As Impossible as Flying

The U.S. Loosens Sanctions on Sudan: Reasons for Optimism and Vigilance

2011-12-15T16:30:00.001-05:00

Last Thursday, just before this week’s Development Conference for South Sudan, the Treasury Department lifted vast swaths of OFAC’s Sudanese Sanctions Regulations. This opens up South Sudan’s oil fields for investment by American businesses, which could have a positive impact on the development of that new nation.

However, it also means that at least some revenue from those projects will flow to Omar al-Bashir, the indicted war criminal who remains the president of (North) Sudan. Over at the Enough Project, I offer an analysis of the changes and what it means for peace and development in both Sudans.

Victims’ Justice: Promises Broken on the Road to Trying the Khmer Rouge

2011-12-10T13:35:00.008-05:00

The Khmer Rouge trials recently got underway (again) in Cambodia. In connection with this, I was asked by the amazing Lisa Reinsberg , founder of the International Justice Resource Center, to contribute my reflections on the Tribunal. The IJRC is the type of comprehensive, user-friendly source for international law research that I wish I’d had when I was at the ECCC, when I was trying to pull research from dozens of disparate sources across a 14.4 modem. It compiles all the major human rights documents and databases, provides training for advocates, and offers a toolbox for advancing international law claims, not only in tribunals and regional bodies, but also in domestic courts around the world. I encourage you to check it out and consider supporting its work with a small, tax-deductible donation before the end of the year.

The piece itself can be accessed at Victims’ Justice: Promises Broken on the Road to Trying the Khmer Rouge.

The ECCC has been on my mind a lot lately. Last week, I had the privilege of speaking on a panel with Samkhann Khoeun, a leader in the Cambodian diaspora in Lowell, MA, and Kho Tararith, a poet and Harvard University Fellow. Both of these men, Khmer Rouge victims who suffered unspeakable tragedies, said unequivocally that they do not believe the Court could bring them justice. They see it as a tool of Hun Sen and as having no connection to the pain that they and their families suffered. Whether these accusations about the ECCC are true or not is barely relevant. If they are perceived as true, the damage is already done.

My contribution is balanced by a piece from Christopher “Kip” Hale, Senior Counsel to the American Bar Association’s Center for Human Rights and a former Legal Officer in the Office of the Prosecutor at the ECCC. We have vastly different views, which I hope will advance a conversation about the work that the ECCC is doing, how it is being carried out, and on whose behalf.

A link to Kip’s rebuttal can be found at The Khmer Rouge Tribunal: Cambodia's Pursuit of Justice Has Value and Merit, Despite Flaws.

Sudan's Violations of Geneva Law Demand an International Response

2011-11-30T05:14:00.004-05:00

Earlier this month, Sudan launched assaults against unarmed civilians in Upper Nile state and at the Yida refugee camp in South Sudan. In addition to condemning Bashir’s ruthlessness, it is useful to remember that these attacks are not merely immoral – they are illegal. The world has a duty to ensure that the perpetrators are held to account.

In my latest piece for the Enough Project, a look at the legal implications of what is now an international armed conflict between the genocidal regime in Khartoum and the new nation of South Sudan. Please share, comment, and demand action from our leaders before it is too late.

The Atrocities Prevention Board: Fixing America's "Plumbing and Wiring" to Prevent Genocide

2011-10-12T22:44:00.008-04:00

On August 4, 2011, Barack Obama issued a groundbreaking Presidential Study Directive on Mass Atrocities (“PSD”). A PSD is a form of Executive Order that is promulgated with the advice and consent of the National Security Council and used to initiate policy review procedures. David Pressman, the President’s Director for War Crimes and Civilian Protection and one of the architects of the Mass Atrocities Directive, describes this work as “important plumbing and wiring.” While streamlining the way that bureaucrats communicate with one another may seem dull, the results of this endeavor could be phenomenally important for America’s ability to respond to and prevent future genocides and crimes against humanity.

The PSD sates that “[p]reventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.” In the realm of law, words are power, and the inclusion of this short sentence in a Presidential mandate is cause for great optimism. In the past, the inability to frame genocide prevention as part of America’s national interest has stymied US responses until the only option left was the least palatable one – military intervention. Yet, as the PSD recognizes:

Our security is affected when masses of civilians are slaughtered, refugees flow across borders, and murders wreak havoc on regional stability and livelihoods. America’s reputation suffers, and our ability to bring about change is constrained, when we are perceived as idle in the face of mass atrocities and genocide….

In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing. The actions that can be taken range from economic to diplomatic interventions, and from non-combat military actions to outright intervention.

As the PSD also recognizes, “ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristics of mass killing.” Genocides, whether at the hands of the Nazis, the Khmer Rouge, the Bosnian Serbs, the Hutus in Rwanda or the Janjaweed in Sudan, require planning, coordination, and time. With early warning and early action, this creates a window for intervention. The lives of thousands can quite literally become a matter of the efficiency of our bureaucracy versus theirs.

Recognizing this, the PSD directs the establishment of an interagency Atrocities Prevention Board (APB) that will be charged with “coordinat[ing] a whole of government approach to preventing mass atrocities and genocide.” National Security Advisor Tom Donilon was given 100 days to conduct a study of how best to design the APB: who should be on it, what its mandate should be, and most importantly, how the APB will collect information on potential genocides and make sure that it gets in front of key decision makers – including the President – in time for meaningful action to be taken.

More than half the study period has now elapsed, and Mr. Donilon’s report is due to hit the President’s desk on or before November 12, with the Atrocities Prevention Board slated to open its doors twenty days later on December 10. While the precise details of the APB remain to be determined, we already know much about its likely composition and function. The PSD specifically directs Donilon to consider recommendations issued in 2008 by the Genocide Prevention Task Force, which was chaired by former Secretaries of State William S. Cohen and Madeline Albright.

This series of posts will summarize the recommendations made by that task force and offer a roadmap to how the US government is likely to talk to itself and act in the world to prevent future genocides and crimes against humanity. The new “plumbing and wiring” will not be in place in time inform America’s response to the looming attack by Sudan’s Armed Forces in Blue Nile State. But as people from Libya to Syria and possibly Sudan push their dictators’ backs against the wall, the risk of catastrophic retaliation looms large. An effective, empowered Atrocities Prevention Board cannot come soon enough.

Brandeis University -- Training Ground for Upstanders

2011-07-21T07:08:00.003-04:00

Several weeks ago, my alma mater, Brandeis University, asked me to write a piece linking social justice work to my time in undergrad. I thought long and hard about the best use I could make of this platform and this network. Brandeis, like all institutions, has the potential to catalyze the hopes and frustrations that many of us feel in the face of issues like genocide and crimes against humanity. It can be a training ground for putting into action the old adage that no one can do everything, but everyone can do something.

This is my vision of what Brandeis -- and each of us -- is at its best and can continue to become. The post can be accessed here in its entirety.

Closing Loopholes in Sanctions Against Sudan

2011-07-06T09:04:00.004-04:00

America's sanctions against Sudan are the strictest in the world, yet the Bashir regime continues to commit grave human rights abuses with impunity. The Treasury Department already has all the authority it needs to prevent the legal money laundering that keeps cash and weapons flowing to Khartoum. Head over to the Enough Project to see how easy -- and how impactful -- this could be.

The Failure of Peacekeeping in Congo

2010-12-23T00:30:00.004-05:00

In my latest contribution to the Enough Project, a look at the legal obligations of UN peacekeepers. This past summer, more than 300 people in Mpofi, Congo were raped by members of a Rwandan militia over the span of three days. A UN peacekeeping battalion stationed only miles away had notice of the fact, if not the scale, of the attacks, and did nothing to intervene.

Read it here.

The Lord's Resistance Army and the American Midterm Elections

2010-09-29T07:58:00.002-04:00

In a new piece for the Enough Project, I discuss the real life perils of the mid-term elections. In addition to stalling any work on issues like tax cuts and campaign finance, our toxic political culture is at risk of preventing the United States from stopping the senseless mutilation and slaughter of the Lord's Resistance Army.

A law passed this May mandates that the President develop a strategy for working with our allies to confront the LRA and bring its leaders to justice. (The constitutionality of such a law is a topic for another day). But the timing of the law brings the strategy report due just after this November's elections, raising real concerns that partisan histrionics could lead to a much more muted, ineffective response. The result would be more of the same -- gridlock for American politicians, and unspeakable suffering for the LRA's victims.

With pressure, we can keep these two issues in perspective, and force our leaders to rise above the obstruction and soundbites of an election year. We can put a stop to the LRA's atrocities once and for all. But we don't have much time.

You can find the piece here.

New ICC guest piece at the Enough Project

2010-09-09T06:57:00.005-04:00

I am thrilled to announce a new partnership with the Enough Project -- the project to end genocide and crimes against humanity. A division of the Center for American Progress in Washington, D.C., Enough is bringing together activists, academics, professionals and policymakers to help build a permanent constituency to prevent genocide and crimes against humanity.

