Saturday, February 28, 2009
In today’s New York Times, Ireland’s dire economic situation leads the journalist to question whether the country is about to become a new “Iceland,” that is, whether the Irish State may default on its debt.
This blog is obviously not the place to discuss whom to blame for the economic mess Ireland finds itself in, and the abject corruption the ongoing recession has revealed. From a legal point of view, Ireland’s financial situation raises at least one interesting question: Are the countries belonging to the “eurozone” – 16 EU Member States currently share the euro as their currency – legally obliged to help one another. To put it concisely, the answer is no.
According to Article 103 of the EC Treaty that some have recently labeled the “no bailout clause”:
“(1) The Community shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of any Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project. A Member State shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of another Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project.
(2) If necessary, the Council, acting in accordance with the procedure referred to in Article 252, may specify definitions for the application of the prohibition referred to in Article 101 and in this Article.”
In the same Chapter of the EC Treaty dedicated to Economic Policy, another provision is worth noting as it moderates the impact of the no bailout rule by allowing financial assistance in exceptional circumstances.
Article 100(2) EC provides that “Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, acting by a qualified majority on a proposal from the Commission, may grant, under certain conditions, Community financial assistance to the Member State concerned...” The question, of course, is whether Ireland’s current financial difficulties can be said to be caused by “exceptional occurrences beyond its control…” This obviously calls for a political judgment rather than a legal one.
As a matter of principle, the lack of common liability for national state finances is not necessarily a bad thing as individual countries could be otherwise tempted to pursue irresponsible expansive policies knowing that the “others” will eventually have to bail them out. It is also important to point out that this situation directly reflects the wish of most national governments keen on preserving their fiscal sovereignty. This is why it is particularly laughable to blame “the EU” for a lack of a coordinated or effective response to the current crisis when its own constitutional framework precludes any genuine EU initiative.
With respect to Ireland, it is particularly ironic that its economic survival is more than likely to depend on the good will of its EU’s partners, and in particular Germany. Regardless of the "no bailout clause," it seems that the German government – lucky Irish – has now come to its senses. Angela Merkel’s government now appears prepared to come to the rescue but the Irish government will certainly have to pay a price for its narrow-minded and at times arrogant pursuit of what it perceived to be the national interest in the past few years (see for instance the debate on the harmonization of corporate tax rates in the EU).
Less than a year ago, a majority of Irish citizens voted no to the Lisbon Treaty and more than a minority had ludicrous concerns about abdicating their “national sovereignty.” What these voters failed to understand is that Irish sovereignty is, in practice, a meaningless slogan. As I argued elsewhere, while it is true that Irish membership of the EU membership has had an impact on its de jure sovereignty, it has dramatically increased its de facto sovereignty. Outside the EU, Ireland’s power to shape the norms governing its trade or to promote its culture and values would have certainly been almost nonexistent. To undermine the EU when you are from a small Member State is really like shooting oneself in the foot. It is no surprise that Iceland is now desperately trying to secure EU membership and that some EU Member States who do not belong to the eurozone are seriously debating whether to adopt the euro to “shelter” themselves from future crises.
Emmanuel Rukundo, a former chaplain in Rwanda’s armed forces, was sentenced this week by the International Criminal Tribunal for Rwanda to 25 years for the abduction, murder, and sexual assault of Tutsi civilians in Rwanda in 1994. Rukundo was found guilty of genocide, murder as a crime against humanity, and extermination. According to the Tribunal, Mr. Rukundo, with soldiers of the Rwandan army, abducted and killed a woman referred to as Madame Rudahunga, and severely beat her children. The Trial Chamber found without reasonable doubt that Rukundo was present during the commission of the crime and the soldiers acted under his authority. On at least four occasions Mr. Rukundo was found to have an integral role in the abduction and subsequent killings of Tutsi refugees from the St. Leon Minor Seminary, and, on one occasion, to have sexually assaulted a young Tutsi woman. In sentencing Mr. Rukundo to 25 years (with credit for time already spent in prison), the ICTR said it considered his stature as a priest and an educated person as aggravating factors, stressing that “the accused was found to have abused his moral authority and influence.” Rukundo had served as a parish priest in his native Gitama prefecture before becoming a chaplain in the armed forces in 1993. He was arrested in Geneva Switzerland in 2001, at the request of the ICTR.
