops and brought about a mutiny against « reopening old wounds ». But also a part of the government and the Socialist Party, who saw an attack on the shortcomings of the  Ley de memoria histórica (Law on Historical Memory), painfully adopted a year earlier.

The Attorney General, Cándido Conde-Pumpido, has requested the annulment of proceedings as well. He is arguing the incompetence of the Audiencia Nacional on this subject. The prosecution’s appeal was accepted [December 2, 2008]. The case might have ended there if in the meantime Baltasar Garzon did not step down himself |November 18] by returning his jurisdiction to local judges: each of them can therefore arrange the opening of graves and exhumations within their jurisdiction. « He acted as if he was putting aside the atomic bomb – i.e. closing the case –» whereas « he was disseminating a lot of small bombs across the country » [1].

The controversy has shifted from political scope to the judiciary when in January 2009 a criminal complaint was filed by two extreme-right organizations, a ghostly « union of civil servants » called ‘Manos Limpias’ (Clean Hands) and the Association ‘Identidad y Libertad’ (Freedom and identity). [2] The criminal complaint reproaches judge Garzon violating the 1977 amnesty law – based on a tacit « pact of oblivion », supposed to ease the Spanish transition to democracy; and also for his persistent willingness to investigate facts that he was aware they were supposedly prescribed and amnestied by introducing the concept of   ‘crimes against humanity’  which did not exist at the time of civil war.

Judge Garzon has received cases connected to rights abuses in several countries

Most likely, Baltasar Garzon would not risk his professional future in this business without the excess of zeal of some judicial colleagues. Besides the ideological dimension of the case, there is a suspected game of settling scores – a payback related to Judge Garzon’s personality, whose liking for notoriety and spectacular methods annoys most of his equals [Well, I do not think for that reason his goodwill and performances become worthless... unless they are inversely proportional)

The complaint against judge Garzon was admissible on May 26, by a commission chaired by Judge Adolfo Prego, whose ultraconservative sympathies are notorious. As a member of the Honorary Board of the ‘Foundation for Defense of the Spanish nation’ (Dena), he had signed along with other jurists, a particularly aggressive text in opposition to the Law on Historical Memory, reproving it for « glorifying as martyrs of freedom many of the worst criminals that darkened our history. » [3]

The examining magistrate, who took Garzon’s deposition for nearly four hours [September 9] – and who could make him return to the dock – is on the contrary a man clearly on the left side of the chessboard. He, Luciano Varela, is close to the Vice-President of the Spanish Government, Maria Teresa Fernandez de la Vega, and has never hidden his dislike for the ‘super judge’ manners. This high figure is a brilliant lawyer, founder of the renowned association ‘Jueces para la Democracia’ (JpD, Judges for Democracy), nicknamed by his colleagues « O Guerrilleiro » (the ‘guerrilla partisan’) because of his radical sentences. According to journalist Julio Lazaro from ‘El Pais’ Varela  has « an ego as boundless as that of Garzon. » [3]

The defendant’s counsel pleaded the closing of the complaint [October 1] before the High Court. « The assertion that Judge Baltasar Garzon has acted unfairly does not stand – says Gonzalo Martinez-Fresneda. In truth, abandoning the families who demanded justice would have been unjust. » Most analysts think case dismissal is unlikely, because of the fighting spirit demonstrated by Luciano Varela during the questioning of Judge Garzon. At best, Garzon could benefit from a period proviso the High Court demands further investigation.

Civilian refugees from the Spanish Civil War

Spanish journalists seem to anticipate an unfavorable outcome for what they call the «  fallen angel ». The holder of the Fifth Chamber of the National Court, aged 54, is now on its own. As a tireless worker, he has processed about 7 000 cases in twenty years and has imprisoned more than 1 000 ETA activists and supporters –as many enemies.

The rejection of his candidacy for president of the National Court, in March, was a sign of his low popularity in the judiciary. «Whatever the decision of Luciano Varela is, there’s no doubt: the High Court jar has overflowed, and if not this time it will be done the next one.» [2][3] Several other complaints, in further cases are in the waiting room, just in case. The international prestige of Baltasar Garzon, the support of the International Commission of Jurists and the mobilization of Franco victims’ families may not weigh sufficiently. Hopefully not so. Spanish democracy can not (and might not) do without a man as judge Garzon.

It is comforting however to observe that he has not yet thrown in the towel.   Not at all.

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Related Posts:

· Garzon, an ‘inconvenient’ judge, now sitting in the dock

· International lawyers support the Garzon’s cause against Franco’s regime

· The Spanish Law of Universal Jurisdiction, now in Brackets?

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[1]  Spanish Judge Seeks Names of Victims in Franco Era, NY Times, September 1, 2008

[2] La defensa de Garzón pide el archivo de la querella ‘franquista’. El Pais, Oct. 1 & 2, 2009

[3] Garzón, en el punto de mira. El Pais, Sept. 21, 2009

Roman Polanski Revisited

Why talent is not above justice.

The French-Polish filmmaker was arrested in Switzerland upon a US request due to a sex scandal back in the late 70s.

The legal issue on the case.- Roman Polanski was arrested under an international warrant of arrest issued by a US court. Many international conventions, bilateral or multilateral on judicial cooperation, get involved to require the execution of the warrant by the requested State. These agreements are not signed with any state: e.g. France has no extradition treaty with Iran or North Korea. In this occasion, we witness the execution of the extradition treaty between the United States and the Swiss Confederation, signed in Washington on November 14, 1990 (pdf here).

The warrant is notified to the country’s authorities where the person comes into (if he is registered in the international database of Interpol). When a person comes to the border the police check on the base. If the answer is positive, the person must be arrested, police officers have no choice. In all Western legal systems the warrant leads to provisionally incarceration, typically a few days, the time for authorities to notify the warrant to the individual, so he is able to identify who ordered his arrest and why. This is crucial for the rights of defense and the non-compliance with this condition leads to prisoner’s immediate release. The detainee has right to a counsel (i.e. a lawyer). He is then presented to a judge who will ask him if he agrees to be returned to the requesting state. If he refuses, the judge decides on possible release supervision – and he can appeal the warrant of arrest.

Finally, there is a fundamental principle: a State never extradites its nationals. This is contrary to the protection it owes to its citizens. That does not mean they are immune from prosecution in their home state. And I think it necessary to add that no law or international convention provides immunity for artists, Oscar-winning or not.

Mr. Polanski is French and Polish. He is the target of an international warrant of arrest issued by a Californian court of justice for an issue dating back to 1977. At that time he had sex with a minor aged 13 after making her drink alcohol and consume drugs. Mr. Polanski presumption of innocence did expire as soon as the illusions of this girl broke down – since Roman Polanski admitted facts by pleading guilty. In the legal sense, Roman Polanski guiltiness is no longer on discussion. After a few days in jail, Mr. Polanski was released in hold of the sentence hearing. He took the opportunity to clear out LA and has carefully avoided the U.S. for thirty years. Initially, the indictment contained five charges, including rape . Following an agreement with prosecutors – as California law allows it – Roman Polanski pleaded guilty to a single chief of “unlawful sexual intercourse with a minor” (i.e. child sexual abuse, California Penal Code Section 261.5.), offense punishable by 4 years.

