(Update 9/29) Reminder: sign-on Possibility for the UN Committee Against Torture Shadow Report of Advocates for US Torture Prosecutions

Benjamin G. Davis, Associate Prodessor of Law, University of Toledo College of Law

Dear Colleagues,

(Update sent to the Volokh Conspiracy, Lawfareblog, Just Security, Opiniojuris.org, Jurist.org, and War is a Crime.org – Volokh declined as they do not generally put these things up. So made a comment there and at Lawfareblog.Com on the Holder thread. War is a Crime put it up right away and sent it out).

This is just a reminder that the UN Committee Against Torture will be reviewing the U.S. Periodic report in November and the State Department will be meeting with Civil Society in October to evaluate the U.S. compliance with its international obligations under the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment.

This is the first such periodic review since 2006.

Advocates for US Torture Prosecutions has prepared a shadow report available at

http://warisacrime.org/content/goodbye-eric-holder-now-can-we-prosecute-torture

and we are inviting persons and organizations who believe in maintaining the absolute prohibition on torture to sign on.

Persons interested should contact Deborah Popowski at dpopowski@law.harvard.edu of the Harvard International Human Rights Clinic on or before this Monday, September 29, 2014 if they wish to sign on.

Please consider passing this information also to organizations and interested persons so they are aware of this opportunity.

Thank you for considering this matter.

Best,
Ben

Sent from my iPhone


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Paid Law School Externships Will Ruin the Experience

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By Olympia Duhart

As the American Bar Association considers lifting the ban on paid externships, a simple truth bears repeating: Money changes everything. Under the current standards, law students cannot be compensated for work they do for school credit. This policy should remain in place because separating compensation and “study outside the classroom” is a crucial step toward safeguarding the academic integrity of the externship.

Yes, law students need money. They also need experience. Rolling back the prohibition on allowing students to receive pay and credit for the same work is an “easy fix” that ignores some key realities.

First, it will limit the ability of government and nonprofit institutions to attract students. Next, it will tempt employers to exploit the students under their supervision. Further, it will impair the educational objectives of the externship. It shifts the externship focus from things that are in the best interest of the students to tasks that are in the best interest of the employer. Driven by a need to maximize profits, some of the employers will engage inexperienced student workers in tasks that have little educational value. For example, inviting a student to reflect on a courtroom observation has an incredibly high instructive value; however, that same experience is not likely to be billable to a client. Profit and pedagogy do not always align.

What’s more, revoking the standard also collides with other important objectives for legal education. The A.B.A. has promoted legal education that encourages self-reflection, outcome measures and ethical participation in the practice of law. Even the most conscientious employer – pulled in different directions by clients and practice demands – may not be able to effectively pursue these goals. As they gain new experience, law students need mentors and educators. At the very least, the current standard incentivizes education, not making money.

But the truth is that something has to be done.

Given the alarming rate of tuition increases, law schools must finally take responsibility for the rising cost of legal education. A small paycheck will not do much to defray the high debt load most students must absorb to become lawyers. Instead, we need to dig deeper to make law school more affordable for students, especially those students interested in public interest work.

Allowing students to earn nominal pay from an externship simply is not the answer. They won’t earn much money, and they may not gain the type of experience that meaningfully contributes to their legal careers. Shifting the focus from academic study to earning pay will significantly transform the externship experience — and not for the better.

This article was originally published by New York Times on 9/18/14.  Read it here.


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Obama Declares Perpetual War

By Marjorie Cohn

President Barack Obama escalated the drone war he has conducted for the past five and a half years by declaring his intention to “degrade and ultimately destroy” the Islamic State, also known as ISIS, or ISIL. Since August 8, Obama has mounted at least 154 airstrikes in Iraq. He will send 475 additional US troops, increasing the total number in Iraq to about 1,600. Obama announced he would conduct “a systematic campaign of airstrikes” in Iraq, and possibly in Syria. But, not limiting himself to those countries, Obama declared the whole world his battlefield, stating “We will hunt down terrorists who threaten our country, wherever they are . . . if you threaten America, you will find no safe haven.”

If, indeed, there were an imminent threat of attack on the United States, Obama would be legally entitled to launch a military operation. The United Nations Charter, which prohibits the use of military force, allows an exception when a country acts in self-defense. Under the well-established Caroline doctrine, the “necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation.” The only problem is, Obama admitted, “We have not yet detected specific plotting against our homeland.” Citing only the vague possibility of future “deadly attacks,” Obama nevertheless declared a perpetual war with no specific end time.

The only other exception to the UN Charter’s prohibition on military force is when the Security Council has given its approval. Obama said he would chair a meeting of the Council in two weeks’ time to “mobilize the international community.” But the Charter requires that the Council countenance the military operation before it occurs. The proposed resolution the Council is slated to adopt will reportedly call on countries to criminalize recruitment and travel of foreign fighters that join extremist military forces, and require the sharing of airline passenger information. It will not, however, authorize military force. Obama’s war violates the UN Charter, a treaty the United States has ratified, making it part of US law under the Supremacy Clause of the US Constitution.

Obama’s war also violates the War Powers Resolution, which permits the president to introduce US Armed Forces into hostilities or imminent hostilities only in three situations. First, after Congress has declared war, which has not happened in this case. Second, in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” which again, has not occurred. Third, when there is “specific statutory authorization.” Obama has not asked Congress to authorize his military attacks.

Indeed, Obama declared, “I have the authority to address the threat from ISIL.” He was relying on the Authorization for the Use of Military Force (AUMF) that Congress passed in 2001, which President George W. Bush used to invade Afghanistan. But that AUMF only authorized force against individuals, groups and countries that “planned, authorized, committed or aided” the September 11 terrorist attacks. ISIS did not even exist in 2001. In fact, Ayman al-Zawahiri, al-Qaeda’s leader, formally kicked ISIS out of al-Qaeda earlier this year.

When it passed the 2001 AUMF, Congress specifically rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” Moreover, in the National Defense Authorization Act of 2012, Congress specified, “Nothing in this section is intended to . . . expand the authority of the President or the scope of the [2001 AUMF].”