Friday, February 27, 2009
The U.N. Security Council extended for one more year the mandate of the peacekeeping mission it sent to help Timor-Leste after violent clashes in 2006. Click here to read Security Council Resolution 1867.
Here's a press release from the United Nations on convictions (and one acquittal) at the International Criminal Tribunal for the Former Yugoslavia.
UN TRIBUNAL CONVICTS FIVE TOP SERBIAN OFFICIALS OF WAR CRIMES IN KOSOVO
The United Nations war crimes tribunal set up after the Balkan conflicts of the 1990s today convicted five former high-ranking Yugoslav and Serbian officials for crimes against humanity, while former Serbian president Milan Milutinović was acquitted of all charges. Today’s judgment is the first of the International Criminal Tribunal for the former Yugoslavia (ICTY) for crimes by Yugoslav and Serbian forces against Kosovo Albanians during the 1999 conflict in Kosovo.
Prosecutors charged the six defendants with crimes committed during a campaign of terror and violence that aimed to change the ethnic balance in Kosovo to ensure Serbian authorities’ control through criminal means, including deportations, murder and forcible transfers. Former Yugoslav Deputy Prime Minister Nikola Šainović, Yugoslav Army General Nebojša Pavković and Serbian police General Sreten Lukić were each sentenced to 22 years in prison for crimes against humanity and for violating the laws or customs of war. Meanwhile, Yugoslav Army General Vladimir Lazarević and Chief of the General Staff Dragoljub Ojdanić were found guilty of aiding and abetting the commission of a number of charges of deportations and forcible transfer of the Albanian population, for which they each received 15-year sentences.
The trial chamber found, after analyzing evidence, that there was a broad violence campaign against Albanian civilians in Kosovo during NATO airstrikes in the Yugoslavia that began on 24 March 1999. This campaign was carried out by army and Interior Ministry police forces, under the control of Yugoslav and Serbian authorities, the ICTY found. It was former Yugoslav president Slobodan Milošević, not Mr. Milutinović, who had direct individual control over the Yugoslav Army during the NATO campaign, the Tribunal said, acquitting the latter on all counts.
The Special Tribunal for Lebanon -- set up by the United Nations to try those responsible for political killings in February 2005 -- will begin its work this Sunday, March 1, 2009. The probe into the killings is being carried out by the International Independent Investigation Commission (IIIC), headed by Daniel Bellemare, a Canadian prosecutor. Mr. Bellemare will assume office as Prosecutor of the Special Tribunal on March 1st and continue his investigations from The Hague in the Netherlands, where the court is based. A special ceremony will be held in the Netherlands this Sunday to mark the start of the tribunal.
The judges of the trial and appeals chambers will assume their responsibilities on a later date to be determined by the Secretary-General of the United Nations, in consultation with the President of the Special Tribunal. The courtroom for the trials is expected to be ready for use by early 2010.
Thursday, February 26, 2009
Yesterday, the Special Court for Sierra Leone convicted three persons of crimes against humanity, including mutilation, rape, sexual slavery, forced marriage, and forced enlistment of child soldiers. The Special Court was modeled on the Nuremburg Tribunal to try persons accused of atrocities committed during Sierra Leone's 11-year civil war, which ended in 2002. The three convicted rebel leaders were Issa Sesay, Morris Kallon, and Augustine Gbao. Five other persons have already been convicted. About a half-million people were victims of atrocities committed during Sierra Leone's civil war. Illicit diamond sales fueled the conflict, as depicted in the movie, Blood Diamond. The Special Court decided to focus its resources and attention on bringing the highest level commanders to justice. According to the Special Court's Chief Prosecutor, Stephen Rapp, the convictions show that these kinds of crimes will not be tolerated. Some have criticized this strategy, however, because it means that many more persons guilty of the violence were left unpunished. The conviction of these three defendants concludes the work of the Special Court for Sierra Leone.