The warrant seeks to summon for sentencing – hence the appearance of the convicted person is required in California law. The victim has been formerly compensated and she withdrew her complaint. This was probably part of the agreement with the prosecution (the victim is not party to the criminal trial in American law). This does not preclude further prosecution. While he resided in France, Mr. Polanski was confident: France does not extradite its nationals. And he could not be prosecuted in France, although being French national, as the facts have already been tried in the United States. This is the rule non bis in idem (no matter can be judged twice).

Vanity catch out our filmmaker: he was invited to Switzerland to receive a reward for all his career, and then he came visit the pleasant federal confederation. Fatality: at the airport, when checking the passport, custom bell gave a loud ‘bang-bang’:  “Mmm, this man is the subject of an international warrant of arrest issued in 2005″ thinks the policeman. “Mr.Polanski is not Swiss,so he can be stopped”… and here he tasted the wet straw of Helvetian dungeons, where he is in individual cells, confined 23 hours a day. Does it shock you? Please take note that prisoners in France are treated the same way in jail, except that in addition, they are in an overcrowded cell.

Finally, I found two shocking things in the barrage from the artists’ world.

Notwithstanding Mr. Polanski has long suffered throughout his life – an unhappy childhood in the Cracow ghetto; then as an orphan whose parents were deported and killed by Nazis; the awful murder of his wife, actress Sharon Tate, by Manson’s sect – this does not grant him a leeway to commit a crime and escape the law. One’s to bear in mind that this is a crime. It is a matter of rape in the person of a minor.

I find it shameful to hear artists – who a few weeks ago vowed to pillory French downloaders (Hadopi law on censorship over Internet) and approved the repressive legislation against constitutional rights to punish the illegal downloading of their works – make now a fuss when it is one of them whom the law applies in its entire rigor. When you know that a lot of downloaders are in the 13, we draw the impression that minors are good for their eyes only to spit their pocket money and serve as sex objects. As if their image needed it. And after that, we treat judges as corporatist.

It makes my blood boil when I hear the French minister of culture Mitterrand  pointing “the America that fears.” Oh, how we know America badly. Tocqueville had already identified 170 years ago, the passion for equality in this country. It has not changed. It is inconceivable there to treat an individual differently because he belongs to aristocracy, even THE artistic aristocracy. Even if it permanently weakened the executive, ten years ago, America has seriously considered the possibility of overthrowing the President because he lied under oath before a Grand Jury.

A justice that does not spare the powerful and those protected by the powerful? I understand now why a minister of the French Republic – a republic who has carefully put his president and his ministers safe from justice – finds that America is frightening.

ICTY tryes to silence a troublesome whistleblower: Florence Hartmann guilty of contempt

The International Criminal Tribunal for the former Yugoslavia (ICTY) convicted Hartmann of contempt to the court Monday for disclosing confidential information in a genocide case. She was sentenced to pay a fine of 7,000 Euros.

Florence Hartmann prosecuted to have disclosed the existence of confidential decisions made by the Court of Appeals in the Milosevic case.

Florence Hartmann accused the court of ‘trying to silence the truth’.

Florence Hartmann was found guilty of breaching the court’s rules when she disclosed the contents of two appeals chamber decisions from the Slobodan Milošević case in a 2007 book as well as an article she wrote in 2008.  She has been fined 7,000 euros.

Hartmann was spokesperson for the International Criminal Tribunal for the former Yugoslavia’s (ICTY) Prosecutor Carla del Ponte between 2000 and 2006.

The court dismissed her argument that the information she realeased had already been put in the public domain by the tribunal.

The court said the fact that Hartmann spent six years in the capacity of the spokesperson of the Prosecutor meant that she was well aware of what the confidentiality of a decision entailed.

The Chamber further argued that Hartmann’s conduct could deter sovereign states from cooperating with the Tribunal in providing evidence in the future.

“This…impacts upon the Tribunal’s ability to exercise its jurisdiction to prosecute and punish serious violations of humanitarian law as prescribed by its mandate,” Judge Bakone Justice Moloto, presiding, said.

“Public confidence in the effectiveness of protective measures, orders and decisions is vital to the success of the work of the Tribunal.”

The French journalist was the first former employee to stand trial for contempt before the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague.

Her case was filed under the same number as that of Slobodan Milosevic. But Hartmann refused to sit on the same chair as the tribunals regular suspects since her case was not about war crimes.

Hartmann had publicly accused the UN war crimes tribunal of “trying to silence the truth”.

The tribunal argued that she “knew that the information was confidential at the time disclosure was made, that the decisions from which the information was drawn were ordered to be filed confidentially, and that by her disclosure she was revealing confidential information to the public.”

Hartmann covered the 1990s Balkan wars as a correspondent for the French newspaper Le Monde. She thereafter became spokeswoman for the former chief war crimes prosecutor Carla del Ponte from 2000 to 2006. She then published a book, “Peace and Punishment: The Secret Wars of Politics and International Justice”.

In 2008, Hartmann wrote an article entitled “Vital Genocide Documents Concealed” that was published by the Bosnian Institute.

In her publications Hartmann wrote that the Hague prosecution was allegedly unhappy with the tribunal’s decision to accept Serbia’s request to have some portions of the state archive documents considered in closed sessions. The judges in the Milosevic case allowed Serbia to censor parts of evidence that was made public. She believes that it was precisely those pieces of evidence that were key in determining Serbia’s responsibility for the genocide in Bosnia.

Hartmann argued that it was thanks to the Tribunal’s collusion with Serbia in the suppression of this crucial piece of evidence, that Bosnia was not able to draw upon the latter in its case against Serbia for genocide at the International Court of Justice (ICJ), leading to Serbia’s acquittal.

Far from punishing the perpetrators of genocide in the former Yugoslavia, the Tribunal has helped to shield them, Hartmann said. She accused judges of the Appeals Chamber, headed by former Tribunal President Fausto Pocar, of being “accomplices in manipulation organized by the authorities in Belgrade, so that the International Court of Justice, which heard the Bosnian genocide lawsuit, would be made to make the same mistakes the Hague Tribunal made”.

Her book has received broad coverage, and it kicked off a storm in the Balkans even before translations became available in early November 2007, with local politicians using it to attack the ICTY’s legitimacy. A month after the publication, she received a letter from the tribunal reminding her of her administrative and legal obligations to respect its confidentiality rules.

Related Posts: Tables Turned: Former ICTY Spokeswoman now before The Hague Court

Questions about an execution

Echoes of an umpteenth time tragedy

Henri Cartier Bresson · Cell in Model Prison in the USA, 1975

With 135 death convicted since 1973, it was clear that the evidence would come a day in the United States, that a man has been sentenced to death by mistake and then executed.