They have recently published a piece I authored on the ongoing crisis in Sudan and the ICC's role in not only bringing justice to victims, but in preventing victimization in the first place. I hope you will read it here.

Thoughts, New and Old, on the Duch Verdict

2010-08-20T20:43:00.008-04:00

There is, waiting to be written, a piece about the verdict recently rendered in the trial of Duch, the former math teacher-turned-torturer who once ran the infamous S-21 prison in Phnom Penh. While the verdict was predictable (Duch had, after all, confessed, but the civil law half of the ECCC’s hybrid structure does not permit such things, and so the trial had to go ahead anyway), and while much has been made about the lenient nature of the sentence, the part that interests and troubles me is the callousness and the self-imposed helplessness with which the tribunal responded to victims’ claims for reparations. This will come as no surprise to readers of this blog. But lacking the time to develop the legal arguments properly, I thought this would be appropriate instead.

Nothing more than one man’s view, what follows are my impressions upon visiting Tuol Sleng nearly three years ago, only days after the first hearing on Duch’s appeal against pre-trial detention. To my mind, they capture much of what the Court failed to do – the need to respect and acknowledge the suffering of the survivors. I offer them for your consideration, and in the hopes that the reparations straightjacket in which the ECCC has bound itself with the Duch verdict need not presage similar results in the remaining four trials.

Saturday, December 7, 2007

I came to Tuol Sleng Prison by myself this afternoon, which seemed the only appropriate way to do it. It’s not a place for conversation. Outside, all of the clichéd phrases in the guidebooks came true – the thing that makes it so haunting, so eerie, is how NORMAL it all looks. Palm trees line the courtyard alongside fourteen small, white graves – the last fourteen people who were tortured to death hours before the Vietnamese came to liberate the prison. The trunks of all the trees and the edges of the walkways are all painted white, just like in Ukraine. Birds sing and horns beep in the background. There’s a light breeze, and it’s about 78 degrees.

Behind the graves is a jungle gym structure – a big, basic flat arch, from which prisoners used to be hung, upside down, during interrogations, until they passed out. Then, their heads would be dunked into buckets of putrid water to revive them, and the questioning would continue.

It used to be a playground, like the one the kids who swarmed me at the Wat might have played on.

On the second floor of the first building, there are stories and photographs, interviews with relatives after the fact. Most tell the same story:

“He / she joined the revolution at nineteen years old, because it was the only thing to do. She wanted to go. We were starving. They would have killed her if she didn’t. I never saw her again.”

One told of a woman who only learned that her husband was dead when her mother saw his photo at Tuol Sleng. The old woman had dipped her scarf in water, it said, and wiped the grime from the photo. What else could she do?

So many of the pictures – the ones people wanted their loved ones remembered by – were taken on wedding days. So many of them had corresponding photos in the rooms below – stripped to their underclothes with their arms tied behind their backs, their faces bruised and bloodied. One after another after another.

Like anyone else would, I thought of my own wedding, a world away and only moments ago. I thought of my sister. My brothers-in-law.

I think of us as photographs, though I am sure it could never happen.

EVERYONE is always so sure it could never happen.

The guy who blew the whistle on Abu Ghraib is here, working in translation at the court. I found that out last night.

The pages of the logbook near the entrance to one of the rooms is filled with scribblings from Americans. Apologizing for our country. For having helped let this happen, for having learned nothing since.

It’s hot, here, in this place lined with palm trees and razor wire. Not so different from the climate in Cuba, I imagine. Not so different from Guantanamo Bay, yet lightyears from Washington, D.C., and the only 9 people who at this point can make it stop.

No trial could ever, ever make up for all of this, especially not twenty-five years later, but it is all we have, and so, we try.

I have gone back and forth all day between my head and my heart – something my new friend Stacey from another NGO called Ad HOC used to characterize the Duch decision last week – on the court. This is one of the few moral imperatives, I think. What do you do with someone like Duch, if the only way to rule with your heart is to break the law? How do you serve justice along with those who suffered, if the only way to follow the law could break their hearts? This is the last chance, for the leaders. Soon, they will all be dead. This is the only shot they have.

I found the room with the clothes today, that Forest had told me about. A huge pile of clothing, just tucked away behind a stairwell in a corner of the building that gave no exit. I had to go back up the way I had come to finally get out. There were no signs. No captions, just clothes, and a scattering of litter blowing around in the room.

Twelve people survived, out of 17,000.

There was a monk beside me in the upper room. His bright orange robes and electric blue bag were a Technicolor contrast to the black and white photos, where even the museum exhibits themselves have already yellowed and begun to curl at the edges.

So many people here spend part of their lives as monks. One who refused to disrobe under the Khmer Rouge, I read today, “was tied to a banana tree and killed.”

I was told on Friday that only one in ten college graduates in Cambodia finds a job. And only 10,000 people graduate a year. Meaning that there are only 1,000 jobs to go around each year. Many, then, go on to form NGOs, trying to work to rebuild their country, but then finding their livings tied to grant-writing and donors, never having anything sustainable. I’m not sure how those things connect, but I think they do.

The ground floor of the second building was classrooms that had been divided into cells not big enough to lie down in by crude brick and cement walls, with iron shackles still on the floor. At the end of the hall, there was an old, green chalkboard on the floor. I thought of my students, who used to joke about school being a prison. “You don’t know how to know what you’re saying,” I thought. “I hope we never do.”

The last room showed images and instruments of torture. And there was no equivocating on the fact that that’s what it was.

At least three of the methods showed various forms of simulated drowning. I wish I’d had Michael Mukasey with me. Jon Yoo backed out of the debate the ACLU is putting on in February at the school. No one’s surprised.

In the last corner of the museum, I overheard a curator telling a group that, under the Khmer Rouge, if two people fell in love without permission, the whole village was summoned together and the couple was slaughtered there in front of them, to serve as an example. On the other hand, if a man was not married by the time he was 20 or so, he would be forced to wed, in huge group ceremonies of 50 to 100 couples at a time. Men and women would sit across from each other in rows, and you were wedded to the one across from you. Sometimes people shifted chairs, and whole rows got the wrong spouse, but were expected to keep him or her. The theory was that this would create ties to the country, family bonds that would keep people from trying to flee, since they’d be unlikely to get out any way but alone.

I went to the gym afterwards – went swimming. It didn’t seem like the right thing to do after Tuol Sleng, but then NOTHING seemed like the right thing to so. So at least this was SOMETHING to do.

Rich Khmer women were playing ping-pong barefoot in their business suits on the other side of the weight room. Others were dancing the same, repetitive aerobics routine that’s already become so familiar I can name the next songs – all of which seem to sound and look, when danced, like “Cotton Eyed Joe.” I watched them dance, jump and hop, and I thought of the men with one leg and rusty crutches begging outside of Tuol Sleng, and I wondered which, if either of them, was the REAL Cambodia. But I guess that is always the way.

Proposals for the ICC Review Conference

2010-05-29T21:29:00.003-04:00

This Monday, May 31, while Americans enjoy the last hours of their barbecues and the unofficial beginning of summer, the review conference of the International Criminal Court (ICC) will convene in Kampala, Uganda. This week, through the generosity of one of my law school professors, I had the great fortune of attending the annual luncheon of the Alliance for Justice, whose keynote speaker was Harold Koh, the chief legal adviser to Hillary Clinton. Mr. Koh spoke with more eloquence and passion about the need for and legitimacy of international law than I had thought possible from a member of my own government. It gives me pride and hope to know that he will be one of the US delegates to the Kampala conference. With luck, the conference could result in something that would make the ICC palatable to the United States, greatly boosting the credibility of the institution.

The Conference is a great opportunity to reform the ICC, but some fear that it may ultimately bog down on polarizing issues rather than seizing the opportunity to increase its membership. This week's Economist frets that the conference may stagnate while attempting to craft a legal definition of the crime of aggression. The absence of such a definition was one of the things I found most frustrating when I began to study International Criminal Law, but I agree that to use the conference to define it would be to waste an opportunity.

The following was originally prepared as part of my (somewhat haughty, and ultimately unsuccessful) application to the White House Fellows Program. It outlines proposed changes to the ICC that I believe could greatly increase the chances of Senate ratification. I acknowledge, at the outset, that if one does not accept the premise that American participation is of inherent value to the ICC experiment, then the costs of the changes proposed herein may be, to some, unacceptably high. But I remain committed to the historical legacy of America as the driving force behind the Nuremberg Trials, and believe that international law will never have true legitimacy (or at least enforceability) if it does not have the participation of the only remaining superpower.

The memo presents some of the legal loopholes that might prevent prosecution of all but the worst atrocities by American soldiers. That is its purpose, though I do not necessarily agree personally with the outcome. It is written as a memorandum to President Obama, and argues for changes that would win Senate approval, not accolades from my colleagues in the world of international human rights. The application with which it was submitted constrained me to 500 words. I have left it in that form in the hopes that it will remain accessible, and that the necessary expansion will come as part of a broader discussion. Due to the nature of the application, it also does not contain citations, but these are easily available upon request. I simply haven't been able to figure out effective footnoting in a blog.

