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.

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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 21, 2006

Charles Taylor to the ICC

Posted in criminal law, international law, war crimes at 9:32 am by thelawthoughts

I hope Charles Taylor has a nice holiday in Den Haag. Because now that he is being tried for war crimes, he possibly may not have the option of too many holidays in the coming years.

June 16, 2006

More ICC

Posted in criminal law, international law, war crimes at 2:53 am by thelawthoughts

It seems also that the ICC is moving on Darfur.

I'm not a big fan of the complementarity principle, which basically says that if a national government is prosecuting or in the process of investigating war crimes, the ICC can't act.

I have always seen this as the most obvious way a country can block the jurisdiction of the court, by setting up courts to try people domestically which have no real power, or are corrupt, or hand out lenient sentences.

This is especially dangerous where a government is accused of war crimes, as it of course most often is. The leaders of Sudan simply have to 'try' each other to effectively prevent the ICC from acting.

Seems silly to me. 

Charles Taylor’s Trial

Posted in criminal law, international law, war crimes at 2:46 am by thelawthoughts

Liberia's ex-President, Charles Taylor, might be tried in The Hague, rather than in Sierra Leone

The trial of such an important alleged war criminal is just the type of case the ICC needs to establish itself as a legitimate, competent institution, which can be trusted to establish the guilt or innocence of alleged war criminals.

The type of leadership shown by the UK, which has said it might allow Taylor to serve his sentence in the UK, is a further stamp of legitimacy for the Court.

Such leadership from a country that needs to reestablish its international law credentials after the Iraq debacle can only leave the US, should it fail to support the court, even more in the cold than it already is. Hopefully, the growing strength of the ICC will mean that the rule of law in international affairs might grow in strength alongside the court.

Without a link, recent reports suggest that the US is moving towards a more accepting stance on the ICC, whilst still not accepting the court's jurisdiction over its own soldiers. That's a start.

June 11, 2006

Bosnian War Criminals

Posted in criminal law, war crimes at 3:37 am by thelawthoughts

It might take a lifetime to catch all these animals, but one by one, alleged Balkan war criminals are being captured and handed over to the ICTY.

Despite the reasonably slow progress in prosecuting these people, nevertheless the process must be pursued. If these people did half of what they are accused of, then the money being spent on their prosecution is well spent.