That day seems to have happened, if you attend to the opponents of death punishment. Innocence Project co-Director Barry Scheck says:

”There can no longer be any doubt that an innocent person has been executed. The question now turns to how we can stop it from happening again”.

Innocence Project is an NGO dedicated to helping prisoners to use DNA genetic testing.

“As long as our system of justice makes mistakes – including the ultimate mistake – we cannot continue executing people,” Scheck said.

On 23 December 1991, a 2-year-old daughter and 1-year-old twins died by fire at family home in Corsicana, Texas. Cameron Todd Willingham, 23 years, the children’s father, who was the only adult present, has been accused of murder. He was found guilty and then sentenced to death in 1992. After twelve years in death corridor and five appeals, Camron Todd was executed by lethal injection in 2004, although he always protested his innocence.

Five years later, an investigation committee on the death penalty operation in Texas established in its preliminary conclusions that the fire could have been a purely accidental origin – that’s what Innocence Project has argued all the time.

According to the weekly The New Yorker, who spent a long investigation on Cameron Todd Willingham’s case, the Commission should deliver its final report in early 2010. It reports a botched investigation, particularly in terms of scientific expertise to determine the origin of fire. For ten years, several states have imposed a moratorium or initiate discussion, after being confronted with legal errors, but none has yet admitted having executed an innocent man.

An ‘affligeant’ indictment

In a 30 August editorial column, The New York Times considered the Cameron Todd Willingham’s case “shocking”, even for those who have

“no illusions about the brutal injustice of the death penalty after all of the exonerations in recent years from DNA evidence. […] It is outrageous that Texas is conducting its careful, highly skilled investigation after Mr. Willingham has been executed, rather than before”,

…reproves the NYT, emphasizing on the fact that the defendant’s trial ran just two days.

Texas remains the state that executes more: 18 of the 37 executions in 2009. But across the country, capital punishment is declining; it has reached its lowest level for thirty years because of so called “crisis of confidence” in the judiciary –in the opponents’ words. Nearly 3 300 inmates are in death corridor now, whereof 53 are women.

International lawyers support the Garzon’s cause against Franco’s regime

The Spanish Supreme Court summons the judge in a lawsuit for ‘deliberate neglect of duty’.

The International Commission of Jurists (ICJ), based in Geneva and made up of 59 presidents and former presidents of supreme courts, judges and lawyers from countries represented at the United Nations, expressed on Tuesday 8 Sept. its concern about the investigation handled against Judge Baltasar Garzón in the Spanish Supreme Court. The ICJ qualified the inquiry as “unjustified interference” in Garzón’s professional competences.

Judge Baltasar Garzón

The ICJ statement of support to Garzón occurs before its imminent issue to subpoena to the Supreme Court on the way to declare as defendant in a lawsuit from the far conservative association called “Manos Limpias” (Clean Hands) for his investigation on crimes against humanity committed during the Spanish Civil War. Manos Limpias filed a criminal complaint against Garzón for knowingly overreaching his jurisdiction (prevarication).

Garzón is under investigation before the Criminal Chamber of the High Court for an alleged crime of judicial misconduct in public office (=deliberate neglect of duty) –to be precise, to take decisions knowing full well that they are unjust. The lawsuit, filed by the obscure far-right union Manos Limpias , which later joined by extreme rightist Libertad e Identidad (Freedom and Identity), was declared admissible on 26 May by the President of the Criminal Division, Juan Saavedra, and four other judges.

The subpoena to testify by Baltasar Garzón – the most prominent Spanish judge abroad – in a criminal case pending against him by the Supreme Court was pending before the summer. The instructor of the high court, Luciano Varela, called Garzón yesterday to appear in court. Judge Baltasar Garzón defended for nearly two and half hour his jurisdiction to investigate the graves of Franco’s regime before the Supreme Court instructor Luciano Varela.  According to sources in the indictment, Garzón firmly denied having committed any trespass and refused to answer the battery of 150 questions introduced by the private prosecutor Jaime Alonso. Judge Garzón responded no more than issues raised by the instructor Luis Navajas and his own defense. None of the prosecutors asked for precautionary measures against the judge.

Meanwhile, the case opened to Garzón has caused concern in international legal forums…

“International Standards on the Independence of the Judiciary prohibit criminal responsibility of judges for controversial decisions and even unjust or incorrect in any case, should be addressed through disciplinary mechanisms established to that effect,”

…said Roicin Pillay, Senior Counsel for Europe of the International Commission of Jurists.

According to the commissioner of the ICJ, criminal investigations against judges “for acts framed within their professional duties are unjustifiable and inappropriate interference in the independence of judicial proceedings and are contrary to Article 14 of the International Covenant on Civil and Political Rights and the principles 4, 17 and 18 of the United Nations Basic Principles on the Independence of the Judiciary “.

The ICJ considers that this attempt to interfere in the judicial process is of “particular concern” since it involves an investigation into crimes against humanity, that “Spain has the international duty to investigate and prosecute.” According to a statement by the ICJ, these crimes have no prescription.

“The investigation of Judge Garzon for crimes against humanity does not correspond to professional negligence that would justify a disciplinary action, much less a criminal prosecution,” said Roicin Pillay.

The ICJ has reported this case to the UN Rapporteur on the independence of judges and magistrates “and hoped that the proceedings against Judge Garzon be dismissed as soon as possible.”

What is the ICJ commission

• The International Commission of Jurists was founded in 1950 and is headquartered in Geneva (Switzerland). It consists of 59 commissioners from the majority of countries represented at the UN. It is composed of lawyers, attorneys and members of courts of justice, among others, presidents or former presidents of the Supreme Courts of Canada, Australia, New Zealand, Argentina and South Africa.

• The current President is Mary Robinson, former president of Ireland and former UN High Commissioner for Human Rights.

This new regrettable sequel blurs Spanish justice once again. Because the Judge Garzón’s supposed “abuse of power” that sustains this lawsuit, concerns the investigation for the crimes against humanity committed by the regime of General Franco during the Spanish Civil War. Judge Baltasar Garzón had no statutory power to investigate this matter, the indictment said, and therefore committed a criminal offense. As said Emilio Silva, president of an association of civil war victims and their families, this is “justice upside down”: what should be punished is the performance of conservative judges who DO NOT want to investigate crimes under Franco. And that occurs in a country whose courts do have authority to open proceedings against Pinochet’s abuses or other crimes against humanity committed anywhere in the world.

Judge for yourself.

The ‘Responsibility to Protect’ in the spotlight

During a session of the UN General Assembly, held last July, Noam Chomsky presented an interesting paper [1] (which inspired this post) that calls for consideration on humanitarian intervention, so called since the second half of 20th century and now considered under the general concept of “Responsibility to Protect“, which was the focus of that meeting.

This meeting was attended by nearly a hundred countries. Their armed force units have a presence in countries as Bosnia-Herzegovina, Kosovo, Afghanistan, Chad and Lebanon and keep observers in UN missions. None of them deploy overseas for wartime missions but essentially to “protect” life and interests of other peoples.