I look forward to your thoughts.

Overview

This coming May, the statute of the International Criminal Court (ICC) will be reviewed in Kampala, Uganda. This provides an opportunity to improve the Court while reaffirming America’s commitment to international law. The United States led the world in establishing the Nuremburg trials after WWII, but our rejection of the ICC in 2002 damaged our legacy and credibility. If the US were to ratify the treaty and agree to abide by its rules, we would become the first major power to do so. This would greatly enhance America’s credibility and its soft power. The two amendments proposed below would safeguard US sovereignty. These, coupled with proactively educating the public about the Court, would greatly increase the likelihood of Senate ratification.

Proposals

Eliminate propio motu investigations

Under the current treaty, ICC cases are initiated in one of three ways: State Party referral; Security Council referral; or propio motu investigations by the prosecutor. This last provision should be eliminated. It allows investigations to be initiated unilaterally, creating a risk that an ambitious prosecutor could use the ICC for political vendettas, or upset the balance of delicate negotiations without ever consulting the United Nations. European nations, which initially lobbied for this provision, would likely oppose the move; however, most other countries would likely accept the elimination of these investigations because American participation would so enhance the Court’s credibility.

Clarify Double Jeopardy

The ICC may not bring charges against a person who has been tried elsewhere for the same crime unless those proceedings fell below international standards or were “for the purpose of shielding the person concerned from criminal responsibility.” It is currently unclear who evaluates domestic proceeding and makes that determination. To ensure transparency and impartiality, the treaty should be amended to create a screening panel of independent legal experts. Only if the panel advises, and the Council approves should a second prosecution proceed.

Existing Mechanisms Protect Sovereignty

Contrary to opposition rhetoric, the treaty's remaining provisions provide robust protections for national sovereignty. Public education can counteract inflammatory misinformation about the ICC and smooth the path to ratification.

The Security Council can refer cases on its own initiative, which allows prosecution in non-signatory nations like Sudan. The US always retains its Security Council veto, thus protecting American interests while still supporting the work of the Court. Likewise, signatory nations may refer cases directly to the prosecutor, but the Security Council may defer such investigations indefinitely in the interest of international peace and stability. Furthermore, the ICC lacks jurisdiction unless a country is unwilling or unable to take genuine action. Any domestic procedure – even a decision not to prosecute – prevents trial.

Finally, because nations only become subject on the date of ratification, it would be impossible to prosecute incidents like the events at Abu Ghraib and Guantanamo Bay. If the treaty were amended as proposed, the United States would risk nothing by ratifying it, while the international community would take an important step towards ending impunity for humanity’s gravest crimes.

Victims’ Rights Suffer Another Blow in the Name of Expediency

2010-02-19T00:24:00.000-05:00

In a press release dated February 9, 2010, the ECCC announced major changes to victim participation at the Khmer Rouge Tribunal. As the trial of Nuon Chea opens, many had hoped the Court would reflect and improve upon the experiences of the ECCC's Civil Party regime. Instead, the tribunal has continued a worrying, if unsurprising trend of cutting back on participation to the point where one must seriously wonder what benefit, if any, victims can hope to gain from the proceedings.

  In Case Number One, the trial of Duch, Civil Parties were represented by four distinct legal teams. This was crucial. To have done otherwise would have been to cheapen the experience of what these survivors had been through -- to say, in essence, that they were all the same. This would have only added to the perception that the international community views Khmer Rouge survivors as an indistinct mass, with one dead stranger in a poor country being no different from the next. The Tribunal wisely rejected this path in Case Number One. Even though Duch’s trial was largely confined to the events that took place a Tuol Sleng -- the school that he turned into a torture center -- the Court recognized that victims had distinct experiences that could not be adequately represented by one umbrella team of attorneys.

  Predictably, managing victims, who had waited 30 years to confront their persecutors, proved easier on paper than in practice. When I left the Tribunal in February of 2008, Civil Parties were allowed to speak in open Court. They were, as the name implies and the rules envisioned, treated a true and full parties to the proceedings. See 31 U. Haw. L. Rev. 507, 544 (2008-2009). By September of that year, the Court backtracked, holding against the clear language of its own rules that Civil Parties could only speak through their lawyers. Id. at 549. But at least they still had distinct sets of lawyers to represent their individual interests. 

 No more.   

Henceforth, all Civil Parties, regardless of their experiences, will be represented by a single set of lawyers. Trying to draw the sting out of this, the Court has offered a sop to survivors. They have authorized the Victims Unit to set up alternative mechanisms by coordinating with NGOs -- something the Unit has already been doing for more than three years. Finally, the Court once again kicked the can down the road on the question of reparations, leaving undefined the single most important issue for many victims. The language of the rule changes has still not been made publicly available. But from the Court's press release, major problems are already apparent.  

Attorneys

  Beginning with Case Number Two, all legal strategy for victims will be consolidated in two attorneys, “who will bear ultimate responsibility for the overall advocacy, strategy and in-court presentation of the interests of the consolidated group of Civil Parties at the trial stage and beyond.”   

The amendments appear to make no provision for the inevitable situation wherein Civil Parties disagree as to what the aims of the group should be. The press release notes that Civil Parties may still retain their own attorneys to some degree, but that all activities must be coordinated through the two chief lawyers, who will exercise a veto that is likely to quash any dissent in the name of expediency.   

Worse, this consolidated victims' representation team has been removed from the Victims' Unit, and will now " be located within a separate section of the ECCC." Ostensibly, "this is designed to safeguard the independence of the Civil Party Lead Co-Lawyers." But its practical effect will be to insulate the lawyers from their clients.

Since the outset, the Victims' Unit was intended as the sole mechanism through which Victims could access the Court. The new rules, so far as we can currently tell, do not alter this arrangement. Thus, if “their” lawyers are no longer housed within that unit, victims may find themselves shut out entirely, having fallen through the gap between what was promised and what is possible under the new rules.

Placing this new team of lawyers in a separate section of the Court will likely result in a streamlined process -- allowing the team to represent the interests of victims without the inconvenience of having to hear from them terribly often about what their views and goals are. While doubtless well-intentioned and designed only to speed the trials along, this smacks of neo-colonialism, implying that lawyers (likely foreign lawyers) know more about what is best for Cambodian victims than do the victims themselves.   

NGO Activities  

The segregation of the victims' lawyers from the Victims Unit is supposedly designed to make it "possible for the Victims Support Section to fulfill its enhanced responsibilities to develop new victim-oriented programs." As the Court woodenly informs us:

such measures may encompass a broader range of services, as well as a more inclusive cross-section of victims than those who are admitted as Civil Parties in cases before the ECCC. The amended rules clarify that these measures may be developed in collaboration with governmental and non-governmental agencies external to the ECCC. This creates the possibility to develop more ambitious programs than would otherwise be achievable within the ECCC’s existing capacities and resources.

Roughly translated, this amounts to an admission that Civil Party participation will not come close to fulfilling the needs of victims, and that the Court has essentially given up on trying. The Unit is now being told to go to the NGO community and try to devise alternative programs.

On its face, this is an admirable admission of the limitations of any judicial process to yield meaningful justice. After all, civil society groups are rooted in and have been serving Cambodia long before the ECCC came along, and they will be there long afterward. In many ways, coordinating with groups who already know the community is the most sustainable solution possible.

The problem is, it isn't new. The Victims Unit has been reaching out to and trying to coordinate its efforts with NGOs since it opened in November 2007. See 31 U. Haw. L. Rev. at 538. The vast numbers of Civil Party applications are due in large part to the efforts of these groups. In fact, it was often these civil society organizations that provided inroads for the Victims Unit to access communities where the UN might not be trusted, but where local NGOs are. For the ECCC to now trot this out, as if it were a new invention, in a transparent and cynical attempt to soften the blow of this sharply scaled-back participation. It insults the intelligence both of victims and those who follow the Court to presume that no one would notice old wine in a new bottle.

Reparations

Finally, the Court ends by "reaffirm[ing] the concept of a single claim for collective and moral reparation on behalf of the consolidated group of Civil Parties." This sounds remarkably like Justice Roberts of the US Supreme Court, who has made a name for himself by overruling cases while saying, with a straight face, that he is adhering to precedent.

In three years I have been following the ECCC, the concept of a "single claim" for reparations has never been affirmed, let alone reaffirmed.

When the Victims Unit first opened its doors in November 2007, one of its most challenging tasks was providing an answer to the thousands who wanted, rightly so, to know what ECCC participation could do for them. At first, the answer was impossible to come by. The Internal Rules authorize only “collective and moral reparations,” and offer no guidance on the meaning of those terms. Hoping to gain some insight into what Cambodians might find most acceptable, the first participation forms included a box where victims could fill in what types of reparations they hoped to receive. The form was criticized for being confusing, and for not making clear to applicants that only Civil Parties, not all victims, would be entitled to reparations. Nonetheless, this was still something.