Apparently, Obama is also relying on the 2002 AUMF, in which Congress authorized the president to use the armed forces as he determines necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq, and to enforce all relevant UN Security Council resolutions regarding Iraq. But since that threat and those resolutions were aimed at Saddam Hussein’s weapons of mass destruction, that license, too, has ended. Indeed, in June, the White House declared that the 2002 AUMF “is no longer used for any US government activities.” That means Obama’s current war is not simply a continuation of Bush’s Iraq war, and the 2002 AUMF does not provide Obama with legal license to mount his military attacks.

The War Powers Resolution requires Obama to secure a new Congressional authorization for his war within 60 days of launching “hostilities,” or he must withdraw US forces within 30 days. The 60-day period runs out on October 7. Obama apparently feels unconstrained to comply with this law.

During the 2008 presidential campaign, Obama told the Boston Globe, “The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Earlier this year, Obama said, “no country can maintain its freedom in the face of continual war.” Yet that is exactly what he is doing with his declaration of perpetual war.

Obama is violating both US and international law. He is also risking even more blowback against the United States. The US government has destabilized the region with Bush’s Afghanistan and Iraq wars, and Obama’s killing of thousands of people with drones. Many Sunnis are less afraid of ISIS than they are of the puppet Shiite government the United States installed in Iraq, which tortured, raped, murdered and arbitrarily detained Sunnis during the last two and a half years.

ISIS is a brutal group. But Obama is imploring Congress to fund the New Syrian Army, which according to The New York Times, “went on to behead six [captured] ISIS fighters.”

Playing both ends against the middle, Obama wants to fight ISIS in Syria without emboldening President Bashar Assad, who is also fighting ISIS. And Obama reserves the right to bomb in Syria, a sovereign country, in defiance of Assad. Obama is playing with fire.

Besides being illegal, Obama’s war promises to exacerbate the volatile situation in the region, resulting in more hostility against the United States. Obama has said in the past there is no military solution to this conflict. He should use his leadership in the Security Council to secure a cease-fire, create a peacekeeping force, mount an embargo of all arms being sent to the region, and pursue a regional diplomatic solution enlisting Iran and Syria in the process. Perpetual war is not the answer.

This article was originally published in Truthout on 9/15/14.  Read it here.

 


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(Updated 9/13) Nothing new under the sun with Obama and Cheney: This 9/11 as a day to reread Rudyard Kipling and think about proportionality

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

With Cheney – key architect of the torture – speaking yesterday about Obama recognizing the “ pacific role of American power” and President Obama laying out the plans for addressing the problem of ISIS a couple of conversations today drew me to a couple of things that are most appropriate for this day of remembrance.

I. Rudyard Kipling

Cheney and Obama harken back to the British during its period of empire.  And no one put it better then Rudyard Kipling.  I may be called a racist as a black man being willing to go there, but reading again Rudyard Kipling’s White Man’s Burden was stinging for me today.  It might be worthwhile to read and reflect on it in international law and national security law classes today.

Here is the poem in its entirety. (hat tip: http://historymatters.gmu.edu/d/5478/)

“The White Man’s Burden”: Kipling’s Hymn to U.S. Imperialism

In February 1899, British novelist and poet Rudyard Kipling wrote a poem entitled “The White Man’s Burden: The United States and The Philippine Islands.” In this poem, Kipling urged the U.S. to take up the “burden” of empire, as had Britain and other European nations. Published in the February, 1899 issue of McClure’s Magazine, the poem coincided with the beginning of the Philippine-American War and U.S. Senate ratification of the treaty that placed Puerto Rico, Guam, Cuba, and the Philippines under American control. Theodore Roosevelt, soon to become vice-president and then president, copied the poem and sent it to his friend, Senator Henry Cabot Lodge, commenting that it was “rather poor poetry, but good sense from the expansion point of view.” Not everyone was as favorably impressed as Roosevelt. The racialized notion of the “White Man’s burden” became a euphemism for imperialism, and many anti-imperialists couched their opposition in reaction to the phrase.


Take up the White Man’s burden—

Send forth the best ye breed—

Go send your sons to exile

To serve your captives’ need

To wait in heavy harness

On fluttered folk and wild—

Your new-caught, sullen peoples,

Half devil and half child

Take up the White Man’s burden

In patience to abide

To veil the threat of terror

And check the show of pride;

By open speech and simple

An hundred times made plain

To seek another’s profit

And work another’s gain

Take up the White Man’s burden—

And reap his old reward:

The blame of those ye better

The hate of those ye guard—

The cry of hosts ye humour

(Ah slowly) to the light:

“Why brought ye us from bondage,

“Our loved Egyptian night?”

Take up the White Man’s burden-

Have done with childish days-

The lightly proffered laurel,

The easy, ungrudged praise.

Comes now, to search your manhood

Through all the thankless years,

Cold-edged with dear-bought wisdom,

The judgment of your peers!

Source: Rudyard Kipling, “The White Man’s Burden: The United States & The Philippine Islands, 1899.” Rudyard Kipling’s Verse: Definitive Edition (Garden City, New York: Doubleday, 1929).


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US Slammed for Failure to Fulfill Legal Obligation to Eliminate All Forms of Race Discrimination

imgres.jpg By Marjorie Cohn

Three weeks after the shooting of Michael Brown in Ferguson, the United Nations Committee on the Elimination of Racial Discrimination (CERD) published a report detailing how the United States has failed to fulfill its legal obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (Convention).

The CERD report was scathing in its criticism of the United States for not complying with the convention’s mandates. Since the United States ratified this treaty, thereby becoming a state party, it is part of US law under the Supremacy Clause of the Constitution.

States parties must comply with the obligations under the convention, including submitting periodic reports to CERD regarding their progress in fulfilling their obligations. CERD is the body that monitors compliance of states parties with the convention.  After reviewing the most recent US report, CERD responded with its concluding observations as follows:

CERD urged the United States to prohibit racial discrimination in all its forms, including indirect discrimination. (The United States currently prohibits only intentional discrimination, but not legislation and programs that are discriminatory in effect).