For the eminent linguist, historical precedents for such missions generate a few distrust. He mentions some of the basic principles on international relations, assumed over the centuries, which could be summarized as follows:

• The strong do what they want and the weak suffer what they deserve (principle already formulated by Thucydides).

• Legislators pay more attention to the interests of the powerful than to the common people (suggested by Adam Smith).

• Many military interventions have been made under the principle of protecting the people, but have been characterized by their cruelty. Chomsky brings up three examples: the Japanese invasion of Manchuria in 1931, the Italian invasion of Ethiopia in 1936 and the Nazi occupation of Czechoslovakia in 1938. In all three cases, a bleeding rhetoric on the protection of the own people was invoked, that barely concealed the true motivation, that is a firm imperialist expansion.

Anyone acquainted with the history of colonization realizes that “evangelizing mission” of the Spanish conquerors in the American lands was intended to save the souls of the Indians although that involved the exploitation and exhaustion of people, the occupation of their homeland and embezzling their resources. Not worse than the French, British or Belgian “civilizing mission” with more often than not unmentionable objectives as well i.e. in Africa and India.

Another issue to bear in mind regarding the protection of peoples, is the reason that NATO wielded to fix on that Balkans should be protected, even bombing Serbia in 1999 with a total lack of consideration (remember, incidentally, that the bombing did not alleviate the plight of the Kosovar people but aggravated it) and, on the contrary, it was appropriate to ignore other people, Kurdish, that was suffering –within its own territory under the responsibility of NATO– a brutal persecution by Turkish forces, one of the main partners of the Alliance .

NATO “protective” interventions do not only care about the suffering peoples. Kofi Annan, the former UN Secretary-General announced in 2007 that Allied troops should protect the pipelines transporting oil and gas to western countries and other infrastructure elements of the energy system. For Chomsky, this “opens the door to employ the right of protection as a tool of imperial intervention, as suitable.”

Neither the UN is safe from Chomsky’s criticism: “No one thinks today to protect the Gaza people, which are also a United Nations responsibility (according to the Geneva Conventions), together with other people who lack basic human rights. Nothing serious is considered about the worst catastrophe in Africa, if not the world: the eastern Congo, where several multinationals have been accused of violating UN resolutions on the illegal trafficking of valuable minerals, by which a criminal conflict is funded.

The responsibility to protect does not seem to reach hungry people. They now number about one billion human beings, while the World Food Fund announces a reduction in aid, because rich countries give priority to save their banking systems and there are no funds enough as a result of the crisis, just originated by those same banks. All this shows the validity of the principle formulated by Thucydides.

Let’s not get carried away by the lucid pessimism of the relentless American critic. Keep in mind that this issue has been addressed in an international forum, the UN General Assembly, whose echoes can be extended worldwide. Conversely, a century ago, the Algeciras conference was held to share out Morocco between France and Spain –with the approval of the great European powers. 20 years earlier, these powers gathered in Berlin to share other vast African territories. There was no intention to protect the affected people, though the Moroccan division was entitled as “protectorate”. So it seems we’re making some progress on this issue.

The Responsibility to Protect, Noam Chomsky and Friends part 1

The Responsibility to Protect, Noam Chomsky and Friends part 2

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[1] ‘Responsibility to Protect‘, by Noam Chomsky (talk delivered at UN General Assembly), 23 Jul 2009

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Noam Chomsky on the Responsibility to Protect

At a session of UN General Assembly, held last July, Noam Chomsky presented an interesting paper that calls for consideration on humanitarian intervention, so called since the second half of 20th century and now considered under the general concept of “Responsibility to Protect”, which was the focus of that meeting.

This meeting was attended by nearly a hundred countries. Their armed forces units have a presence in countries as Bosnia-Herzegovina, Kosovo, Afghanistan, Chad and Lebanon and maintain observers in UN missions. None of them deploy overseas for wartime missions but essentially to “protect” life and interests of other peoples.

For the eminent linguist, historical precedents for such missions generate a few distrust. He mentions some of the basic principles on international relations, assumed over the centuries, which could be summarized as follows:

• The strong do what they want and the weak suffer what they deserve (principle already formulated by Thucydides).

• Legislators pay more attention to the interests of the powerful than to the common people (suggested by Adam Smith).

• Many military interventions have been made under the principle of protecting the people, but have been characterized by their cruelty. Chomsky brings up three examples: the Japanese invasion of Manchuria in 1931, the Italian invasion of Ethiopia in 1936 and the Nazi occupation of Czechoslovakia in 1938. In all three cases, a bleeding rhetoric on the protection of the own people was invoked, that barely concealed the true motivation, that is a firm imperialist expansion.

Anyone acquainted with the history of colonization realizes that “evangelizing mission” of the Spanish conquerors in the American lands was intended to save the souls of the Indians although that involved the exploitation and exhaustion of people, the occupation of their homeland and embezzling their resources. Not worse than the French, British or Belgian “civilizing mission” with more often than not unmentionable objectives as well i.e. in Africa and India.

Another issue to bear in mind regarding the protection of peoples, is the reason that NATO wielded to fix on that Balkans should be protected, even bombing Serbia in 1999 with a total lack of consideration (remember, incidentally, that the bombing did not alleviate the plight of the Kosovar people but aggravated it) and, on the contrary, it was appropriate to ignore other people, Kurdish, that was suffering –within its own territory under the responsibility of NATO– a brutal persecution by Turkish forces, one of the main partners of the Alliance .

NATO “protective” interventions do not only care about the suffering peoples. Kofi Annan, the former UN Secretary-General announced in 2007 that Allied troops should protect the pipelines transporting oil and gas to western countries and other infrastructure elements of the energy system. For Chomsky, this “opens the door to employ the right of protection as a tool of imperial intervention, as suitable.”

Neither the UN is safe from Chomsky’s criticism: “No one thinks today to protect the Gaza people, which are also a United Nations responsibility (according to the Geneva Conventions), together with other people who lack basic human rights. Nothing serious is considered about the worst catastrophe in Africa, if not the world: the eastern Congo, where several multinationals have been accused of violating UN resolutions on the illegal trafficking of valuable minerals, by which a criminal conflict is funded.

The responsibility to protect does not seem to reach hungry people. They now number about one billion human beings, while the World Food Fund announces a reduction in aid, because rich countries give priority to save their banking systems and there are no funds enough as a result of the crisis, just originated by those same banks. All this shows the validity of the principle formulated by Thucydides.

Let’s not get carried away by the lucid pessimism of the relentless American critic. Keep in mind that this issue has been addressed in an international forum, the UN General Assembly, whose echoes can be extended worldwide. Conversely, a century ago, the Algeciras conference was held to share out Morocco between France and Spain –with the approval of the great European powers. 20 years earlier, these powers gathered in Berlin to share other vast African territories. There was no intention to protect the affected people, though the Moroccan division was entitled as “protectorate”. So it seems we’re making some progress on this issue.