  At the time I left the Court, in February 2008, there was speculation that these reparations would vary across the country. They might take the form of a school or a road in a village, or perhaps of funds to rebuild a pagoda that was destroyed by the Khmer Rouge. Literature, outreach programs, and radio appearances by Court staff represented precisely this scenario to hundreds, if not thousands, of Cambodians. During that time, no one seems to have mentioned the idea that there would be only one "single claim." It seems likely that the Court would have seen support for its activities drop precipitously if this had been proposed.

The Internal Rules have been amended four times in the ECCC's short history, but none of these amendments even hint at what the Court now claims to be "reaffirming." Worse still, the question of what form these reparations might take has again been sidestepped. Rather, "a number of rules will be fine-tuned by a later Plenary Session addressing the details of this claim. In addition, a number of other consequential amendments will also be addressed at a later stage."

In a recent speech at Rutgers University, the US Ambassador-at-Large for war crimes issues, Clint Williamson, described the ECCC as having had "more of an impact on the population than any court that has been created." He noted that “15,000 Cambodians thus far have attended proceedings and the ECCC has introduced a whole new generation of Cambodians to their history.” While handing out Khmer Rouge textbooks on a recent trip, he said, "the kids couldn't take their noses out of the books."

With the ECCC once again changing the rules and further limiting access to the tribunal, that impact may has been blunted, and the Court’s legacy and credibility have once more been called into question.

Why Coakley Lost

2010-01-19T22:10:00.001-05:00

Typically, I confine myself to issues touching on international matters. Tonight, I make a brief exception.

It is tempting to use this as a platform to say, "I am from Massachusetts, and I tried, and I am sorry." But that is not what happened. The people of Massachusetts did not fail the nation any more than Scott Brown actually "won" an election.

Martha Coakley and those surrounding her failed Massachusetts and the country with such single-minded focus that it almost seems intentional.

This is the result of an arrogant, insulated campaign that truly believed all they needed was a Twitter account and a Facebook page to win an election.

That, in the brief time I worked for them, told me that I should "just write something that sounds democratic" to put on the candidate's website for her healthcare positions.

That refused to debate, refused to get a speechwriter, and refused to educate itself.

That believed the only thing it needed to do was remind Massachusetts that the candidate was a woman, and that would be enough.

Martha Coakley deserved to lose, and her campaign advisers deserve to be ashamed and unemployed.

But America does not deserve the result.

Dubai and the UN

2010-01-17T22:26:00.000-05:00

I blame the bar exam (passed!), and the whole process of transitioning into a new phase of life, for my prolonged absence. That is going to change. For today, I only have something brief, and the story itself is likely worth quite a bit more than my insights.

In a story that seems to be covered only in the Middle Eastern press, the government of Dubai has announced that it is "fully prepared" to host the headquarters of the United Nations, in the event that officials decide to move the organization's headquarters out of New York. Apparently, this offer has been prompted by the UAE's "appreciation of the vital role the United Nations plays in all areas, and in the protection of international peace and security and economic development." I do not think for a moment that such a change is likely to happen, but it highlights several themes.

The first is that, for all its flaws, the UN is still seen in many parts of the world as a (more) impartial arbiter and protector of the interests of nations who lack the clout to get what they need or want unilaterally, and thus must rely on collective action. This, from where I sit, is a positive thing, as engagement and dialogue are preferable to isolation or hasty, self-interested decisions.

The second is that, for all the strides President Obama has made in restoring the American image abroad, many of these can still be seen as unilateral reparations to compensate for the Bush administration's unilateral mistakes. While we may be reaching out to the world, many still do not see us as working with the world. Dubai's offer can be read as an ambitious effort to fill that gap -- to say that the world community should leave America and rally around a nation that will listen to them. Putting aside its implausibility, the fact that this statement is being made by one of the most stable nations in the Middle East is a striking development.

The third, which I hope to expand on in future posts, further underlines how the UN's very structure, based on the post-WWII power arrangements, is poorly adapted to the modern world. Middle Eastern nations received little to no consideration in 1948 -- they were simply not considered a force to be taken seriously. Now, when so many of the crucial issues of our age are centered in that region, it is long past time to revisit the UN charter and restructure the organization to reflect the world in which we live. It has done well in preventing war on the continent, which was, admittedly, its primary aim after the War. But it remains ill suited to confronting the types of collective action problems like climate change that we face in 2010. When nations do not feel they have a voice at the UN, it is hard for the UN to rally their support for things like enacting costly emissions cuts in their own countries for the benefit of the whole planet.

If nothing else, the UAE's offer is a reflection of the desire of smaller nations to gain both influence with and favor from the UN. We ignore, dismiss, or belittle these trends at our own peril.

ECCC Continues to Miss the Point

2009-06-11T22:15:00.000-04:00

In the weeks since my last posting, much ink has been spilled and many clicks have been logged about the recent appointment of Dr. Helen Jarvis as head of the Victims Unit at the ECCC. Finally responding to this criticism, Court spokesman Lars Olsen read yesterday from a letter in which the Court dismissed allegations about Dr. Jarvis' alleged biases, noting that "every member of staff has the right to their personal, political views." This is correct, but as one of the defense lawyers for Nuon Chea noted, it missed the point.

The real controversy here should not be about any individual, but about the victims of the Khmer Rouge who once again are at risk of being sidelined in a struggle over politics and prestige among western powers and the ruling Cambodian elite. A letter to the editor in yesterday's Phnom Penh Post put the issue eloquently and succinctly.

Norman Pentelovitch, a legal associate at the Documentation Center of Cambodia, wrote:

When the dust settles on the proceedings before the ECCC, the measure of its success or failure in the eyes of Cambodian survivors may well rest on the efficiency, organisation and compassion of the Victims' Unit. If it is run with the same lack of energy, insight and care with regard to actually reaching Cambodians that has thus far characterised the work of the Public Affairs Section, however successful the prosecutions may be, the ECCC will fail to realise its full potential.

Those who have defended Dr. Jarvis have framed this as an attack on a staff member. What Mr. Pentelovitch's letter does, however, and what I hope to contribute to this debate, is to refocus the concern, not on the shortcomings of any individual, but on the implications of this change for the victims. The Victims Unit, as the one arm of the Court that might hope to bring meaningful justice 30 years after the atrocities of the Khmer Rouge, has what Mr. Mr. Pentelovitch rightly terms a "compelling mandate." To use his words, this:

requires an equally compelling leader, a Cambodian with experience working with victims, and with an ability to prioritise resources and goals appropriately. Dr Jarvis does not have the relevant professional experience and has not demonstrated the necessary qualities in her role as head of the Public Affairs Section to lead the Victims' Unit.

I harbor no illusions that the ECCC will ever ask Dr. Jarvis to step aside, nor are they likely to offer a satisfactory explanation of why the Court believes that she is qualified for this position. In the long run, these are the moments for which the ECCC and the United Nations will be judged. If the Court refuses to respond to these allegations, they will once again be marginalizing victims in the name of political expediency, which would only bolster those who claim that the Court is nothing more than an exercise in neo-colonial guilt assuagement.

As many have noted, myself included, the ECCC is far from perfect. Its very structure and jurisdictional limitations have severely limited what it can achieve. But it can do more than this. The entire concept of the Victims Unit, and the tireless efforts of those who have worked there since its inception, are based on the belief that this Court can bring some sense of justice, flaws and all, to those whom the rest of the world refused to help thirty years ago.

If the ECCC is serious about this mission, Dr. Jarvis should announce that she will hold the directorship of the Victims' Unit only until a thorough and competitive job search can be conducted, in which she is welcome to submit her name as a candidate, to ensure that the person who holds this crucial position is both highly qualified and free from the taint of political bias.

The Court's practice gives me no reason to believe that this will happen. But the victims deserve no less.

ECCC Victims Unit Change Threatens Credibility

2009-05-31T11:30:00.000-04:00

In the long tale of good intentions gone awry that is the Extraordinary Chambers in the Courts of Cambodia, the one area of the Court that had continued to give me hope was the Victims Unit. As I have written elsewhere, the VU is a pioneering experiment in international criminal law, combining the victims’ participation rights of the civil law system with a war crimes tribunal to allow victims a right to present their own case against those accused of the slaughter of nearly 1.5 million Cambodians under the Khmer Rouge regime.

Sadly, the VU now appears to have fallen victim to political influences, as well. On May 11, victims’ lawyers filed a motion with the court calling on the UN to release the results of its investigation into corruption at the ECCC. The next day, these lawyers instead found that they themselves had now become the target of investigations to determine whether their work would “discredit” the court. The following Monday, the head of the Victims Unit, a courageous, dedicated professional with a long career in international human rights, abruptly resigned, to be replaced by the Court’s Public Affairs officer, a former librarian from Australia.