CERD urged the United States to comply with the convention’s mandate that states parties adopt special measures to eliminate persistent disparities based on race or ethnic origin. (The US Supreme Court has narrowed the use of affirmative action in education).

CERD urged the United States to specifically outlaw racial profiling. (The FBI, TSA, border enforcement officials and local police engage in racial profiling).

CERD urged the United States to clean up radioactive and toxic waste, particularly in areas inhabited by racial and ethnic minorities and indigenous peoples. CERD also urged the United States to prevent US-registered transnational corporations from adversely affecting, in particular, minorities and indigenous peoples. (Racial and ethnic minorities, and indigenous peoples are disproportionately affected by negative health impacts of pollution caused by extractive and manufacturing industries).

CERD urged the United States to adopt legislation to prevent implementation of voting regulations with discriminatory impact. (The US Supreme Court invalidated procedural safeguards in the Voting Rights Act aimed at preventing the implementation of voting regulations that may have discriminatory effect). CERD also urged the United States and all states to reinstate voting rights to persons convicted of felonies who have served their sentences.

CERD urged the United States to abolish laws and policies making homelessness a crime. (A high number of homeless persons are disproportionately from racial and ethnic minorities, and homelessness is criminalized by loitering statutes).

CERD urged the United States to intensify efforts to eliminate racial discrimination in access to housing and ensure affordable and adequate housing for all. (There is persistent racial discrimination in housing and a high degree of segregation and concentrated poverty).

CERD urged the United States to develop a concrete plan to address racial segregation in schools and increase federal funds for such programs. (Students from racial and ethnic minorities attend segregated schools with unequal facilities).

CERD urged the United States to ensure that all, particularly racial and ethnic minorities, who reside in states that have opted out of Medicaid expansion under the Affordable Care Act (ACA) and undocumented immigrants and their families living in the United States for less than five years have effective access to affordable and adequate health care. (The US Supreme Court allows states to opt out of Medicaid expansion, and undocumented immigrants and their children are excluded from coverage under the ACA).

CERD urged the United States to fulfill its obligation to protect the right to life and reduce gun violence by adopting legislation expanding background checks and prohibiting the practice of carrying concealed handguns in public. CERD also urged the United States to review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to necessity and proportionality when deadly force is used in self-defense. (There is a high number of gun-related deaths and injuries, and Stand Your Ground laws are used to circumvent the limits of legitimate self-defense).

CERD urged the prompt and effective investigation of each allegation of excessive force by law enforcement officials; prosecution of alleged perpetrators and effective sanctions for those convicted; reopening of investigations when new evidence becomes available; and adequate compensation for victims and their families. (Brutality and excessive force by law enforcement officials against racial and ethnic minorities has a disparate impact on African Americans and undocumented migrants crossing the US-Mexico border; US Customs and Border Protection (CBP) agents enjoy impunity for abuses committed against Hispanic/Latino Americans and undocumented migrants).

CERD urged legal protection for the rights of noncitizens, including protection of migrants from exploitative and abusive working conditions; dealing with breaches of immigration law through civil, rather than criminal immigration system procedures; guaranteeing legal representation in all immigration matters; and raising the minimum age for agricultural field work. (Immigration enforcement is increasingly militarized, leading to excessive and lethal force by CBP personnel; local law enforcement increasingly uses racial profiling to determine immigration status; immigrants are detained for prolonged periods of time; and undocumented immigrants are deported without access to justice).

CERD urged the United States to intensify efforts to prevent and combat violence against women, particularly against American Indian and Alaska native women, and ensure all cases of violence against women are effectively investigated, prosecuted and sanctioned, and that victims are provided appropriate remedies. (A disproportionate number of women from racial and ethnic minorities continue to besubjected to violence, including rape and sexual violence).

CERD urged the United States to take concrete and effective steps to eliminate racial disparities at all stages of the criminal justice system. CERD also urged the United States to impose, at the federal level, a moratorium on the death penalty with a view to abolishing the death penalty. (Members of racial and ethnic minorities are disproportionately arrested, incarcerated and subjected to harsher sentences, including life imprisonment without parole (LWOP) and the death penalty).

CERD urged the United States to intensify efforts to address racial disparities in disciplinary measures, as well as the “school-to-prison pipeline”; and ensure juveniles are not transferred to adult courts and are separated from adults in custody. CERD also urged the United States to abolish LWOP for those younger than 18 at the time of their crime and the commutation of sentences for those already serving LWOP. (Youth from racial and ethnic minorities are disproportionately arrested at school and referred to the criminal justice system, prosecuted as adults, incarcerated in adult prison and sentenced to LWOP).

CERD urged the United States to end administrative detention without charge or trial at Guantanamo and the closure of the prison facility there without further delay. CERD also urged the United States to guarantee the right to a fair trial, in compliance with international human rights standards, and to ensure that any detainee not charged and tried is released immediately. (Noncitizens continue to be arbitrarily detained without effective and equal access to the ordinary criminal justice system, and are at risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment).

CERD urged the United States to adopt necessary measures to eliminate the disproportionate impact of inadequate criminal defense programs on racial and ethnic minorities, by improving the quality of legal representation and adequately funding legal aid. (There is no right to counsel in civil proceedings, which disproportionately affects indigent racial and ethnic minorities seeking effective remedies for evictions, foreclosures, domestic violence, employment discrimination, termination of subsistence income or medical assistance, loss of child custody and deportation).

CERD urged the United States to guarantee the right of indigenous peoples to effective participation in decisions affecting them, eliminate undue obstacles to recognition of tribes, protect sacred sites and halt the removal of indigenous children from their families and communities. (There are a lack of concrete progress in guaranteeing informed consent of indigenous peoples in decisions that affect them; burdensome obstacles to tribal recognition; insufficient protection of sacred sites; and continued removal of indigenous children from families and communities through the US child welfare system).