The Spanish Law of Universal Jurisdiction, now in Brackets?

The Spanish National Criminal Court (Audiencia Nacional), open to individuals supported by combative magistrates such as Pinochet’s antagonist, judge Baltasar Garzón, has ostensibly become a breeding ground for politically-charged prosecutions having little or no connection to Spain. Investigations have been initiated against renowned American officials including Dick Cheney and Condoleezza Rice related to the torture of terrorism suspects. Seven Israeli politicians and military officers, with former defense minister Binyamin Ben-Eliezer, are the subject of an explorative investigation because of a July 2002 Gaza Strip air strike that resulted in fourteen civilian deaths. Chinese officials are being investigated for abuses in Tibet and forty Rwandan army officers have been indicted in connection with alleged post-genocide reprisal massacres. Detractors allege that activists going for political purposes and settling scores have took control on Spanish UJ. The Spanish government gives the impression to acquiesce and has been opposed to these extensive global justice efforts. In fact, Spanish public prosecutor’s office has explicitly disputed the UJ power of the Audiencia Nacional. In addition, since the exciting days of Pinochet, only one defendant has been tried and sentenced under the Spanish UJ law (Argentine naval captain Adolfo Scilingo, who turned himself in to Garzón in 1997 and was condemned at last to 640 years in jail for “Dirty War” crimes during the Argentina’s military dictatorship).

Henri Cartier-Bresson · Gestapo Informer (1945)

So what happened? Now the Spanish justice system can intervene only when there are Spanish victims or when the alleged responsible will be on Spanish soil if the country concerned cannot or will not prosecute alleged perpetrators. For Gonzalo Boyé, of the Madrid Bar, working with the Palestinian Center of Human Rights, the NGO that filed a complaint before the Spanish courts for the bombing of Gaza in 2002, in restricting this law it means that the Justice is not the same for everyone.

“Until now, no one in Spain had put back the law in doubt, as it was to pursue criminal Latin Americans or Africans. The problem arose when we had cases involving Israel and China. This means that the government is applying the “double standards”. On the one hand, it deals with crimes against humanity and war crimes or torture, when committed by Africans or South Americans. The other one has a very different situation, where such crimes are committed by countries that are very important in the eyes of the government.” [1]

The political and diplomatic pressures overcame the justice. Foreign leaders abroad have put forth demands on Spain to restraint the Audiencia Nacional jurisdiction and it appears that Madrid, willing to remain a player on the international stage, is ready to do the right thing. This is a deliberate political pressure. We must not forget that on 29 January 2009, the Foreign Minister of Israel, Tzipi Livni, said the Spanish foreign minister, Miguel-Angel Moratinos, had ensured her that the law would be changed and five months later, this legislative change had taken place. We should not be very brilliant to understand that Spain has changed its law to meet Israel demand . Yet conversely, Israel maintains its own law of UJ, which means that while in Spain a war crime is committed, Israel might try it. Why Spain could not judge a war crime committed in Gaza?

Poster by the Madres de la Plaza de Mayo NGO with photos of the disappeared

In 2003 Belgium had to restrict the scope of its own law of UJ, under pressure from Israel and the United States, but the Belgian law was much broader than in Spain, according to lawyer Patrick Baudoin, President Honorary FIDH:

“The Belgian courts were an absolute UJ, as nowhere else. Ie, that a Belgian court could try an Argentine criminal for crimes committed in Peru against nationals of the United States without anyone found on Belgian territory, neither the victims nor the alleged perpetrators. Therefore, it had gone too far [...]. This is not the case of Spain. Here the Spanish judge must ensure that in the country there is no justice who “passes” in a way. In addition, it only then the court can go further because there is no reason for this impunity to prevail. “[1]

The principle of UJ provided in the four Geneva Conventions and the Convention against Torture, allows any country to initiate, as recalled Reed Brody, European press director at Human Rights Watch:

“There are many European countries that have this in common, that if a victim of their nationality or whether the alleged charge is found on their territory, the country in question is competent. Where Spain had a head start, now we can do nothing unless the person is coming to Spain. However, [...] nobody is in Spain or another country for a very short period, because it does not give the time needed to start proceedings and seek a warrant.”

The Spanish lawyer Gonzalo Boyé must lay an extension to the former complaint on Gaza in 2002 to events earlier and later. It would include the bombing in Gaza in 2008, which made victims of Spanish nationality. A rebound occurred on June 30: The Spanish judiciary has decided to shelve the investigation into the complaint on the bombing of Gaza in 2002. A resolution that does not worry Mr. Boyé. The complainants have submitted an appeal to the Spanish Supreme Court. As to the law of UJ, the Senate will consider it in September 2009.

Related Posts:
· The United States and the UN Human Rights Council
· Garzon, an ‘inconvenient’ judge, now sitting in the dock

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[1] Véronique Gaymard, RFI – Chronique des droits de l’homme, Paris 4 july 2009

The Burmese Junta Steps Back from Aung San Suu Kyi’s Unconditional Release

Myanmar: Appeal to stop the repression

The Nobel Peace Laureate was sentenced today to three years hard labor after the trial for breaking her house arrest. She has been confined immediately to her residence in Rangoon for a year and a half, according to judicial sources.

The authorities allowed the attendance to diplomats at the hearing, held in a wing of Insein prison complex in which Suu Kyi is detained since last May 14. On the occasion of the hearing, about two thousand troops of the security forces were deployed around the perimeter of the prison and at the entrances to the neighborhood of Insein.

The verdict, which in principle should have been delivered on July 31, was postponed until August 11 by the special court because additional time was needed to study the legal arguments connected through a referendum.

Without due process.
The trial was dominated by the secretiveness of the military regime itself, the continuing delays and obstacle course that judges demured to lawyers who defended the opposition leader.

Suu Kyi, 64, -she brings 13 of last 19 under house arrest- was charged with violating the terms of the house arrest when she sheltered two nights Yettaw, an American citizen, who is now tried for violating the rules of public safety. Yettaw, 54, who suffers from diabetes, was discharged last night by medical doctors at the Rangoon General Hospital, where he was admitted a week ago to receive care from attacks of epilepsy he has been suffering for years.

Human rights activists warned before the trial starts that a guilty verdict was inevitable in a country where more than 2,000 political prisoners are behind bars and where the court usually gives in to the generals.

The military junta governs Burma with an iron fist since 1962. The dictatorship chaired by general Than Shwe rejected early May the request made by the National League for Democracy (NLD), Suu Kyi party, for the release of their leader by her deteriorating health status. The Nobel Peace Prize party won the general elections in 1990 by an overwhelming majority, although the results have never been recognized by the generals.

EU announces more sanctions against Myanmar regime. China, Japan, and the Association of Southeast Asian Nations (ASEAN) should work for the immediate and unconditional release of Burmese opposition leader Aung San Suu Kyi.

Burma’s rulers should set her free, and start learning from her example.