In the May18 press release announcing this change, the ECCC stated that it was “taking steps to strengthen and streamline its activities in the areas of Public Affairs, Outreach and the Victims Unit.” On its face, this is the type of neutral language that only a lawyer could love. It is mildly forceful, and has active verbs like “strengthen” and “streamline” that are hard to quarrel with, especially at an institution that is not known for either its strength or its efficiency. But a closer look shows that these changes could well threaten the independence and effectiveness of the Victims Unit, and perhaps mark the end of the ECCC’s last shreds of legitimacy.

Nearly a year ago now, bowing to increasing pressure from the international community, the United Nations began an investigation into charges of corruption and graft at the ECCC. In August of last year, the Court decided to supplement this effort by appointing Dr. Helen Jarvis, then the head of Public Affairs for the ECCC, as the Court’s “ethics monitor.” This was intended to shed light on accusations at the Court and dispel any fears that corruption would taint the legitimacy of any verdict rendered by the Tribunal. Shortly after Dr. Jarvis’ appointment, however, it was announced that the Cambodian government would review all future allegations in secret. Not surprisingly, allegations of corruption at the court continue, and the details of the UN’s investigation have still not been made public.

The victims of the Khmer Rouge apparently decided that they’d had enough. According to a Phnom Penh Post article published on May 12, lawyers for the civil party victims filed a motion with the Court demanding that the results of the UN investigation be made public. In a press release, the lawyers stated that:

“The existence of the [UN report] is directly relevant to the proceedings in the Duch trial, as its publication after the close of the proceedings may expose the trial judgment to claims ... that corruption within the ECCC rendered the trial unfair.”

In what seemed to be a reference to Dr. Jarvis’ work as “ethics monitor,” the lawyers went on to say that:

"We were hoping that there would be an anti-corruption mechanism in place by now, but the government and the UN have decided against this. We are now in the position where we are four weeks into the first trial and the allegations we are reading about are actually getting worse ... it's a ticking bomb.

"The victims,” he emphasized, “know that it is not closure if the verdict is tainted."

The Court has thus far not responded to the motion. However, in a rare moment of rapid response, the Cambodian government announced an immediate change in policy that could only have been triggered by the civil party filing.

On Tuesday, May 12, the day after the filing, a spokesman for Cambodia’s Council of Ministers announced that the Cambodian government was now monitoring “all international staff” at the Tribunal, saying: “the international side has corruption, too.” When reporters pointed out that this amounted to a tacit admission of still-undisclosed corruption on the Cambodian side of the Court, he backed off slightly, saying that no evidence of corruption on the Cambodian side had yet emerged.

The spokesman went on to emphasize that these new investigations will include “some civil party lawyers and interns working at the UN-backed court.” When asked to specify the type of “corruption” of which these international lawyers were suspected, he said: “This is not interference. I am not threatening anyone. We are keeping watch and looking for information that might discredit the ECCC."

Not surprisingly, he did not clarify what sorts of things might “discredit” the court, though one suspects that probing around things that the Cambodian government might prefer remain secret would qualify.

And so, rather than addressing the serious accusations raised by the victims, the Cambodian government has decided instead to investigate the lawyers who raised the concern. This is precisely the same thing that happened in January in response to corruption allegations raised by the Defense – rather than responding to the charges, the Cambodian judges threatened to sue the defense lawyers.

But the most disturbing news came the following Monday, May 18, when it was announced that the head of the Victims Unit, KEAT Bophal, had suddenly resigned. Ms. Bophal, who had formerly worked for the UN High Commissioner for Human Rights, had been director of the Unit for a year and a half. While no proof has been offered of a connection between these events, it does seem curious that her abrupt departure came only days after victims’ lawyers became emboldened to challenge corruption at the ECCC.

The choice of her replacement is telling, and hints that the VU’s focus may be about to shift from pursuing justice for victims to maintaining peace with Cambodia’s ruling politicians. While Ms. Bophal had a lengthy career in the field of human rights advocacy before assuming the directorship of the Victims Unit, Dr. Jarvis is a former librarian who has until this point served as the ECCC’s Public Affairs Officer. Before joining the Court, it has been reported that she was a longtime advisor to the Cambodian Deputy Prime Minister, Sok An, which has led some to question her impartiality.

Dr. Jarvis' work at the Tribunal thus far has not been to advocate for victims – it has been to advocate for the Court itself. As public affairs officer, it was Dr. Jarvis' job to put the best face on the near-constant scandals and accusations of corruption that have plagued the ECCC. It is an understandable position, and one that is essential to ensuring that the Court continues to function. But it is fundamentally incompatible with the interests of victims, for whom a fair trial is paramount. As months worth of news stories have demonstrated, a fair trial and the continuation of business as usual at the ECCC cannot be reconciled with one another.

The real concern, however, should not be Dr. Jarvis’ personal qualifications to lead the VU, nor any allegations of ties to the Cambodian government, unless and until these can be substantiated. Rather, it is the sheer callousness of the decision to appoint her in this manner. While it has not been proven that the VU’s leadership changed hands due to political pressure, it certainly seems that way. And in many respects, the continuing impression that the ECCC operates on political expediency, rather than the rule of law, is more damaging to the trials than a full disclosure of any alleged corruption could ever be.

The choice of Dr. Jarvis for this position is curious for several reasons. First, it seems inconsistent with the spirit, if not the letter of the ECCC law, which holds that Cambodians should comprise the majority at every level of this hybrid institution. This same principle was applied in the previous structuring of the VU. Ms. Bophal was appointed as head of the Victims Unit in February 2008. Despite the fact that the ECCC had been operational for over a year at that point, and that the Victims Unit had been up and running for nearly four months, much of the implementation of the Unit’s mandate was delayed until a Cambodian was named as the director. Such was the importance rightly attached to ensuring that the victims of the Khmer Rouge be represented by one of their own. Alas, the importance of this symbolism seems to have waned in comparison with the Court's need to control the corruption story.

Secondly, Dr. Jarvis herself has been intimately involved with the corruption investigations for nearly a year now. Her appointment, coming so quickly on the heels of a civil party motion that criticized her own ethics investigation, cannot help but be tainted, even if no conflict of interests actually exists. Even if no overt pressure is henceforth placed upon civil party lawyers, the optics of this situation are all wrong, as a former Public Affairs Officer should surely know.

The culture of intimidation at the Court has not improved since Dr. Jarvis’ appointment. Just a few days ago, on May 26, the Post reported that a Cambodian government official ominously warned journalists to "be more professional" in their reporting about the Court, warning that critical reporting of the tribunal "could cause justice to escape the Cambodian people.” The minister, Pen Samitthy, coyly declined to say that such reporting might cause the UN to pull out of the ECCC. However, the words he chose apply with equal force to concerns about the recent changes at the Victims Unit.

"We have the saying," he told journalists last week, "if there is smoke, there is fire."

America Seeks a Seat

2009-04-07T20:18:00.000-04:00

One week ago, late in the afternoon on Tuesday, March 31, the United States announced that it will seek a seat on the UN Human Rights Council. This, as the Washington Post points out, is a reversal of a "decision by the Bush administration to shun the U.N.'s premier rights body to protest the repressive states among its membership."

Readers of this blog will not mistake me for one who has made excuses for the shortcomings of the HRC, nor defended its politically-selective and unbalanced interpretation of its mandate. Nor am I one who believes that America is a paragon of adherence to international human rights law. Our hypocrisy on the issue is well-documented.

Still, this is a pebble in the sea that might yet produce a wave. Coming along with the President's "reintroduction" tour overseas, it is one of the more encouraging things I have seen in a very long time. While the Bush administration claimed that boycotting the Council was an act of "protest" against repressive regimes, I suspect it had much more to do with a hope that precisely this would happen -- that the Council would fail, and that the UN would be discredited.

The reengagement of America with the cause of international human rights law will not produce a revolution overnight. But it will bring an important voice a conversation that has been one-sided for far too long. If we're lucky, we may all yet learn something.

AIG and Religious Defamation

2009-03-29T17:56:00.000-04:00

In recent weeks, two well-intentioned attempts to punish greed and combat religious bigotry have threatened far greater harm to democracy and international law than the evils they sought to address.

In Washington, the House of Representatives voted overwhelmingly to tax the recipients of bonuses at AIG nearly into oblivion.

In Geneva, the UN Human Rights Council sought to stem the tide of religious hatred by passing a resolution that calls on member states to “combat defamation of religions and incitement to religious hatred in general.”

Both of these actions threaten to undermine something fundamental about our legal system and our values in the name of short-term grandstanding.

AIG

Last week, I had the dubious honor of being on Capitol Hill to witness an outpouring of populist outrage the likes of which I never dreamed I would see in the United States. Bankers and government officials alike were castigated in the House of Representatives over the excesses of AIG. Two of the most enthusiastic questioners, both of whom were remarkably pointed and incisive in their criticisms, were Reps. Capuano and Frank, both from my home state of Massachusetts. They captured perfectly the outrage that many people feel about the excesses that have brought the world to its financial knees.