CERD also urged the adoption of a National Action Plan to combat structural racial discrimination and ensure that school curricula, textbooks and teaching materials address human rights themes and promote understanding among racial and ethnic minority groups.

CERD urged the United States to recognize the competence of CERD to hear individual complaints. CERD also urged the United States to ratify the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of the Their Families; the Convention on the Rights of Persons with Disabilities; and the International Convention for the Protection of All Persons from Enforced Disappearance.

Finally, CERD urged the United States to widely publicize CERD’s recommendations. When the United States ratifies a treaty, the legal obligations it assumes apply at the federal, state and local levels. And although, by ratifying a treaty the United States undertakes an obligation to publicize the terms of the treaty, the US government has not taken this responsibility seriously.

This article was originally published by Truthout on 9/5/14.  Read it here.

 


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Of the Human Dignity of Michael Brown: An Old School Take on Ferguson

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Leaving the dead body shot by the police of an unarmed young black man (in this case Michael Brown)  for four hours in the middle of the street in a former sundown town in a border state is an old American image that I have not seen the media addresses adequately in its coverage.  I have seen various commentators consider it shameful and be saddened by it, but I have not seen the kind of visceral understanding of the meaning of a dead black man’s body being left in the middle of the street for all to see for hours.  Whatever the officer in question is guilty of, the leaving of the unarmed black man’s dead body in the middle of the street by the powers that be in that town is worth a meditation on its own.

That meditation would be on the nature of human dignity – and in this case – the human dignity of a young black man.  As we know in many religions, the dead are to be buried within a day.  The body of the corpse is to be washed and wrapped in linens of some kind as part of the respect for the body.

We all remember the sense of barbarism felt when four military contractors in Iraq were ambushed and killed by a crowd and their bodies defiled.  We all remember the soldiers not seeking revenge by starting to shoot up the people, but asking the elders to provide the bodies so that we could bury the dead.  We all remember the scenes in Mogadishu when soldiers were killed by the warlord Aidid’s people and the bodies of the soldiers were dragged through the streets and defiled.  We all remember the soldiers who received punishment for peeing on the bodies of dead Taliban killed in the War in Afghanistan.

We all recognize that the treatment of the dead is one of the hallmarks of civilization.  Our images of how the dead have been treated in mass graves – such as recently in Texas for dead illegal immigrants buried in a mass grave in trash bags and little care for their bodies – remain burned in our memories as we think of this person as someone’s father, mother, sister, or brother.  Or, in the case of Michael Brown, someone’s son.

When I thought about Michael Brown’s dead body laying out in the sun for four hours – ostensibly so that the police investigation could be done – I was drawn back to some images that are old in American history.  Am I the only one who remembers bodies of black men hanging in trees and burned, with their families steeling away to take them down after the lynching was finished to bury them with some semblance of respect for the dignity of their loved one?  Am I the only one who saw 12 years a slave and the scene of the protagonist strung up and barely able to stand on the ground without choking in front of all the slaves for hours and hours?  Am I the only one who felt a very light rub of an old ante-bellum wound in seeing Michael Brown’s innate body lying in the middle of the street for four hours like roadkill?

If I have caused something to resonate in the reader by taking us to this part of our history, then it has been worth writing this short post.  For the essence of what I am speaking to is the concept of human dignity, and in particular the human dignity of this young black man.  For me, the four hours in the sun that he spent as a corpse on a street was a form of psychological terrorism by the powers that be that had the power to take him away.  We saw the image of a family member rushing to him to cover him, and the police officer pushing that member away.  Overtly or subliminally, we understand that his body laying in the sun was a warning to every black person around there to submit to authority, to be subservient, to go along to get along, to not make waves, and – in essence – to not assert the plenitude of one’s civil, political, and human rights.  The state would not recognize those rights of citizenship or residence was the message. So be forewarned.

This reminded me of the conversations I had on several occasions with visiting Americans in Paris when I lived there.  Inevitably, particularly by white Americans, the question would be asked as to whether I missed being home.  Their look would be a furtive one of hoping that I would say something in the affirmative rather than make some type of condemnation of what it was to be black in America.  What I tended to say after a while was the following.

In Paris, I know that I am not French and so, for the French, I am not civilized because I am not French.  However, in Paris, I know that for the French I am human – uncivilized because I am not French (which is not my fault) but still human.  In the United States, there have been a number of occasions in which I have wondered whether the people I was dealing with thought I was human.  In France, I am considered human.  In the United States, there are times when I have wondered whether the people I am dealing with think I am human.

The humanity issue of course goes back to slavery in the collective American unconsciousness.  I remember that the slave was an asset with the cow, the sheep, and the pig in the ledgers of the master of the plantation.  I have learned recently about slave babies being used as gator bait in Florida as an example of the vision of slaves as animals.  I have learned of the use of the ice bucket of the ALS challenge as a punishment for slaves back in the ante-bellum period.  These are wounds of memory.

The wound of memory being lightly rubbed is the same wound I felt when I watched those people in New Orleans after Katrina desperate at the Convention Center.  Their plight reminded me of the plight of blacks in the Great Flood of 1927 when a riverboat came along and took the whites away and left blacks stranded with water all around them.  The white folks on the riverboat sang songs as they floated away leaving those blacks to the terrible destiny that awaited them at the hands of Mother Nature at her cruelest.

We have to recognize and understand the public and private social violence that is countenanced against young black men – made apparent in that dead body laying in the sun for four hours without his dignity in death being recognized.

It is an old wound, and it seems to me that the inability for the commentators to speak to that old wound is the problem of our collective unconsciousness and our inability to own the history that pervades our lives today, rather than the kind of denial we try to live.  It is painful history to confront, terribly painful, yet its weight remains. A son of the South said it best (for all of us both North and South) when he wrote:

“The past is never dead.  It’s not even past.” William Faulkner, Requiem for A Nun

Michael Brown is just the most recent iteration of our what the French call “refoulement” of that history.  We are sick.


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SIBKIS: The So-called ISIS Crisis

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Just watched Evan Kohlmann and Michael O’Hanlon on Hardball discussing the latest awful murderous thing that ISIS has done. They were fanning the flames of war.