Related Posts:

· A Shout to Nothing
· Aung San Suu Kyi lawyers seek emergency UN action

Tables Turned: Former ICTY Spokeswoman now before The Hague Court

Florence Hartmann, former spokeswoman for the UN’s Yugoslav war crimes tribunal stand trial before her former employer. Carla del Ponte’s former spokeswoman is charged with revealing confidential information over the trial of late Serbian leader Slobodan Milosevic.

The French journalist, stands accused of contempt before the International Criminal Tribunal for the former Yugoslavia (ICTY). Hartmann did not wish to state her plea in court, so judge Carmel Agius entered on her behalf that she pleaded “not guilty” in November 2008.

“Silencing the truth”
Hartmann has publicly accused the UN war crimes tribunal of “trying to silence the truth”. Hartmann could face a seven years prison sentence or a 100,000 euro fine if found guilty. The ICTY alleges that she disclosed confidential information in September 2007 in her book “Peace and Punishment”, as well as in the article “Vital Genocide Documents Concealed”, which was published by the Bosnian Institute in January 2008.

Shady bargain
Hartmann covered the 1990s Balkan wars for Le Monde. In her publications Hartmann wrote that the Hague prosecution was allegedly unhappy with the tribunal’s decision to accept Serbia’s request to have some portions of the state archive documents considered in closed sessions. The judges in the Milosevic case allowed Serbia to censor parts of evidence that was made public. She believes that it was precisely those pieces of evidence that were key in determining Serbia’s responsibility for the genocide in Bosnia. Hartmann argues that it was thanks to the Tribunal’s collusion with Serbia in the suppression of this crucial piece of evidence, that Bosnia was not able to draw upon the latter in its case against Serbia for genocide at the International Court of Justice (ICJ), leading to Serbia’s acquittal.
Far from punishing the perpetrators of genocide in the former Yugoslavia, the Tribunal has helped to shield them, Hartmann says. She accused judges of the Appeals Chamber, headed by former Tribunal President Fausto Pocar, of being “accomplices in manipulation organized by the authorities in Belgrade, so that the International Court of Justice, which heard the Bosnian genocide lawsuit, would be made to make the same mistakes the Hague Tribunal made”.

The tribunal says that she “knew that the information was confidential at the time disclosure was made, that the decisions from which the information was drawn were ordered to be filed confidentially, and that by her disclosure she was revealing confidential information to the public.”

In the meantime, The Hague Tribunal determined that the former spokesperson’s financial situation disabled her to finance her defence, thus the court would bare all the expenses…

Is this an intentional mistake or the ICTY judges are loosing their north?

May I be polite if I feel revolted by this incomprehensible proceeding? Should one says that it does not sound good, nor even worse, but really inacceptable. The judges in this case must decide which law is more important: the right of victims to access information that has allowed Srebrenica happen, and the right of the ICTY judges to hide this information to victims through a “private” decision? What is the purpose of the international justice if we place in the same indicted dock Florence Hartmann and Radovan Karadzic, even if the charges are different?

If you asked the Czar or Russia right before the bolshevik revolution if he thought people were ready to become a republic he would probably have said NO

If you asked Louis XVI from France, right before his head bounced into the bucket below the guillotine if people were ready to be free he would have probably said NO.

If you ask the ICTY judges if they are ready to risk a lot making a fool of themselves -awfully…. well, they would probably say NO

You can follow the proceedings in Hartmann’s case here.

Bongo Kicks the Bucket: Calm, Luxury and Consternation

President Omar Bongo of Gabon died  on Monday in a  a hospital in Barcelona, Spain, where he was reportedly being treated for cancer. He was 73.

The man was endowed with a prodigious memory, a real political intelligence and cynicism enough to ensure him the necessary longevity to become a true dictator. He has hold forty-one years.

With Bongo, Gabon turned into a strategic oil emirate for France and a stalwart heavyweight pillar of the “Franceafrique“. So, when crude prices quadrupled in 1973, Omar Bongo converted to both Islam and finance.
Money flowed like water. He had therefore the intelligence to protect the money of unhealthy lusts  by diversifying his investments. That is, putting the money aside, I mean at HIS side.

In 1975, he founded three banks:
* The Bank of Gabon and Luxembourg (BGL) in Libreville
* The International Bank (Siba) in Luxembourg
* The French Intercontinental Bank (Fiba) in Paris, the largest one.

The latter will be THE Bongo’s bank and will be chaired by one of his trusted men, Pierre Houdray, until 2000.

Let us continue…

The Head of State had a personal account and a sub-account in which his stepfather, Congolese President Denis Sassou Nguesso, had a proxy. Those accounts were fueled by (partly public) ELF French oil company by at least $40 million per year. FIBA served as a nest egg to the clan of Libreville: family, relatives, counselors and so.

This opulence is reflected in the Bongo’s real estate assets. For several years, NGOs Sherpa and Transparency International lead a court battle against the money diversion by African heads of state.They had inventoried these dictators’ “ill-gotten gains”, including their real estate in Ile-de-France (Paris region). The President of Gabon and his family figure prominently.

But the Fiba is also the tank which Omar Bongo draws from to “help” his french political friends. The ritual is immutable: when he stops in Paris, at the  Hotel Meurice, it is compulsoty to seek an audience and get the approval from the boss. A phone call to Pierre Houdray and the case is resolved.

Afterwards, one just need to report to headquarters, (avenue Georges-V in Paris) to take delivery of the grant, in cash. Bongo has actively supported Gircard d’Estaign and Jacques Chirac in the 70s, but François Mitterrand’s election in 1981, as well.

According to the men of Elf, including Andre Tarallo, the “Mr. Africa” of ELF Group, all political parties have benefited from this assistance (you know… France & Gabon, brothers in arms), with the exception of the far right National Front.

During the 90s, the proliferation of laws on the financing of political life, the system becomes more complex. More opaque too, using the resources of many tax havens (Liechtenstein, the Caribbean, Bank of New York …) which earned him the wrath of money laundering committee  from the US Congress.

The engineers of power will also be advised to take care of the ethnic balance within the country. For the time being, his family, including his children Ali and Pascaline (candidates for the succession), stand ready to defend the heritage (there’s a big money involved), even at the cost of a war of succession.

Concerns, as in old families plenty of secrets, are left to heirs. Hence, Pascaline’s Missi Dominici would be better-advised to turn into philosophers. (Ali, Pascaline, you must also be aware of the harassment and intimidation that threaten those Gabonese who dare to oppose the corrupt practices encountered there. You know of course that the massive misappropriations of state revenues contribute towards impoverishing the citizens of Gabon and prevent the emergence of normal democratic institutions.)

And Mr Sarkozy would also be well advised not to forget that “the worries of Gabon are also those of France.” Same old stuff…

Constitutional Court knocks down Hadopi

The French law that allows disconnecting Internet-users has crashed against the Constitutional Court today at 18.00. The highest authority on constitutional law condemned late this evening the controversial legislation passed a month ago by the parliament on the grounds that “internet is a component of freedom of expression and consumption” in the Declaration of Human Rights, and that justice is the only who can punish illegal downloads -not an Administrative  authority.