The excesses of AIG, however, were the excesses of each and every one of us, at whose behest our elected officials weakened our financial laws over the past three decades and allowed this to happen. We believed, perhaps more than any time in American history, that we all might someday be rich – that we all had a fundamental right, not just to housing, as declared by the International Covenant on Economic and Social Rights, but to own that house, as embodied by a peculiarly American version of capitalist exceptionalism and entitlement. So we clamored for the government to get out of the way and stop preventing us from getting wealthy.

But when the bottom all fell out of it, neither we nor our leaders were willing to own up to our part in bringing this about. We wanted blood. And we were untroubled by the idea that legal niceties might prevent us from getting it.

I have always considered myself a progressive. I believe the wealthiest among us have a moral obligation to pay higher taxes that are, in turn, spent to provide basic services and benefits to every American. I believe providing for those basic needs should come before paying for another stealth bomber or a bunker-buster or even the national parks.

I believe that the law should punish those who use high-paid lawyers to evade such obligations, as it should punish the attorneys and accountants who help them to do so. I believe that they owe this obligation because it is only in America that they could have achieved such wealth in the first place, and that the rest of us, in some sense, have served as the underwriters of their success. And we deserve a return on our investment.

And so the idea of taxing executives who made millions by destroying our economy holds some appeal. Likewise, the idea proposed by the UN Human Rights Council to silence those who sow the seeds of religious hatred is equally compelling.

But they are both fundamentally, dangerously, the wrong thing to do.

In each of these gestures, we risk the loss of something that defines us – a right of free speech and a right to receive fair notice before one can be punished by a higher authority, be it the UN or a national government. (I suspend, for the remainder of this piece, disbelief about the UN’s ability to enforce even a speeding ticket. For more on this view, please see earlier posts.)

The tax bill against the bonuses is most likely unconstitutional on at least one of several grounds. It is, in its purest form, an ex post facto law, forbidden by Article I, §9 cl. 3, which states that: “No Bill of Attainder or ex post facto Law shall be passed.”

The idea behind this prohibition is that it is fundamentally unfair for the government to allow you to engage in behavior that is perfectly legal at the time you’re doing it and then later change the law and punish you for it.

The Courts have narrowed the interpretation of this over the years to provide that only criminal laws cannot be passed ex post facto. The argument then goes that, since the tax code is not criminal law, then it can be changed without notice and applied retroactively without running afoul of the constitution. So, if Congress raises the tax on your income bracket by 2%, it can legally apply to the money you made last month, rather than only what you make from that day forward.

Fine. But that argument is based on the premise that the tax code applies to all of us, and that it is designed to raise revenue, not to punish.

Which raises problems with the first part of the clause – Bills of Attainder. These were, in colonial times, laws passed by the crown that would retroactively sentence named individuals to death without trial. Given that many of the men who wrote the constitution had good reason to fear that King George would be inclined to write such laws about them, it is easy to understand why they included this prohibition.

Over the years, Courts have expanded the definition to include any laws that are intended to inflict punishment, rather than only those that sentence someone to death. The basic idea is that you can’t single someone out for punishment that is not applicable to everyone else. You can forbid certain types of conduct, but you can’t create a double standard forbidding conduct only by a few people.

Which brings us back to AIG. The bill passed by the House (HR 1586) is very careful not to name any individuals. Rather, it seeks to impose a 90% tax on bonuses received by TARP recipients. It doesn’t single anyone out, and doesn’t say this is meant to be punitive. This line of reasoning, if believed, would loop us back to the “taxes are not punishment” argument, and things would be fine in Constitution Land.

Except that the House has held hours and hours of hearings blasting the executives of this specific company, and made no secret that this bill was intended to punish them for their excesses. Sen. Chuck Grassley dispelled any remaining doubts on the matter (and any doubts that only the House is prone to overblown, unhelpful rhetoric) when he went on the radio and informed the nation that the AIG executives should give the money back or commit ritual suicide.

Only a Court that is willfully ignorant of any form of legislative history could possibly buy the argument that this bill was not meant to be a punishment of specific individuals. This is punishment, it is targeted, and it is a very dangerous precedent.

I completely agree that it would be morally satisfying to get back the $165 million + that has been paid out to the financial products division at AIG. It would make us all feel somehow less foolish for having allowed this to happen right under our noses and for not having taken any action to stop it.

But not like this. If we bend the Constitution this time, we may be able to go after a few “bad people” who “don’t deserve” the protection of our laws. The problem, of course, is that once you give government the power to do this, it becomes impossible to find a principled way of determining who the next round of “bad people” are.

This was a cornerstone of George Bush’s view of the world – that he knew who the bad people were, and that he had the authority to change the rules as necessary to go after them. This is a view that I had thought we’d thoroughly rejected in November.

As my mother used to say, if someone does something bad to you, and you do something bad back to get even, then you’re just as bad as they are.

Defamation

The same goes, in large part, for the resolution passed over the weekend by the UN’s Human Rights Council, attempting to forbid the “defamation of religion.” At first glance, it seems like a great idea – if we forbid the type of hate speech that demonizes religions, we may be able to cut down on the actions that usually flow from it. Far too often, hate speech leads to hate crimes, and it is of little comfort to punish the perpetrator after the fact if it might have been possible to stop the crime before it ever happened.

On that level, the resolution makes some instinctive sense. The rise in religious tension around the world, especially since September 11, has been remarkable. We have all seen the explosion of rhetoric and violence that have mostly pitted the “West” against the “Muslim” world. From attacks on innocent individuals to the rise of leaders like Mahmoud Ahmadinijad and George Bush, religious fervor has made the world a much more dangerous place over the past decade.

The use of religion to define “us” against “them” has only served to drive people deeper into their corners. And while in those corners, both sides have plotted wars and tinkered with nuclear weapons, driving us further from each other and closer to destruction.

Perhaps, one might wonder, if it was made illegal to criticize religions, some of this tension might abate. We would have to address and criticize each other’s actions, not our beliefs, and it would be harder to get so swept up in the dangerous certainty of our own righteousness.

But like the move to retroactively tax AIG into extinction, this is bad policy being pushed for a good reason.

One of the core principles behind by the US Bill of Rights and the International Covenant on Civil and Political Rights, which the UN’s Human Rights Council was created to uphold, is the right to free speech. Free speech is, of course, often the most inconvenient and troublesome of our rights. We love it when we’re the ones whose speech is protected, but look for loopholes when we’d like to silence someone else’s speech that we’d rather not hear.

Defamation, at least in the US, provides a small, carefully circumscribed exception to free speech, and allows individuals to sue when false, malicious things are said about them. The idea is that one cannot tell lies about and ruin the reputation of another person under the guise of free expression.

But there is no corollary protection for an idea. Criticism of an idea or an institution is not defamation – it is debate.

The problem of prohibiting “defamation of religion” is precisely the same as that posed by giving Congress the power to levy unconstitutional taxes against “bad people.” Who gets to say which people are “bad”? Who gets to say when criticism of an idea suddenly morphs into defamation of religion?

What about the massive outcry against the Pope, who recently went to Africa and told thousands of his HIV-positive followers to stop using condoms because it did not help to stop the spread of the virus? Is pointing out the sheer scientific fallacy of his argument defamatory of the Catholic Church?

What about the rights of Muslim women who are denied the basic human rights to an education, to self-expression, or to self-determination because of religious laws that say they are inferior because of their gender? Is it defamatory to speak out on their behalf?

What about the women who have had acid thrown in their faces by religious zealots for daring to walk in public without hiding behind a veil? Is it defamation to criticize the warped distortion of religion that the perpetrators believed sanctioned this abuse?

I am not one of those who believes that these perversions of religious belief represent a true or authentic expression of any faith. But the danger inherent in silencing debate about these subjects far outweighs the danger posed by misinformation and misconception getting out there as a result of the conversation.

The solution to the problem of religious intolerance will only be found through more speech, not less. If someone is spreading lies about you, it may seem attractive to simply shut down the conversation. But that poses two problems. First, it is far from clear that the right to not have your religion defamed should be greater than your opponent’s right to free speech. And secondly, even if you succeed in silencing religious critics, you have sent a message to the world that you cannot win on the substance of your argument, but only by muzzling your detractors.

So the argument goes something like this:

It is claimed that a particular religion is backwards, oppressive, or what have you. Rather than offering evidence to refute this claim, the religion instead turns to this new UNHRC resolution, which allows it to silence its critics on the grounds that they are “defaming” the faith.

I disagree with you, so now I want the law to shut you up. Which is, by definition, oppressive.

Wait and see how many oppressive regimes suddenly find a newfound respect for international law as a result of this resolution. Under the cover of “preventing religious defamation,” governments will now be able to justify silencing critics, jailing dissidents and marginalizing those with minority views. And they will be able to do so, not just in disregard of the minority’s human rights, but in the name of human rights – as endorsed by the UN body charged with defining and protecting them.

