August 21, 2005

Saddam and execution

Posted in Uncategorized at 2:34 pm by thelawthoughts

It is being argued by Iraqis (link) that Saddam aides should not be executed.

After WW2, Churchill wanted the Nazi leaders to be executed without trial. Roosevelt insisted they be given speedy, but fair trials, presided over by Robert Jackson, who went on to become an ICJ judge. This insistence was based upon the idea that the victors must be seen to be dispensing fair justice and not summary executions.

Whether these trials were indeed fair is now irrelevant. However, executing the Nazi leaders was not necessarily the best example to set. The need for retribution, both emotional and political, can be perfectly understood. That does not mean execution is the answer. In some ways, I imagine the execution of the Nazis provided a bit of closure for all.

We are moving away from the acceptability of execution. Hypothetically, if it were just about any other country, and not the US who invaded Iraq, I doubt very much whether there would be provision for the death penalty in the new Iraqi Constitution. Surely, to provide some legitimacy for the new government, and to distance itself from the awful practices of the previous regime, the Iraqi government would be better advised to hold back from executing willy-nilly the leaders of Saddam’s regime.

Yes, they engaged in abhorrent behaviour. Does that mean we should descend to their level and execute them too? Unfortunately, I can’t see this view gaining too much traction in the domestic sphere, or for that matter in the international community. People need Saddam to be executed, for political and emotional reasons, too badly for him not to be.

August 19, 2005

You want journals you say?

Posted in Uncategorized at 4:15 pm by thelawthoughts

I thought I had already posted this link – turns out I never did!

Basically, Simon Evans has plugged us all in to the REAL information superhighway, the contents pages of – that’s right – 1048 legal journals. Glory be.

Each journal has a contents page feed, plug your faves into your NewsGator or BlogLines and away you go. Did you ever want to know this much stuff??

Article 98 Agreements – US rejection of the ICC

Posted in Uncategorized at 2:23 pm by thelawthoughts

There is an interesting discussion going on over at Opinio Juris, in which I am participating. The issue of US rejection of the ICC is crucial in the administration of international criminal justice. Its Article 98 Agreements, in effect agreements preventing another State from exercising the ICC jurisdiction in relation to US military personnel, are a critical plank of that rejectionist policy.

Go have a quick read if you have nothing to do!

August 17, 2005

If you can’t ‘google’ yet, better learn fast

Posted in Uncategorized at 4:15 pm by thelawthoughts discussed this case in the US, which held that the reasonable person would use Google when trying to find someone in order to serve notice on them.

It seems that a person was required to serve notice upon another. They attempted to serve the person by sending notice to two addresses, both of which turned out to be ‘former’. The judge held that the reasonable person, where serving notice, would use Google to locate the person, or at least somebody close to the person, or their workplace, or whatever.

A little while ago I was trying to find a friend in New Zealand, whose email address I didn’t have. I typed his name into Google and there he was, second or third link from the top; his name was listed on his law firm’s webpage. It is NOT hard to find people directly, let alone something about them which would assist your investigation further. I think it is a positive step to make people be proactive when serving notice, however, incorporating a standard like ‘you must use Google’ is a pretty dangerous precedent.

What would happen, for example, if Google goes bust in the next five years? Would the reasonable person search MSN as well? Yahoo!? Holding that a person trying to find someone must use a particular finding service is a bit rough, in my mind. I won’t even go into the economic stuff, the anti-competitive encouragement of a particular company’s services over another’s.

More importantly than that is the imposition of a particular technological skill in the legal profession. Now, I know it isn’t hard to use Google. I know it isn’t hard to learn. However, this is from the perspective of someone who has grown up using the technology and is familiar with it. There are plenty of people I know in the legal profession who aren’t great with computers, let alone investigative methods via search engines. Indeed, encourage the use of technology somehow, but you can’t force people to learn something like that. What about law firms who aren’t even connected to the internet? Sounds funny to us, but I can tell you there are plenty who are not.

You might think I am being a stuffy old ‘we should all still be using typewriters’ kind of person. I’m really not. However, this reminds me of the current debate about e-Filing, in which some States in the US have made it compulsory to file court documents online. Great idea, online filing. But compulsory? A bit harder to justify. Maybe the fee could be halved for online filing to encourage its use, but making it compulsory is, in my mind, discriminatory.