The European Parliament provided the same evidence, by approving an amendment that rejected an administrative authority who could decide, as provided by law now condemned, to  punish users. The text, approved with the objections of the Socialists, allowed an administrative authority so called Hadopi, order off recidivists for a period ranging from three months to one year.

It’s been a great blow to president Sarkozy. The Constitutional Court verdict means a severe blow to Nicolas Sarkozy, who defend the project tooth and nail to make it a personal matter. The law also has earned the support of a majority of artists.

The Government, which must comply with the ruling, argues that when establishing an administrative authority its target was not to overburden the courts. Immediately this evening, the French minister of culture, Mrs Christine Albanel, has just reiterated her desire to push the project even if the Government has to reform a so basic issue as the way to apply the sanction.

In short, this is the first time in many years, that the highest court setbacks so harshly the government in France. Specifically, the high court has made clear that the government has not respected the right to three fundamental principles: the trias politica separation of powers, the presumption of innocence and the freedom of internet access. It seems that Mr Sarkozy’s Government forgot that these are -and still remain- general principles of law.

And whether some like it or not, Montesquieu’s tripartite system is the model for the governance of democratic states.

Related Posts:
· Hadopi Law to Constitutional Court
· European Parliament Gives Support to Internet Freedom

In Memoriam – Tian’anmen Dark Memory

“From Mao Zedong to Deng Xiaoping, their domination is the continuation of 1,000-year feudal dynasties.” (Ding Zilin, mother of pro-democracy student Jiang Jielian killed on 4 June 1989)

Speaking of the night 20 years ago when the all-powerful authorities in China were so nervous by student protests that they brought their boot down with a mortal finality on the lives of many of those who had the impudence to question them.
On 4 June, it will be 20 years since the brutal crushing of student pro-democracy demonstrations in Tian’anmen Square, Beijing, but which also spread out in many other cities. On the night of 3 June 1989, the People’s Liberation Army moved in, killing hundreds and possibly thousands of people. China has never given a full account of what happened during the assault or who died.
It was a massacre that changed the way the world viewed China. The image of a solitary protester, still an anonymous figure, lying down in front of a tank at the edge of the square materialized the hope and futility of the movement. However, within a few months, the illusion of China’s economic growth prevailed over Western countries’ moral worries about dealing with the Communist government, and it was back to business as usual, a state of affairs that continues until today. However, the democracy movement spread internationally, and within months the Berlin Wall was down, Central Europe had left behind the chains of oppression, and governments in Warsaw Pact countries like Czechoslovakia and Poland did not decide on shooting on their own citizenry, and the world was changed.
These changes came too late for Jiang Jielian and his mother. After her son’s death, Ding Zilin attempted suicide on various occasions. Then she became provoked by her own suffering and anger.
Three months after the massacre, she met a family that had suffered a similar loss. They soon began to talk to other mothers who had lost children. There was not a “hooligan” – as Chinese officials called the protesters – among the 150 families they roughly came into contact with. The group became known as the Tian’anmen Mothers, and every year in early June they call on the government to answer for what happened to their children.
The Chinese government has defended the massacre, and ignored questions about a new report on former Communist Party leader Zhao Ziyang, who was ejected for opposing the confrontation. China Foreign department still mention it as political incident: “Facts have proven that the socialist path with Chinese characteristics that we’ve pursued is in the fundamental interest of our people and it reflects the aspirations of the entire nation,” said Ma Zhaoxu, Foreign ministry spokesman.
China’s remarkable economic rise is cold comfort for the Tian’anmen Mothers. “This massacre happened despite the concerns of the international community. Even though the Communist Party has tried to cover it up for 20 years, it is indeed a crime, and no power can change it. This crime demands justice,” said Ding Zilin.
The Tian’anmen Mothers group has three demands: “First and foremost, we want the truth. We are asking for an independent and fair investigation. The authorities should publish the name list of all victims of the 4 June crackdown, the total number of victims and the truth. They should give an account of every victim,” she said.
“Second, the authorities should compensate those victims’ families. And last but not least, responsibility needs to be introduced. The people who bear the responsibility for this tragedy should pay according to laws. Our requests are quite different from the Communist Party’s idea of ‘rehabilitation’, because we require that this issue should be handled by laws and justice,” she said.
“Our loved ones have gone. This is a fact that we must accept. Nothing will change that. But as victims’ families, we are asking for justice. As a Chinese mother, I wish this tragedy can never take place again in China, and that the authorities can not massacre civilians after this. We want them to know that killers will be punished by law. Deng Xiaoping ordered the army to shoot people, and that will remain in history forever.”
Over the years these activists have faced regular difficulties with the authorities for their activism. They have been effectively under house arrest for years; usual Communist Party membership conveniences have been revoked, most of them have been under surveillance, and were forced into early retirement. The majority were ordered to leave Beijing during the 2008 Olympics. People who have lost the most important things in their lives don’t care what happens to themselves, although the day by day live is particularly difficult for everyone, and they have come under serious pressure.

On 17 May, the families of the victims use to attend a memorial service for their loved ones, something they have done every five years since 1989. They face at all times the annoyance and exclusion from the Communist PRC system. To some extent, the indifference from abroad, as well.

Remember the victims of the Tiananmen massacre
Put a light in your window on June 4, 2009, 8:00pm (your local time)

A Shout to Nothing

Who cares about the brutal Burmese dictatorship and the slow murder of Aung San Suu Kyi?