Here is the way it looks from Toledo. Russia is asserting a sphere of influence in Ukraine because Putin and his leadership are not comfortable with Ukraine not being a client state. It was a fundamental part of the old USSR and to “lose” it to the West and Europe further weakens Russian standing. Russia has a hard time doing diplomacy in Eastern Europe so the assertion of force is its 19th century way of doing politics.

The West led by the US worked hard to overthrow in our Western way the Russian friendly prior government as part of its effort to confront and isolate Russia on its Western front. The economic blandishments of Europe are perceived by enough Ukrainians as more lucrative than any from Russia and so we have the reversal of government. Russia arming separatists and taking Crimea was the bear’s moves to instill fear of a force based solution to Ukraine – another war in Europe.

Russia being one of the five permanent members of the UN Security Council and thus a guarantor of the post-World War II (at least in Europe) peace, these signals by Russia are a clear message that the Ukraine gambit by the West is seen as a provocation of significance to the edge of war in Europe.

Russia has strengthened ties with China and China has its own ambitions in the South China Sea and Asia.  As such, a Russia-China tandem asserting territorial claims in their respective parts of the world may be emerging. China is more resource poor so its own strategy of tying up resources in Africa and the Middle East is its effort to shore up its relative position for the long haul.

Russia has made clear it wants to protect its clear client states in Syria and Iran. Iran is a serious concern for the US and its principal client state Israel. Israel has been trying to get the US to go after Iran and Syria which would weaken its adversaries in the region like Iraq has been weakened. Gulf states and Saudi Arabia are interested in a weakened Iraq (too close ties to Shia Iran) and Syria (Assad minority government oppressing Sunnis).

The Syrian Civil War is a place outside of Europe where some of these ambitions can play out. Jamal Al Nusra fights Assad which is good for Gulf States and bad for Russia and Al Qaeda.

Step in ISIS – al-Baghdadi’s means to instrumentalize radical Islam ideas to gain power, money and territory. ISIS self-finances to the extent it controls who pays it, steals for it, or buys oil from it. Clearly people are willing to do business with them for private gain. ISIS has a social media strategy that multiplies the terror impact of their murderous acts to sap its  adversaries will to fight and recruit persons with death wishes who seek glory in fighting (and dying) for what they think is Islam. And they are on the move.

Obama operates through air strikes to blunt ISIS advances and is recruiting powers to a coalition to fight ISIS. Obama operates through NATO to try to avert a war in Europe to raise costs for the bear in Ukraine.

ISIS wants to draw America into the battle in order to kill Americans. Sunnis in Iraq, dissatisfied with the post-Saddam deal they are getting, bet on Al-Baghdadi as the new Sunni boss. The change of the Iraqi government is a hope to build a new internal Iraq deal for the Iraqis to fight ISIS, peeling off the Sunni support of ISIS.

In the US the pre-midterm machismo types we have endured for nigh on 50 years, respond with their classic calls for confrontation without tactics. We saw how that strategy worked in 2002 pre-midterm rushing us into Iraq.

It seems to this person that the regional strategies that Obama is using to regionalize any efforts and have the local governments out front in defending themselves against and confronting these ISIS threats and Russian threats makes the most sense of all I have heard. His regional efforts towards China also are coherent with that strategy.

The illusion that the US will put its own troops in harm’s way for these battles is an illusion. It may serve the budget interests of the military-industrial complex and electoral ambitions domestically to portray the President as weak, but of course they have nothing more to bring forward on dealing with this.  His is a long haul strategy that frustrates the short term vision of Americans but is more consistent with longer term structural battling while averting world war.

The foreign fighters meme serves to instill fear in the US and encourage the extension of domestic repression and restriction of dissent.  These threat stream arguments are potent fear inducing tools to get us to do our historic approach of using violence externally and internally.

Unwinding this will be difficult and take deftness beyond violence.  More unintended consequences of the War in Iraq.

Let the cool heads prevail in this deadly multitiered transnational power struggle. The hot heads will get us all killed.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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National Lawyers Guild, other legal organizations urge International Criminal Court to investigate war crimes by Israeli, U.S. leaders in Gaza

 By Marjorie Cohn

The National Lawyers Guild (NLG), Center for Constitutional Rights, International Association of Democratic Lawyers, Arab Lawyers Union, and American Association of Jurists (Asociacion Americana de Juristas) sent a letter [https://www.nlg.org/sites/default/files/Letter%20to%20ICC%20Prosecutor%20Gaza%20FINAL.pdf] on Friday, August 22 to Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), urging her to initiate an investigation of war crimes, genocide, and crimes against humanity committed by Israeli leaders and aided and abetted by U.S. officials in Gaza. Under the Rome Statute, the ICC has the power to hold individuals criminally accountable for the most serious of crimes.

“In light of the extreme gravity of the situation in the occupied Gaza Strip, in particular the large number of civilian casualties and large scale destruction of civilian property, including schools, mosques and hospitals, and the ongoing incitement to genocide perpetrated by Israeli political figures and leaders, the [NLG] and endorsing organizations strongly urge the Office of the Prosecutor to use its power under Article 15 of the Rome Statute to initiate a preliminary investigation” of crimes within the ICC’s jurisdiction.

“[Under the Rome Statute, an] individual can be convicted of a war crime, genocide or a crime against humanity  . . . if he or she ‘aids, abets or otherwise assists’ in the commission or attempted commission of the crime, ‘including providing the means for its commission’,” the letter reads. “By transferring financial assistance, weapons and other military aid to Israel, members of the U.S. Congress, President Barack Obama and Defense Secretary Chuck Hagel have aided and abetted the commission of war crimes, genocide and crimes against humanity by Israeli officials and commanders in Gaza.”

The letter states that on July 20, 2014, in the midst of criminal behavior, Israel requested, and the U.S. Defense Department then authorized, the transfer to Israel of ammunition from the War Reserve Stockpile Ammunition. And in August 2014, Congress overwhelmingly approved, and Obama signed, a $225 million payment for Israel’s Iron Dome missile defense system.