There is no cost incentive to be generated in the case of search engines, though. There must be some middle ground, where the use of valid search methods is encouraged, without imposing the burden on those who genuinely cannot satisfy such an obligation. I can’t use an i-Pod. What if it were compulsory to podcast oral argument in trials? Sounds stupid, but it isn’t exactly inconceivable! Should I therefore be forced to use an i-Pod? Or is there some other incentive which can be provided so technophobes are willing to take up the challenges of ‘googling’?!

August 14, 2005

The UN and Genocide

Posted in Uncategorized at 9:16 pm by thelawthoughts

Oxfam wants the US, Russia, India and Brazil to support changes at the UN which would force it to react more quickly to genocide.

To be perfectly honest, I am feeling a bit UN skeptical at the moment. Everything the Security Council needs to act quickly in response to genocide is in the UN Charter. I would argue that generally, genocide is a sufficient threat to peace and security for the Security Council to impose sanctions under Ch 7, or use force to restore order. If genocide is not serious enough to trigger these provisions, then what is? Can we only restore peace and security when a country has invaded or is about to invade another?

I am of the opinion that no amount of words will ever make the UN act quickly in response to acts of genocide, UNLESS there is a political, economic or other benefit to be had. How many genocides have we had in (my) living memory? As a start, Rwanda, Bosnia/Serbia, Sudan/Darfur, the list goes on. My question and the point of this post is this: if the UN Charter provided something like ‘all Member States must act to prevent genocide in whatever form against whatever group in whatever circumstances at whatever time’, do you really think any of the abovementioned examples would have been prevented? I am extremely doubtful.

Now, these words could be replaced by anything, my point is that even if the Charter requires action at the drop of a hat, it’s not going to happen. The Charter requires lots of things, and in some arguments is now customary international law. So what? That doesn’t mean its provisions will ever be enforced. It doesn’t mean that States will have no option but to act when genocide occurs.

OF COURSE States need to act with all possible speed against not only genocide, but situations which could develop into genocide. The problem is, States will not act, regardless of whether they are required to do so, unless there is sufficient political or economic pressure placed on them by the event or other nations. That pressure is not going to come from our present UN Charter, now or in the future.

August 12, 2005

Citation of international opinion

Posted in Uncategorized at 2:22 pm by thelawthoughts

Apparently, Justice Breyer is in favour of citing international authority. Not because it is correct, but because it can give judges in developing judiciaries ‘a little boost’. So, the argument seems to be, where a country is struggling to establish, say, an independent judiciary, we should cite their law because then they will have a huge rush of pride and their countrymen will say ‘oooh, look at XYZ J, the US Supreme Court is citing him, he must be a really good judge’.

Now, I can see where he is coming from. However, if I were a person who, or even a director of a company which had its case before the US Supreme Court, or High Court of Australia, I would hope that the law being cited was (1) relevant (which I imagine Breyer J would be doing!!) and (2) relatively established (which I am doubtful of in the case of a developing judiciary), unless of course the case was completely novel. I would be upset if the law of, say, Botswana (a reasonably successful developing country) was cited in opinion against my submission in the Court. The only way I would not be extremely aggreived would be if the law being cited is exactly the same as the law in the country to which I am subject. However, if the law of Botswana in our example is parroting the law of the US, or Australia, then I would hope the case was decided on that law (ie national law).

What I guess I am saying is I would only approve of this kind of citation if it had no real effect on the outcome of my case. I think convergence in international legal systems would generally be a good thing, however I would hate a citation in my case to be used to ‘make them feel good’. Yes, cite international precedent, but not just to assist in the establishment of an international judicial system.

By the way, is there any problem with the idea of ‘judicial imperialism’ here? Is it right for judges to cite international judges to ‘spread the word’ or to ‘support the establishment of particular (assumed good) cultural institutions’? The motive for citation I think is especially important.

August 8, 2005

A Fine Mess

Posted in Uncategorized at 12:02 am by thelawthoughts

What, are you going to prosecute?

August 7, 2005

Patently not sexy

Posted in Uncategorized at 10:39 pm by thelawthoughts

Quite possibly the funniest thing I have seen all week.

Caution, the link contains graphic sexdollness. Not recommended for kiddies.