Nor did officials give him permission to visit her, even when he was dying of cancer in 1999. For four years they could not speak to each other. He, Michael Aris, was her husband and she met him when they were young students at the University of Oxford. She studied philosophy, and he was a student of Tibetan civilization. They got two children and a life of struggle for freedom in Burma, which lead them to separation when the Burmese dictatorship finally pulled her out from the world. She could see briefly her son, Kim at the airport in Rangoon in 1999. That’s all. For many years she couldn’t get reports on him and since then, she has been unable to see him again.
Daughter of the great hero of the country’s independence, Aung San, who was killed when she was two, her biography is full of acts of great courage, as occurred in the Irrawaddy delta, when she kept on moving towards a platoon who pointed her with a rifle. Also her talks throughout the country, defying the dictatorship ban. Despite the military junta efforts to banish her, she wanted to stay near the people, thus strongly motivated by her Ghandian ideas and her Buddhist moral. “The goodness and justice will not let you escape,” according to her own words. And as a result, this fragile woman, daughter of Burmese heroes, has dedicated her life fighting for her people’s welfare. She has won elections that the tyrant did not recognize; she is house arrested and not being able to go out or talk to anyone outside.
The latest news alert on her delicate physical condition and update us on her imprisonment, along with two women, mother and daughter, who take care of her for years. What for?  She was taken to prison after a U.S. citizen, John William Yettaw, swam a mile across Inya lake to her home and stayed overnight, which violated the terms of her house arrest. She was just six days short of completing her house arrest
She owns of all the awards the world is able to bestow on freedom heroes, as the Thorolf Rafto Prize, the Sakharov Prize and the Nobel Peace Prize. But, beyond the awards, she is suffering the abandon that all fighters bear when they do not fight for causes of interest. Who is concerned by the brutal dictatorship in Burma? Who cares about the thousands of dead and prisoners, the disregard to all basic rights, the slow murder of Aung San Suu Kyi herself, and the slaughter against the Buddhist monks who rebelled in recent months? Who cares of Amnesty International reports, which deals with mass killings of peasants with machetes? Who cares about the rapists hordes, which choose women from minority ethnic groups in prison for their acts of sexual violence? Not even the plundering of international aid by the military junta during the 2004 tsunami, leaving hundreds of thousands of victims to their fate, raised a convincing wave of anger throughout the world.
The so called State Peace and Development Council is today one of the world’s most heinous dictatorships, and their crimes against the people of Myanmar are, unequivocally, crimes against humanity. But?
It is not the first time that someone cries out for such a reasons, as nobody cares writing about it -dixit García Márquez. Not the first time, either, that one makes an unfriendly complaint, once again, perhaps in the futile hope that someone bothers this drumming. It is not true that street banners noise in the world will invigorate the victim’s core reasons. People are mostly mobilized owing to possible culprits’ name. That is, if the problem is Israeli or American, then noise shouts and bursts into anger. Quite the opposite if the problem is called Sudan’s dictator or the Burmese Tatmadaw’s leader, hence, the noise becomes deafening silence.

This happens because banners no longer have international causes, only obsessions. Thanks to this silence, dictatorships as Burmese are unpunished for their crimes. And as a result of this silence, the victims as Aung San Suu Kyi shout to nothing…

Join the global campaign to free Burmese democracy leader Aung San Suu Kyi at Free Aung San Suu Kyi

Hadopi Law to Constitutional Court

Tuesday 19 May, French Socialist MEPs have lodged an appeal to the Constitutional Court, aimed to annul the Hadopi law against illegal downloading  –adopted 13 May.

Most of Communists and Green party have given support to the appeal. In a long argument, published by Les Echos website, the opposition representatives point out eleven points they consider unconstitutional.

Three main points were raised by the MPs opposed to the Hadopi law during the Parliament debates and they appear on the appeal:xxxxxxx

• “The introduction of a presumption of guilt” and “a serious infringement to the respect for defense rights and the right to an effective review on appeal” as well: In case of dispute the law provides that it is the user’s duty to prove his innocence revealing that he has ensured all necessary measures to secure his connection, i.e. installing security software agreed by the Government. MEPs consider these measures are contrary to Article 9 of the Statement of human rights and citizen, who defines the presumption of innocence.

• The “vague and blurred nature of the breach instituted by law”: Hadopi does not punish the downloading as such, but the “lack of security of Internet access”. Any line holder may be punished, even if he is not downloading himself,  but a third party (as a relative, or sb else who uses his wireless network without his knowledge). Too vague, say MPs Socialists, whom the text does not follow the Constitutional Court caselaw. The latter pointed out that the lawmaker should define very clearly the deficiencies established by law, in order to “exclude arbitrariness in sentencing.”

• The “double punishment” jeopardy and the “disproportionate punishment”: Having sent a first warning by e-mail, then a second by registered letter, Hadopi may sentence the holder with 1 year of Internet access suspension. However, the user must keep on paying his subscription while the suspension length runs, and may also be subject to criminal prosecution. Socialist MEPs consider that it hold concurrently “an administrative sanction of financial nature and a criminal punishment”, in violation of the Constitutional Court legal precedents.

Without commenting on the overall points on appeal, the conservative UMP spokesman Frédéric Lefebvre -a shy Hadopi promotor-, said that “the arts and creative world will judge the Socialists harmful intent to damage this protective text (…), whereas we show our determination to defend a lower VAT on CDs and DVDs, along the lines of what we obtained for food industry”.  The Constitutional Court now has a month to decide. Veredict expected on 19 June.

European Parliament Gives Support to Internet Freedom

The European Parliament has decided that ISPs and regulators, such as Hadopi in France, cannot restrict individuals’ access to the internet.
But this vote approving online freedom of expression is not the conclusion of the EU debate taking place between the European Parliament and Council. Since the Parliament has not agreed with the Council, the proposals will now enter the EU’s conciliation procedure where both bodies will try and reach a compromise.
The discussion came out from the modification of the Telecoms Package 2002 and specifically, one of the five directives that make up the package, called the Framework Directive. The reform cast the possibility that a three strikes measure –riposte graduée– proposed by the French President, Nicolas Sarkozy, could be adopted.
A three strikes law would kick file sharers and illegal downloaders off the internet for up to a year if they were third-time offenders. The decision by the Parliament not to adopt Sarkozy’s proposition is the second time it has come to this conclusion.
During the first reading of the proposal, Parliament formed what is known as Amendment 138. The Amendment reads, “No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, except when public security is threatened in which case the ruling may be subsequent.”
Catherine Trautman, author of the other report relating to the Framework Directive, revised the text in April to weaken the Parliament’s Amendment and secure agreement between the Council and the Parliament, before the elections in early June.
Citizen rights groups, such as La Quandrature du Net were outraged by Trautman’s changes and called on MEPs to side with the previous version of the report, which contained the amendment.
Now the groups have welcomed the decision of the MEPs; i.e. Jérémie Zimmermann, co-founder of La Quadrature du Net, described it as a “victory”. “A formidable campaign from the citizens put the issues of freedoms on the internet at the center of the debates of the Telecoms Package,” (…). And “the massive re-adoption of amendment 138/46 rather than the softer compromise negotiated by rapporteur Trautmann with the Council is an even stronger statement,” he concluded.

Amnesty International reports the impunity of the French police

“Unlawful killings, beatings, racist abuses and the excessive use of force on behalf of police officers are prohibited by international law. But in France they seldom make the object of efficient investigations and their authors are not driven in front of justice “. These are the conclusions displayed in a report introduced on Thursday by Amnesty International. This situation had as result an “unacceptable de facto impunity “, according to David Diaz-Jogeix, the manager of program for Europe and Central Asia.
AI assures of an increasing tendency to the fact that the victims or the witnesses of these police ill-treatments should end up being charged with defamation or insulting a police officer. “The huge majority of complaints come from citizen immigrants or foreigners “. “Internal disciplinary investigations are not independent or impartial, meaning the odds are stacked against complainants” as well.

According to informations got from  French authorities  – and that the organization qualifies as “incomplete ” since French government did not facilitate further accurate data—   only 16 out of 663 cases arising from complaints in 2006, got responsible dismissal. In 2005, the ratio was 8 out of 639.
Most cases are “frequently closed without investigation”. Emphasize is made to enhance the French citizenship to recover confidence on police officers. Prior to that, French authorities have to put an end to this impunity.