“Israel’s clearly disproportionate use of force against the 1.8 million residents of Gaza appears to have little to do with any claim of security,” the organizations wrote, “but seems to be calculated to exact revenge against Palestinian civilians.” The letter quotes statements of Israeli officials advocating vengeance against “the entire Palestinian people “and “calling for the internment of Palestinians in concentration camps in Sinai and the destruction of the civilian infrastructure in Gaza.”

Allegations of War Crimes

The letter lists the following war crimes, and cites supporting factual allegations for each crime:

-willful killing (over 2,000 Palestinians, 80% civilians)

-willfully causing great suffering or serious injury (wounding nearly 10,000 Palestinians, 2,200 children)

-unlawful, wanton and unjustified extensive destruction and appropriation of property (tens of thousands of Palestinians lost homes, severe damage to infrastructure)

-willful deprivation of fair trial rights (450 Palestinians held without charge or trial); -intentional attacks against civilians or civilian objects or humanitarian vehicles, installations and personnel (bombing of numerous schools, UN places of refuge, hospitals, ambulances, mosques)

-intentionally launching unjustified attacks, knowing they will kill or injure civilians, damage civilian objects, or cause long-term and severe damage to the natural environment (use of ‘Dahiya Doctrine’ to apply “disproportionate force” and cause “great damage and destruction to civilian property and infrastructure, and suffering to civilian populations,” as defined in UN Human Rights Council [Goldstone] Report) (Israel virtually flattened town of Khuza’a).

Allegations of Genocide

Article 6 of the Rome Statute defines “genocide” as the commission of any of the following acts with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: (a) killing members of the group; (b) causing serious bodily harm to members of the group; or (c) deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part.

The letter says, “In light of the fact that Palestinians in Gaza had no ability to flee for safety, it must be assumed the responsible Israeli officials knew that huge casualties and destruction of civilian property and infrastructure were certain during the massive bombardment by land, air and sea of the occupied Gaza Strip.” The letter also lists “the repeatedly inciting public statements made by Israeli officials before and during the course of Operation Protective Edge and the history of Israel’s repeated bombardment of Palestinian refugee camps and populations in Lebanon and in Gaza” as evidence that “Israeli officials may be implementing a plan to destroy the Palestinian population, at least in part.”

Allegations of Crimes against Humanity

Article 7 of the Rome Statute defines “crimes against humanity” as the commission of any of the following, when part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Persecution against a group or collectivity based on its political, racial, national, ethnic or religious character; or (c) The crime of apartheid (inhumane acts committed in the context of an institutional regime of systematic oppression and domination by one racial group over another racial group, with the intent to maintain that regime).

The letter states, “Israeli forces have killed, wounded, summarily executed and administratively detained Palestinians, Hamas forces and civilians alike. Israeli forces intentionally destroyed the infrastructure in Gaza.” It also says Israel keeps Palestinians caged in “the world’s largest open air prison,” and “controls all ingress and egress to Gaza, and limits … access to medicine and other essentials.” Finally, the letter cites arbitrary arrest and administrative detention; expropriation of property; destruction of homes, crops and trees; separate areas and roads; segregated housing, legal and educational systems for Palestinians and Jews; the illegal barrier wall encroaching on Palestinian territory; hundreds of illegal Jewish settlements on Palestinian land; and denying the right of Palestinians to return to their homeland because they are not Jews.

The signatories to the letter conclude that “[t]he initiation of an investigation would send a clear message to all involved either in committing or in aiding and abetting of the aforementioned crimes that they stand to be held personally accountable for their actions.”

It remains to be seen whether the ICC will exercise jurisdiction in such a case since neither Israel nor the United States is a party to the Rome Statute. But if the ICC determines that Palestine can accede to the Rome Statute, the ICC could take jurisdiction over crimes committed by Israelis and Americans in Palestinian territory.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild. She is also deputy secretary general of the International Association of Democratic Lawyers and the U.S. representative to the American Association of Jurists (Asociacion Americana de Juristas). Her next book, ‘Drones and Targeted Killing: Legal, Moral and Geopolitical Issues,’ will be published in September 2014.

 


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2014 SALT Junior Faculty Award Announced

margaret-kwoka-fullbody

SALT is proud to announce Professor Margaret Kwoka (University of Denver) as the winner of the 2014 Junior Faculty Teaching Award.  Among the twelve nominees, Professor Kwoka demonstrated an ongoing commitment to involving social justice themes in her teaching.  She has consistently embodied the mission of SALT through her teaching and scholarship, including teaching social justice concepts in courses like Civil Procedure and organizing the Rocky Mountain retreat for students interested in public interest work.  Please join us in congratulating Professor Kwoka for setting such a high standard for this inaugural award.

SALT would like to thank the Committee members for their service.  The committee considered several strong candidates, and volunteered their time to screen and review applications.  The selection committee included a variety of professors from various disciplines, teaching experience levels and home institutions. We thank Professors SpearIt (Thurgood Marshall), Steve Friedland (Elon),  Ernesto Hernandez (Chapman), Camille Lamar (Nova Southeastern), and Nareissa Smith (North Carolina Central University). We are especially grateful to Professor SpearIt in his role as Chair.  Professor Kwoka will be honored at the SALT Teaching Conference in October.


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US Leaders Aid and Abet Israeli War Crimes, Genocide & Crimes against Humanity

By Marjorie Cohn

By sending vast amounts of military aid to Israel, members of the US Congress, President George W. Bush, President Barack Obama and Defense Secretary Chuck Hagel have aided and abetted the commission of war crimes, genocide and crimes against humanity by Israeli officials and commanders in Gaza. An individual can be convicted of a war crime, genocide or a crime against humanity [PDF] in the International Criminal Court (ICC) if he or she “aids, abets or otherwise assists” in the commission or attempted commission of the crime, “including providing the means for its commission.”

