August 3, 2006

Israel and Lebanon

Posted in international law, politics, terrorism, UN at 1:28 am by thelawthoughts

I know virtually nothing about the current conflict, apart from the fact it is happening. However, the question that strikes me first is the following:

How can we, as an international community, stand by and let the US support the actions of a country that makes no attempt to prevent civilian casualties in such a conflict?

That is, whilst the US is the most powerful country in the world, surely the rest of the world has enough guts to say ‘Look, you can’t support a regime that bombs and kills children whilst pretending they are seeking military targets’.

Am I the only one thinking that?

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June 30, 2006

David Hicks and Illegal Commission

Posted in criminal law, international law, politics, terrorism, war crimes at 12:29 am by thelawthoughts

I am going to put this post up before I go so that it will stay on top for the 5 weeks I am gone. Warning, this is a rant.

The world woke today to the news that the US Military Commissions the American governments was going to use to try ‘illegal combatants’ are illegal. Thank goodness.

I wasn’t even going to blog this, because the coverage is so much more insightful and useful elsewhere (see Opinio Juris and SCOTUS Blog eg), but what really pisses me off is our government’s reaction.

David Hicks MUST BE TRIED NO MATTER WHAT. He has been held without trial for four years now. When are they going to GET ON WITH IT? The treatment of David Hicks by the US Government and our own government’s pathetic response quite astounds me. They should be demanding a trial now, or else a return of David Hicks to Australia so he can be tried by us. Or send him to the ICC or SOMETHING, but GET ON WITH IT. If he is guilty, so be it, lock him up. If not, he should be on the first plane home, a free man.

Yes, we go nuts trying to get prisoner exchange agreements for poor Schapelle Corby and the Bali Nine, but we won’t go into bat for a bloke who has been taken out of the jurisdiction in which he was found, placed in detention in conditions likened to a Soviet gulag, and left by our government to rot, despite the fact that other allies have demanded their nationals be returned to their jurisdiction. Saudis and Yemenis have been allowed home, but not Australians.

Why? Our government is more worried about posturing and pandering than the rule of law. And when governments ditch the rule of law, mark my words, bad things happen. Like torture, like people being held incommunicado, like interrogation without the presence of lawyers.

Short of the genocide, kind of sounds like Iraq under Saddam Hussein, really.

June 26, 2006

Article 98 Agreements

Posted in criminal law, international law, politics, terrorism, UN, war crimes at 12:48 am by thelawthoughts

Opinio Juris notes that the US might be reconsidering its position on bilateral immunity agreements, whereby the US forces smaller countries to agree not to surrender US nationals to the ICC.

This would be great news. I argued in an essay that the agreements were illegal at international law, on three grounds, two relatively weak and one I believed quite strong. The weak grounds were that the agreements defeat the object and purpose of the statute, which is a weak argument because this ground of objection ceases to have effect once a country ratifies the treaty. Therefore, the more countries ratify, the less countries there are for this doctrine to operate between.

The other weak ground was that of universal jurisdiction, which is the idea that the ICC has universal jurisdiction over the crimes prosecuted under the Rome Statute, assuming their status as jus cogens offences at international law. I hope that this argument becomes stronger in future, because I firmly agree with Geoffrey Robertson's argument that no rogue leader will think twice about committing war crimes until there is a credible threat of their prosecution.

The strongest argument for the illegality was that an interpretation of Article 98 which allowed these agreements to be in force was not the intended interpretation of the treaty signatories. In effect, States are prohibited from acting in a way not contemplated by the drafters of the treaty, and I did not believe that agreements which allowed a State to circumvent the entire operation of the court were intended to be legal under the Rome Statute.

All this is nice in theory, but unless the US supports the ICC and allows its nationals to be prosecuted along with all others, it will lack legitimacy. I have noted this week the coming trial of Charles Taylor, which is great. However, whether these agreements are illegal or not, the US will use them and abide by them, and force others to also, until they decide not to.

This, of course, is the problem of powerful states in areas of international law in which they do not wish to be bound. A visionary US would realise that its interests are best served by having a legitimate international court in which to try alleged war criminals, rather than the kangaroo courts they have set up domestically.

June 11, 2006

Guantanamo Suicides ‘Warfare’?

Posted in terrorism at 7:17 am by thelawthoughts

Are these idiots serious? The US military at Gitmo have said that the three suicides the other day were a calculated act of warfare, not an act of desperation.

What. Utter. Wankers. 

June 9, 2006

Hypocritical Murder

Posted in criminal law, murder, politics, terrorism at 9:11 am by thelawthoughts

Can somebody tell me why it is ok for the American military to murder people, but it is not ok for those same people to murder people? Why is nobody reporting the irony in George Bush's comments, which ran something like 'this violent man will murder no more'?

Now, I am not pro-terrorist and I don't care about numbers or scale. Zarqawi was an animal, I am sure. What I can't stand is a group of people getting up and saying that by their own murder, they have acted virtuously in preventing the murder of others. Why should governments be able to assassinate people, then blow up their photo on CNN and denounce them as murderers?

Murder is murder, regardless of which person commits it. I would even argue that state organised and sponsored killing is much worse than murder by a private citizen.

June 8, 2006

No Legal Aid for ‘Terrorists’?

Posted in legal aid, terrorism at 8:13 am by thelawthoughts

Reports are around that terrorism suspects' lawyers have had their legal aid funding withdrawn, because the lawyers must submit to security clearances.

This is a great example of how bad laws, passed in a hurry, have unintended consequences.

It is unforgivable that in a society such as ours, legal aid can be withdrawn from defendants because the risk to the funding body of having a case stopped is too high to make the case viable for that funding body. Security checks for the lawyers is crazy. They are lawyers. Their security status has no bearing on their ability to defend a prosecution. What, are they worried the lawyers are going to blow up the Supreme Court?

If they are dodgy lawyers who are a threat to security, how on earth does this affect whether they should represent a defendant? Being dodgy and not undergoing a security clearance didn't stop Zara Garde-Wilson or George Defteros defending clients. The security status of the lawyer has no bearing on the conduct of the trial.

Legal Aid should not be put in a position where it is willing to provide assistance to defendants who, in this case at least, are generally assumed guilty regardless of their trial but is forced to consider the wasted costs involved in a negative securityclearance.