The Association of American Law Schools Section on Academic Support has issued a call for its 2010 AALS Annual Meeting in New Orleans, Louisiana, during the AALS Annual Meeting to be held January 6-10, 2010. The theme of the 2009 Section's workshop will be: "Transforming Learning in the Classroom: the 21st Century Law Professor." The Section will showcase how professors are transforming the learning environment of their classrooms through innovative and creative methods. Many of these methods have their roots in traditional academic support tenets of varying lesson plans to reach different learning styles, providing feedback throughout the semester, assessing students in creative ways, engaging students both in and out of the classroom, and encouraging students to take responsibility for their own learning. The committee requests proposals that demonstrate modern
classroom and teaching techniques including but not limited to: active learning activities, teaching assessment procedures, exam drafting, skills development in doctrinal courses, and innovative lesson plans. The Program Committee will give preference to presentations designed to engage the workshop audience, so proposals should contain a detailed explanation of both the substance of the presentation and the interactive methods to be employed. In addition, they would like to highlight talent across a spectrum of law schools and will look for variety in presentations and presenters. If you do not have a proposal to submit, but are interested in participating in a presentation, please contact Emily Randon (see below), as assistance with the overall workshop is always welcome.
Based on participant numbers for the last several years, the organizers anticipate over 100 people attending the program. To assist the presenters in the interactive piece, the program committee members and other volunteers will be on hand to act as facilitators with audience members.
Proposals must include the following information:
1. A title for your presentation
2. A brief description of the objectives or outcomes of your presentation.
3. A brief description of how your presentation will support your stated objectives or outcomes.
4. The amount of time allocated for your presentation and for the interactive exercise. No single presenter should exceed 45 minutes in total time allowed. Presentations as short as 15 minutes will be
5. A detailed description of how the presentation will be interactive.
6. Whether you plan to distribute handouts, use PowerPoint, or employ other technology.
7. A list of the conferences at which you have presented within the last three years, such as AALS, national or regional ASP or writing conferences, or other academic conferences. (The committee is interested in this information because we wish to select and showcase seasoned, as well as fresh, talent.)
8. Your school affiliation, title, courses taught, and contact information (include email address and telephone number).
9. Any articles or books that you have published describing the lesson you will be demonstrating.
Send proposals by Monday, March 9, 2009 to Prof. Emily Randon, University of California, Davis School of Law. The ASP Section Program Committee consists of Emily Randon, Robin Boyle Laisure, Hillary Burgess, Barbara McFarland, Kathy Garcia, and ASP Section Chair Pavel Wonsowicz.
Hat tip to Hillary Burgess
President Obama has nominated Ron Kirk, the former mayor of Dallas, to be the next United States Trade Representative. His confirmation hearings are reportedly scheduled for the week of February 26, 2009. Reports are now also surfacing (on the BNA International Trade Reporter) that one of Kirk's likely deputies will be Demetrios J. Marantis, who is currently the majority international trade counsel for the U.S. Senate Finance Committee.
The Supreme Court of Pakistan ruled this week that opposition leader Nawaz Sharif should be barred from holding elected office. The ruling has created a political crisis as Mr. Sharif called for nationwide protests and the president imposed executive rule in the province of Punjab. The Pakistan Supreme Court disqualified Mr. Sharif from holding public office because of a criminal conviction connected to the military coup that ousted him in 1999. He had served as prime minister twice in the 1990s. Click here to read more from the New York Times.
An article from the National Law Journal notes that several leading law schools are rethinking their grading systems and deciding to move from letter grades to pass/fail grading. Harvard and Stanford are among the schools mentioned in the article that are moving away from traditional letter grades. Click here to read more.
Wednesday, February 25, 2009
On Friday, March 13, 2009, the University of California Davis Journal of International Law and Policy is hosting a symposium focusing on reevaluating the use of alternative dispute resolution in international business and commercial settings. The title of the symposium is: "Overhauling International Dispute Resolution: Challenges and Potential Solutions to International Dispute Resolution in the 21st Century." Representatives from government, academia, and priviate practice will participate in the discussions. The symposium will be held at the UC Davis School of Law in Davis, CA beginning at 9 am. For more information, please click here.