Using the law as a weapon to go after those with contrary views is dangerous under any circumstances. Doing so in the face of other fundamental rights like the protection of free speech or constitutional limits on Congressional power threatens to undermine the foundations upon which we have built everything about our society that is worth defending.

It makes no difference that both of these proposals spring from good intentions. Rights that can be changed to meet political exigencies are not rights at all – they are platitudes. Both the United Nations and the Democratic Party, which led the lynching of AIG in the House of Representatives, have spent the past eight years decrying George Bush for his willingness to brush aside the Constitution, the Bill of Rights, and international law when they presented obstacles.

Their opposition, and the moral force that justified it did not come simply from the fact that the UN or the Democrats disagreed with what Bush wanted to do. Rather, it came from a fundamental problem with how he wanted to do it.

These principles don’t apply with any less force when it is our actions that must be constrained. Rather, they must apply even moreso, lest they lose all meaning.

Doing the Right Thing

2009-03-21T17:14:00.000-04:00

It has been far too long since I have written -- the end of law school and the collapse of the economy have collectively claimed more of my time than I had ever anticipated. But I did want to share a sign of hope, like a small green shoot sprouting up through the layers of ash with which the past administration left us.

Last week, the Obama administration announced "that it will endorse a French-sponsored U.N. General Assembly declaration calling for the decriminalization of homosexuality, reversing a decision by the Bush administration last December to withhold U.S. support."

The United States is rejoining the liberal democracies of the world, standing up for human rights, and for a sense of basic fairness. Here's hoping that same spirit continues to carry us through the other challenges left to tackle.

Reprobates and Rebirth

2009-01-19T22:31:00.000-05:00

At first glance, the editorial board of the Pittsburgh Tribune-Review would appear to have little in common with Zalmay Khalilzad, the Afghan-born, Lebanese-educated man who will, on Tuesday, become America’s former ambassador to the United Nations. But in the past few days, each has embodied, in their own ways, the worst of American arrogance towards the rest of the world. Each has trumpeted the dying words of a dangerous philosophy. And on this evening, less than twenty-four hours before the inauguration of Barack Obama, each has been thoroughly repudiated.

The Tribune has characterized the United Nations as “the company of reprobates at Turtle Bay,” a reference to the New York neighborhood in which the UN headquarters is located. It has given the megaphone of its editorial page over to Nathan Tabor, a man who has called for the total dissolution of the “beast on the East River,” because he claims it represents a threat to American sovereignty. As such, it should come as no surprise that the Tribune is both critical of the UN as an institution, and cynical about the prospects for real reform. No one who has read my previous posts will doubt that I join them in many of their criticisms. But the world is not yet so jaded as to make reform and progress impossible.

In an article in today’s paper, the Tribune recites a series of proposals from the Heritage Foundation that include the tried-and-true tactic of simply withholding US funding from the UN as a way to induce reform. What the editorial fails to mention is that America has been withholding UN dues for over a decade. The current arrears top $1.3 billion dollars, and yet the lack of corresponding reform at the UN is well known.

More discouraging, the paper suggests that President Obama adopt John McCain’s reckless suggestion that the United Nations be abandoned altogether in favor of a “league of democracies.” In a campaign that had no shortage of ill-conceived proposals, this was one of Senator McCain’s most striking, and most disappointing to those who once admired him, even as they disagreed with him. Appealing to crude patriotism and an ill-conceived belief that the only countries worthy of dialogue are those most similar to the US, McCain proposed: “a new global compact - a League of Democracies - that can harness the vast influence of the more than 100 democratic nations around the world to advance our values and defend our shared interests.”

McCain's proposal would have deliberately heightened tensions between Western nations and the Kremlin by ejecting Russia from the G-8 in favor of “the solidarity of NATO, from the Baltic to the Black Sea.” The formation of such a “good guys only” club might have been morally satisfying, but one must wonder what Russia’s incentive would then be to restore gas flows to Europe, having already been branded as an “outsider.” Among those who rejected this plan and called instead for strengthening the UN was Mikhail Gorbachev, who is not unfamiliar with the importance of talking to countries that don’t agree with you.

The First Amendment gave both Mr. McCain and the Pittsburgh Tribune Review the full right to put forward their views into what Justice Oliver Wendall Holmes called “the marketplace of ideas.” And today, America can take pride in the fact that that marketplace is still an active one, and that fewer and fewer of its citizens are willing to buy such shoddy goods.

The contrast between the outgoing and incoming American Ambassadors to the UN could not be more striking. In his parting remarks over the weekend, the current ambassador, Zalmay Khalilzad, illustrated just how little the Bush administration understood about international diplomacy, and just how much work will confront his successor, Susan Rice.

Khalilzad, who was appointed in early 2007 after the disastrous tenure of John Bolton, spent nearly two years representing America in the UN. As such, one might expect that he would have a few complaints about UN inefficiencies and shortcomings, which I will be the first to acknowledge. But one would also have hoped that, being surrounded by representatives from 191 other nations, encompassing some of the brightest humans on the planet, he might also have learned something, as well.

Apparently, like the man who appointed him, Khalilzad sees such endeavors, not as opportunities from which he can learn, but as mirrors that simply reflect back what he already believes to be true. In a farewell interview with the Associated Press, the outgoing ambassador touted as his major lesson the realization that no country has the “comprehensiveness of power” that the United States does. As America’s chief diplomatic emissary to the world, Khalilzad chose as his parting words a reminder (threat?) to the world that “even in our weakest moments, we are stronger than anyone else, and it would be a mistake on the part of anyone to bet against the United States.”

Without a hint of irony, these musings were offered in the same breath as his criticisms of Russia, which is often accused of having precisely the same macho, hardheaded approach to diplomacy. If we have learned anything over the past eight years, however, it is that being the toughest kid on the block does not make you correct, and it certainly doesn’t mean you’ll succeed.

Yet, even Ambassador Khalilzad recognized the importance of collective action. "It's better if you can do ... collective responses," he said. "It's cheaper if you can do it, and I think there's many challenges you cannot succeed unless you do that." And as the world bids farewell to eight years of George W. Bush, we should be encouraged by how willing the world will likely to be for all the damage America has done over the past eight years. Reflecting on his own arrival in Turtle Bay, Khalilzad mused, "the impression I had in preparation for coming here was that the environment would be hostile toward the U.S.," he said. "I did not find that. ... I was very well received and I think people want to engage the U.S. and they want the U.S. attention."

This is our saving grace, and the source of great hope for both America and the United Nations.

It is worth remembering, today, that things weren’t always like this. In 1912, before even the League of Nations was conceived, Theodore Roosevelt’s Secretary of State, Elihu Root, received the Nobel Peace Prize for his work in bringing nations together to settle their disputes through arbitration, rather than war. In his acceptance speech, Root reflected on the massive challenges of crafting even the beginnings of international law.

“True,” he said, “we are but at the beginning, but it is the beginning of a great new era….

Each separate act will seem of no effect, but all together they will establish and maintain a tendency towards the goal of international knowledge and broad human sympathy....

...by the accumulated effects of a multitude of efforts, each insignificant in itself but steadily and persistently continued, we must win our way along the road to better knowledge and kindliness among the peoples of the earth which the will of Alfred Nobel describes as "the fraternity of nations."

In October of 1956, it was a US President who championed the primacy of international law and secured the withdrawal of Israeli troops from the Gaza Strip. On October 29, with barely a week until the American election, President Eisenhower went, not to back room deals and delay tactics, but to the United Nations, where America supported a resolution calling for Israel’s withdrawal. The day after his reelection, Eisenhower used America’s influence, not to cut a special, on-the-side deal, but to compel Prime Minister Ben Gurion to comply with the terms of the UN resolution. It may seem unthinkable today that an American president would put the principles of international law before domestic politics. But if it happened once, it can happen again.

Speaking in his second inaugural address a few months later, President Eisenhower declared:

“We recognize and accept our own deep involvement in the destiny of men everywhere. We are accordingly pledged to honor, and to strive to fortify, the authority of the United Nations. For in that body rests the best hope of our age for the assertion of that law by which all nations may live in dignity.

And, beyond this general resolve, we are called to act a responsible role in the world's great concerns or conflicts—whether they touch upon the affairs of a vast region, the fate of an island in the Pacific, or the use of a canal in the Middle East. Only in respecting the hopes and cultures of others will we practice the equality of all nations. Only as we show willingness and wisdom in giving counsel—in receiving counsel—and in sharing burdens, will we wisely perform the work of peace.

For one truth must rule all we think and all we do. No people can live to itself alone. The unity of all who dwell in freedom is their only sure defense. The economic need of all nations—in mutual dependence—makes isolation an impossibility; not even America's prosperity could long survive if other nations did not also prosper. No nation can longer be a fortress, lone and strong and safe. And any people, seeking such shelter for themselves, can now build only their own prison.

Our pledge to these principles is constant, because we believe in their rightness.”