There is growing evidence that Israeli leaders and commanders have committed the following war crimes, genocide and crimes against humanity as defined in the Rome Statute for the ICC. US military aid has aided, abetted and assisted the commission of these crimes by providing Israel with the military means to commit them.

During Operation Protective Edge, Israeli forces again used the Dahiye Doctrine, which, according to the UN Human Rights Council [Goldstone] Report [PDF], involves “the application of disproportionate force and causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations.

A summary of Israeli leaders’ extensive crimes is presented below.

US military aid to Israel

According to the Congressional Research Service, in 2007, the Bush Administration agreed to provide Israel with $30 billion [PDF] in military assistance from 2009 to 2018, provided in annual increments of $3.1 billion. During his March 2013 visit to Israel, Obama pledged that the US would continue to provide Israel with multi-year commitments of military aid subject to the approval of Congress.

Since 2012, the US has sent $276 million worth of weapons and munitions to Israel, not including exports of military transport equipment and high technologies. From January to May 2014, the US transferred to Israel almost $27 million for rocket launchers, $9.3 million worth of parts of guided missiles and nearly $762,000 for bombs, grenades and munitions of war.

On July 20, 2014, Israel requested additional ammunition, including 140mm tank rounds and 40mm illumination grenades, and the Defense Department approved the sale three days later. It came from a $1 billion stockpile of ammunition the US military stores in Israel for that country’s use; it is called War Reserve Stockpile Ammunition-Israel. In early August 2014, both houses of Congress overwhelmingly passed, and Obama signed, an appropriation of $225 million for Israel’s Iron Dome missile defense system, which has also been used in Gaza. The Senate vote was unanimous. With no debate, the House of Representatives voted 395 to 8 to approve the deal.

Here is a summary of the crimes, as defined in the Rome Statute, Israeli leaders have committed and US leaders have aided and abetted:

War crimes

(1) Willful killing: Israeli forces have killed nearly 2,000 Palestinians (more than 400 children and over 80% civilians). Israel used 155-millimeter artillery, which, according to Human Rights Watch, is “utterly inappropriate in a densely populated area, because this kind of artillery is considered accurate if it lands anyplace within a 50-meter radius.”

(2) Willfully causing great suffering or serious injury to body or health: Nearly 10,000 people, 2,500 of them children, have been wounded. Naban Abu Shaar told the Daily Beast that the dead bodies from what appeared to be a “mass execution” in Khuza’a looked like they were “melted” and were piled on top of each other; assault rifle bullet casings found in the house were marked “IMI” (Israel Military Industries). UNICEF said the Israeli offensive has had a “catastrophic and tragic impact” on children in Gaza; about 373,000 children have had traumatic experiences and need psychological help. The UN Relief and Works Agency for Palestine Refugees (UNRWA) said: “There’s a public health catastrophe going on. You know, most of the medical facilities in Gaza are non-operational.”

(3) Unlawful and wanton, extensive destruction and appropriation of property not justified by military necessity: Tens of thousands of Palestinians have lost their homes. More than 1,300 buildings were destroyed and 752 were severely damaged. Damage to sewer and water infrastructure has affected two-thirds of Gazans. On July 20, Israeli forces virtually flattened the small town of Khuza’a; one man counted 360 shell attacks in one hour. Reconstruction of Gaza is estimated to cost $6 billion. Israel shrunk Gaza’s habitable land mass by 44 percent, establishing a 3 km “no-go” zone for Palestinians; 147 square miles of land will be compressed into 82 square miles. Oxfam described the level of destruction as “outrageous … much worse than anything we have seen in previous [Israeli] military operations.”

(4) Willfully depriving a prisoner of war or a civilian the rights of fair and regular trial: Nearly 2,000 Palestinians were arrested by Israeli forces during July 2014, according to the Palestinian Prisoners Center for Studies. Prisoners include 15 members of the Palestinian Legislative Council, about 240 children, dozens of women, journalists, activists, academics and 62 former prisoners previously released in a prisoner exchange. Israeli forces executed many prisoners after arrest, either by directly firing on them, refusing to allow treatment or allowing them to bleed to death. More than 445 prisoners are being held without charge or trial under administrative detention.

(5) Intentionally directing attacks against the civilian population, civilian objects, or humanitarian vehicles, installations and personnel: “The civilian population in the Gaza Strip is under direct attack,” reads a joint declaration of over 150 international law experts. Israeli forces violated the principle of “distinction,” which forbids deliberate attacks on civilians or civilian objects. Israeli forces bombed 142 schools (89 run by the UN), including six UN schools in which civilians were taking refuge. Israeli forces shot and killed fleeing civilians (warnings, which must effectively give civilians time to flee before bombing, do not relieve Israel from its legal obligations not to target civilians). Israeli forces repeatedly bombed Gaza’s only power plant and other infrastructure, which are “beyond repair.” Israeli forces bombed one-third of Gaza’s hospitals, 14 primary healthcare clinics and 29 ambulances. At least five medical staff were killed and tens of others were injured.

(6) Intentionally launching attacks with knowledge they will cause incidental loss of life or injury to civilians or damage to civilian objects or long-term severe damage to the natural environment, if they are clearly excessive in relation to the anticipated military advantage: The principle of “proportionality” forbids disproportionate and excessive civilian casualties compared to the claimed military advantage gained in the attack. The Dahiye Doctrine directly violates this principle. Responding to Hamas’ rockets with 155-millimeter artillery is disproportionate. Although nearly 2,000 Palestinians (over 80 percent civilians) have been killed, 67 Israelis (all but three of them soldiers) have been killed. The coordinates of all UN facilities were repeatedly communicated to the Israeli forces; they nevertheless bombed them multiple times. Civilians were attacked in Shuja’iyyah market.

(7) Attacking or bombarding undefended towns, villages, dwellings or buildings, or intentionally attacking religious, educational and medical buildings, which are not military objectives: On July 20, Israeli forces virtually flattened the small town of Khuza’a; one man counted 360 shell attacks in one hour. Israeli forces bombed 142 schools (89 run by the UN), one-third of Gaza’s hospitals, 14 primary healthcare clinics, and 29 ambulances. Israeli shelling completely destroyed 41 mosques and partially destroyed 120 mosques.