The Pacific McGeorge School of Law, by unanimous faculty vote, has converted its legal research and writing program into a two-year program entitled “Global Lawyering Skills.” The new program will begin in the fall semester of the 2009-2010 academic year. Students will have two years of required legal research, writing, and oral advocacy instruction. The first year will focus on case analysis, objective legal writing, client counseling skills, contract drafting, U.S. legal research, and international legal research. The second year will focus on persuasive written and oral advocacy, including trial briefs and arguments, appellate level briefs and arguments, which culminate in a campus-wide moot court competition. It will also includes further instruction in U.S. and international legal research. The school plans to add additional components in drafting pleadings, discovery, transnational contracts, and other skills-based instruction.
It is encouraging to see a law school rethink its legal writing mission to include international law research and subjects such as transnational contracts. Because our students face an ever-increasingly international world, our legal education must include international law and international legal research as part of what our students will need to succeed.
Hat tip to Stephanie J. Thompson of the Pacific McGeorge School of Law
Jordan Paust of the University of Houston Law Center has uploaded a new version of his article on liabilty for torture. The paper addresses cases and other material confirming that waterboarding and related inducement of drowning or suffocation, use of dogs to terrorize, death threats, and the cold cell and related inducement of hypothermia are "torture" as well as types of criminal liability that can pertain for certain former government officials. Here's the description of his paper on SSRN:
This draft article addresses the absolute and peremptory prohibition of torture and other forms of ill-treatment under treaty-based and customary international law; crimes of torture and duties of states to either initiate prosecution or extradite all persons of any status who are reasonably accused; four general types of criminal responsibility; the right to fair compensation; the definition of torture and related criteria; types of unlawful tactics and serial criminality authorized and abetted by President Bush, Vice President Cheney, and others in the Administration; the need for new U.S. legislation and presidential withdrawal of void putative treaty reservations; and the unavoidable constitutionally-based duty of President Obama to recapture the rule of law and to end seven years of impunity by either initiating prosecution of or extraditing all persons who are reasonably accused of such international criminal activity.
Click here for the link to SSRN, from which you can download the most recent version of the article.
The International Journal of Transitional Justice invites submissions for its 2009 special issue titled "Whose Justice? Global and Local Approaches to Transitional Justice" to be guest edited by Professor Kimberly Theidon, Associate Professor of Anthropology, Harvard University and Executive Director of Praxis Institute for Social Justice. Papers may address topics such as the definition of transitional justice and its goals, the relationship between international justice mechanisms and local processes, the role of stakeholders, how local justice mechanisms might be incorporated into state and international interventions, and the role of ritual in accessing guilt and administering various forms of justice. The deadline for submissions is April 15, 2009. Papers should be submitted online at the IJTJ webpage. For questions or further information, please contact the Managing Editor by clicking here.
A symposium to assess the official report of the Genocide Prevention Task Force will be held on March 13, 2009 at the Woodrow Wilson International Center for Scholars. Entry to the symposium is free, but pre-registration is required. Call 416-250-9807 if you wish to attend. The papers presented at the symposium will be published in the Spring 2009 issue of Genocide Studies and Prevention.
Tuesday, February 24, 2009
Each year, the Irish Centre for Human Rights (ICHR) at the National University of Ireland, Galway offers two remarkable summer school programs. This year, the ICHR summer schools will run consecutively, beginning with the Minority Rights summer school from 14-19 June and followed by the International Criminal Court summer school from 21-26 June.
More information is available here.
Shahram Dana of The John Marshall Law School in Chicago has posted a new article on Advancing International Law: Rethinking Nulla Poena Sine Lege in International Criminal Justice. Here's the description of the article:
Although ranking among the most fundamental principles of criminal law, nulla poena sine lege has received surprisingly little attention in international criminal justice. Indeed, it may be considered the 'poor cousin' of nullum crimen sine lege, which in comparison has been the subject of numerous articles, books, and judgments. Given that they work in tandem as principles of legality, the limited scholarship on nulla poena sine lege is difficult to justify, although not without explanation. It has not, for example, escaped attention that nulla poena 'affects only proven criminals' while nullum crimen sine lege 'protects the mass of respectable citizens'. While most criminal justice systems have made considerable efforts over the years to close this gap, international criminal law has not. The potential contribution of nulla poena sine lege has been largely overlooked in the context of international prosecutions by policy makers, drafters, and judges. Likewise, there exists a lacuna in academic scholarship on this subject. Under-theorization of nulla poena in international criminal justice stalls the maturation in international law of this long standing criminal law principle, keeps dormant its contribution to justice, and challenges the legitimacy of international punishment. This article aims to redress this imbalance by developing the normative content of nulla poena sine lege under international law. The study's methodology deconstructs the nulla poena sine lege maxim into its underlying legal principles, investigates sources of international law pertaining to each principle and, reconstructs an international nulla poena sine lege maxim. The article hypothesizes that a fuller appreciation of the function and purpose of nulla poena sine lege, gained through an elucidation of its underlying legal principles, can facilitate a more penetrating analysis of its normative development in international law. Measured against the international standard for nulla poena, the article critically evaluates the statutes of international criminal courts and the emerging international sentencing jurisprudence for mass atrocities, genocide, crimes against humanity and war crimes.
The United Nations Human Rights Council adopted a resolution on the threat that the global financial and economic crises pose on the realization of human rights and development goals. Adopted by a vote of 31 for, none apparently against, and 14 abstentions, the resolution called for an equitable, transparent, and democratic system to broaden developing nations’ participation in decisions regarding the international economy. The 47-member body, meeting in its 10th Special Session, also expressed grave concern that the twin crises could jeopardize progress toward achieving the Millennium Development Goals (MDGs), eight ambitious anti-poverty targets by the deadline of 2015.
The International Criminal Tribunal for Rwanda (ICTR) has opened two new information centres in the south of Rwanda. They join ten other similar sites set up throughout Rwanda to provide genocide-related information to promote peace and security in the region. Beginning in April 1994 in Rwanda, more than 800,000 ethnic Tutsis and Hutu moderates were massacred, mostly by machete, during a period of less than 100 days. Click here to read more about the ICTR.
The Center for Advanced Holocaust Studies of the United States Holocaust Memorial Museum supports scholarship in the field of Holocaust studies; promotes the growth of Holocaust studies at North American universities and the development of strong relationships between American and foreign scholars of the Holocaust; and seeks to ensure the ongoing training of future generations of scholars specializing in the Holocaust. The Center is now accepting applications for graduate student summer research assistants. Recipients will gain experience in conducting archival and/or library-based research, translating and organizing selected archival sources for publication, and writing and editing texts under the supervision of the Center's scholars. In addition to their involvement in these research projects, recipients will participate in the broad range of scholarly and public education programs offered by the Museum during the summer months.
Applicants must be enrolled in or admitted to a graduate program at a North American university. The Center is unable to provide visa assistance for non-U.S. citizens. Applicants must have basic knowledge of the Holocaust, experience in conducting archival or library research and the ability to work as part of a team. In addition to English, fluency in one or more of the following languages is desired: German, Russian, Polish, Romanian, Hebrew, Yiddish, French, Dutch, Hungarian, Slovak, and/or Croatian. Each assistantship will last for up to three months during the May-August timeframe. Awardees will receive a stipend of $2,500/month. The Center will also provide funds for one roundtrip airline ticket to and from Washington, D.C. for travel within North America.
Applicants should submit a resume, a personal statement of no more than two pages in length, and one letter of recommendation from a faculty member or dean at his/her institution that speaks to the applicant's qualifications. The personal statement must explain the significance of the assistantship to the applicant's professional and/or academic goals, and the contributions the applicant's skills and interests could make to the Center's research and publication projects. Application materials must be received by March 31, 2009. All applicants will be notified of selection results by early April 2009. Application materials should be sent to: Dr. Lisa Yavnai, Director, Visiting Scholar Programs, Center for Advanced Holocaust Studies, United States Holocaust Memorial Museum, 100 Raoul Wallenberg Place, SW, Washington, DC 20024. Information about Museum and Center resources can be found by clicking here.