Genocide

(a) With the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: Palestinians, including primarily civilians, and Palestinian infrastructure necessary to sustain life were deliberately targeted by Israeli forces.

(b) The commission of any of the following acts

(i) killing members of the group: Israeli forces killed nearly 2,000 Palestinians.
(ii) causing serious bodily or mental harm to members of the group: Israeli forces wounded 10,000 Palestinians.
(iii) deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part: Israeli forces devastated Gaza’s infrastructure, knocking out Gaza’s only power plant, and destroying homes, schools, buildings, mosques and hospitals.

Crimes against humanity

(A) The commission of murder as part of a widespread or systematic attack against any civilian population: Israeli forces relentlessly bombed Gaza for one month, killing nearly 2,000 Palestinians, more than 80 percent of whom were civilians. Israeli forces intentionally destroyed Gaza’s infrastructure, knocking out Gaza’s only power plant, and destroying homes, schools, buildings, mosques and hospitals.

(B) Persecution against a group or collectivity based on its political, racial, national, ethnic or religious character, as part of a widespread or systematic attack against any civilian population: Israeli forces killed, wounded, summarily executed, and administratively detained Palestinians, Hamas forces and civilians alike. Israel forces intentionally destroyed the infrastructure of Gaza, populated by Palestinians. UN Secretary General Ban Ki-moon said: “the massive death and destruction in Gaza have shocked and shamed the world.” He added the repeated bombing of UN shelters facilities in Gaza was “outrageous, unacceptable and unjustifiable.”

(C) The crime of apartheid (inhumane acts committed in the context of an institutional regime of systematic oppression and domination by one racial group over another racial group, with the intent to maintain that regime): Ali Hayek, head of Gaza’s federation of industries representing 3,900 businesses that employ 35,000 people, said: “After 30 days of war, the economic situation has become, like, dead. It seems the occupation intentionally destroyed these vital factories that constitute the backbone of the society.” Israel maintains an illegal barrier wall that encroaches on Palestinian territory and builds illegal Jewish settlements on Palestinian lands. Israel keeps Gazans caged in what many call “the world’s largest open air prison.” Israel controls all ingress and egress to Gaza, limits Gazans’ access to medicine, subjects Palestinians to arbitrary arrest, expropriates their property, maintains separate areas and roads, segregated housing, different legal and educational systems for Palestinians and Jews and prevents mixed marriages. Only Jews, not Palestinians, have the right to return to Israel-Palestine.

Collective punishment

Although the Rome Statute does not include the crime of collective punishment, it is considered a grave breach of the Fourth Geneva Convention, which constitutes a war crime. Collective punishment means punishing a civilian for an offense he or she has not personally committed; it forbids reprisals against civilians and their property (civilian objects).

Ostensibly to rout out Hamas fighters, Israel has wreaked unprecedented devastation on the people of Gaza, killing nearly 2,000 people (more than 80 percent of them civilians) and destroying much of the infrastructure of Gaza. This constitutes collective punishment.

On August 5, 2014, veteran Israeli military advisor Giora Eiland advocated collective punishment of Gaza’s civilian population, saying: “In order to guarantee our interests versus the other side’s demands, we must avoid the artificial, wrong and dangerous distinction between the Hamas people, who are ‘the bad guys,’ and Gaza’s residents, which are allegedly ‘the good guys.’” That is precisely the strategy Israel has employed during Operation Protective Edge.

Israel’s occupation of Palestinian lands also constitutes collective punishment. Israel maintains effective control over Gaza’s land, airspace, seaport, electricity, water, telecommunications and population registry. Israel deprives Gazans of food, medicine, fuel and basic services.

Prospects for criminal accountability

Both Israel and the US have refused to ratify the Rome Statute. But if Palestine were a party to the statute, the ICC could exercise jurisdiction over crimes committed by Israelis and Americans in Palestinian territory. The ICC could also take jurisdiction if the UN Security Council refers the matter to the ICC, or if the ICC prosecutor initiates an investigation of the crime. The US would veto any Security Council referral to the ICC. And the ICC prosecutor has not initiated an investigation. So the question is whether Palestine can ratify the statute, thereby becoming a party to the ICC.

In 2009, the Palestinian National Authority filed a declaration [PDF] with the ICC accepting the court’s jurisdiction. In 2012, the UN General Assembly overwhelmingly recognized Palestine as a non-member observer state. During the present war, the Palestinian minister of justice and the deputy minister of justice both submitted documents to the ICC indicating that the 2009 declaration is still valid. On August 5, 2014, the Palestinian minister of foreign affairs met with officials from the ICC and inquired about the procedures for Palestine to become a party to the statute.

On July 25, 2014, a French lawyer filed a complaint with the ICC on behalf of the Palestinian justice minister. Citing Israel’s military occupation of Palestinian territories, Israel’s blockade of the Gaza Strip and the ongoing military operations there, the complaint alleges that Israel committed war crimes and other crimes. The Palestinian government has not formally commented on this complaint.

On July 23, 2014, the UN Human Rights Council established a commission of inquiry into Israeli violations of international human rights and international humanitarian law. The resolution also called on parties to the Fourth Geneva Convention to convene and respond to the alleged violations. That convention requires parties to prosecute violators. Countries can bring foreign nationals to justice for war crimes, genocide and crimes against humanity under the well-established doctrine of universal jurisdiction. Genocide charges could also be brought under the Genocide Convention, to which both Israel and the United States are parties. That convention also punishes complicity in genocide; US leaders’ provision of military aid would constitute complicity.

Although the Israeli and US governments continue to maintain that Israel has only acted in self-defense against Hamas’ terrorism, the weight of world opinion points in the opposite direction. There is overwhelming opposition to Israeli aggression in Gaza and calls for justice and accountability.

Both Israeli and US leaders must be criminally prosecuted for committing and aiding and abetting these crimes.

This article was originally published at JURIST on 8/8/14.  Read it here.

 



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