John F. Kennedy’s inaugural address, so familiar to us all, has been subjected to such “ask not” sound byte editing that many forget that the speech was not the hymn to American exceptionalism to which it has been reduced in the popular memory. Rather, it was an affirmation of common cause and a call for international unity and dialogue. Kennedy addressed his words, not only to the American people, but:

“To that world assembly of sovereign states, the United Nations, our last best hope in an age where the instruments of war have far outpaced the instruments of peace, we renew our pledge of support—to prevent it from becoming merely a forum for invective—to strengthen its shield of the new and the weak—and to enlarge the area in which its writ may run….
So let us begin anew—remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear to negotiate….”

All three of these speeches were recommended to me by Hans Corell, a champion of international law and one of the most inspirational men I have ever met. And so tonight, as I read these words, and remember the other side of the American legacy, I am hopeful. I never thought my country could fall this far in my lifetime, but I have never been more ready to help it get back up again.

Securing US Abstention

2009-01-15T08:46:00.000-05:00

Today, more UN buildings have been hit in Gaza, and with no hope of a ceasefire in sight.

It turns out that the political maneuvering behind the UN's role in attempting to end the violence is apparently even more overt than I had speculated.

The New York Times reported on Monday that:

"In an unusually public rebuke, Prime Minister Ehud Olmert of Israel said Monday that Secretary of State Condoleezza Rice had been forced to abstain from a United Nations resolution on Gaza that she helped draft, after Mr. Olmert placed a phone call to President Bush."

The rest of the article can be found here.

Dangers of the Human Rights Council Resolution

2009-01-13T18:51:00.000-05:00

Yesterday’s developments in the ongoing tragedy in Gaza introduced yet another organ of the United Nations into the mix: the UN Human Rights Council. The Council, composed of forty-seven members that roughly reflect the population balance in the UN’s seven regions, exists solely to make recommendations to the General Assembly about violations of human rights throughout the world. In a Resolution against which Canada was the only dissenting vote, the Council harshly condemned “the ongoing Israeli military occupation carried out in the Occupied Palestinian Territory.” (Canada, mysteriously, now finds its own labor practices suddenly under the Council's microscope, less than twenty-four hours later).

The Council is the successor body to the UN Commission on Human Rights, which came to be known in many circles as the discredited Human Rights Commission, for the inclusion among its ranks of many nations with extensive records of human rights abuses. This came to a head in 2004, when Sudan was elected unanimously to the Commission (which would, in effect, give it a pulpit from which to lecture other nations about human rights) even in the midst of ethnic cleansing in Darfur. This prompted the US representative to walk out of the Commission, calling it an “absurdity,” and ultimately led to the dissolution of the Commission altogether.

In March of 2006, the Commission was officially replaced with the Human Rights Council (HRC). It gained slightly more power, and was connected directly to the General Assembly, as opposed to the Commission’s much more attenuated and overly-complicated position as a Treaty Body. Of the 192 member states in the General Assembly, only four voted against the creation of the Council.

The most prominent of these were the United States and Israel. The other two votes in opposition were Palau and the Marshall Islands, both two relatively new and small countries in the South Pacific. Palau only became a nation fifteen years ago. Before that, it was under UN trusteeship administered by the United States until 1994. The Marshall Islands, as many people know, were captured by the United States in 1944, during World War II. Following the War, America used the Marshall Islands to test its nuclear weapons, detonating 66 nuclear devices on the island between 1946 and 1958.

Beginning in 1986, both these tiny island nations signed the Compact of Free Association (COFA). Under COFA, the US provides some $30 million in defense aid to each of these nations annually, in exchange for the right to use Kwajalein Atoll, part of the Marshall Islands, to conduct missile tests. It does not take great cynicism to wonder whether the opposition of these two tiny islands to the establishment of an international body charged with ensuring human rights was entirely unrelated to any of these historical facts.

Yesterday’s Resolution, titled “The Grave Violations of Human Rights in the Occupied Palestinian Territory particularly due to the recent Israeli military attack(s) against the occupied Gaza Strip,” does not appear to be incorrect in any substantive way. It accurately recounts the horrific casualty figures that have been mounting ever since Israel began its operations more than two weeks ago. But it is incomplete, which greatly damages the already shaky credibility of the Council. Worse, it may also jeopardize UN peace-making efforts in the region by creating the impression that the United Nations is, in effect, speaking out of both sides of its mouth.

The official .pdf version from the Council’s website indicates the haste with which the Resolution was rushed out. Handwritten corrections to some of the language can be seen on the document itself – apparently there was no time to correct it in the word processor. The word “about” on page 2 has been crossed out and replaced with “more than,” to create a sentence that condemns “the killing of more than 900 and the injury to more than 4,000 Palestinians.” The effect is poignant, and conjures images of a situation that keeps worsening before the ink condemning the previous incarnation has even had a chance to dry.

In four pages, the Resolution makes but a single reference to the Israeli perspective – in a dependent clause following a recitation of the staggering Palestinian casualties, the Council also calls for an end to “the launching of the crude rockets against Israeli civilians that resulted in the loss of 4 civilian lives and some injuries.” The Council has also dispatched an “urgent fact-finding mission” to the area, to investigate all human rights violations committed “by the occupying power, Israel, against the Palestinian people.” No investigation of any human rights violations against Israelis is called for.

The Resolution goes on, not only to call for an end to the fighting and for the respect of human rights, but to take sides in the decades-old quagmire of peace negotiations, including a call for Israel to “respect its commitment to the establishment of the independent sovereign Palestinian state with east Jerusalem as its capital.”

What exactly the Council thinks this will accomplish, and indeed, where it claims to get its authority to even make this last statement, is a mystery.

In establishing the Council, the General Assembly stated that it:

shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development;

Thus, in order to fulfill its mandate, let alone to be perceived as legitimate, the Council must make its reports objectively, impartially, non-selectively, (diplomats love to use three words wherever one will suffice) and with the goal of promoting and protecting human rights.

Only three years after its predecessor had to be scrapped entirely, the Council is now perceived, at least by some, as a body entirely focused, not only on the Israeli-Palestinian issue, but on the transgressions only of one party to that conflict. This Resolution will only serve to deepen distrust of the UN. More importantly, however, it may also further erode the chances for International Human Rights Law taking hold as a legitimate, recognized, and enforceable body of law.

In the first two years of its existence, from March 2005 to April 2007, the Council passed nine separate resolutions “condemning” Israel, making it the only nation in the world singled out for such treatment. By way of contrast, the Council’s statements about the genocide in Sudan expressed “deep concern.”

Here’s what the supporters of IHRL (and I count myself among them) seem not to get – this whole movement, this whole body of law, is an experiment. And experiments can fail, if one is not careful with them.

International Human Rights Law was only born after World War II, in the drawing room of Eleanor Roosevelt’s apartment in New York City. It aspires to embody the basic norms and values of all humanity, regardless of race, gender, or political reality, but many, many nations and individuals remain deeply skeptical of its chances for success.

Even if the principles of IHRL were somehow mystically plucked from the ether, even if those who proclaim these principles and condemn those who violate them are 100% correct in their beliefs and criticisms, it doesn’t do a damn bit of good unless people are willing to listen to you. Human rights law, like religion, was created by human beings – it is aspirational, it is well-intentioned, it provides a code by which all people should strive to live. But it’s useless unless people believe in it.

Right now, the Human Rights Council is the international equivalent of a cop with no gun that only pulls over teenagers driving nice cars. When they do it without pulling anyone else over (especially, for example, folks who are actually speeding), the entire community begins to question whether the police have any legitimacy. They know the tickets aren’t given out based on anything resembling justice, and that the cop, having no gun, can’t really enforce them even if they were. Worst of all, it means that when the teenager in the nice car IS speeding, he can plausibly say that he wasn’t pulled over for what he was doing, but for who he is.

The only way to make people believe is to show that these laws apply to everyone, equally, without regard to political considerations, because we are all humans. This is particularly important for the Human Rights Council, which has absolutely no authority whatsoever. I regret the need to belabor this point, but think of the UN bodies discussed so far this way:

1. Security Council – top of the pyramid, with the power to tell other nations to stop doing things, and in rare circumstances, to gather military support to make them stop doing things. Thus, the SC is subject to the most political pressure, as well, given the vetoes of the 5 permanent members.

2. General Assembly – the base of the pyramid, with representatives from all 192 member states. Has the power to ask the SC to please tell other nations to stop doing things. This only applies when the SC tells the GA that has permission to ask the SC to do so.

3. The Human Rights Council – outside the pyramid, but connected to the base via phone lines ands internet. This is made even clearer by the fact that the center of “power” at the UN is in New York, while the HRC operates in Geneva. It has the power to suggest that the GA think about asking the SC to maybe tell other nations to stop doing things.

The chances that someone along this chain is going to simply ignore what the Human Rights Council says are pretty high. Thus, the only leverage that the HRC has, since it can’t make anyone do anything, is to lead by example. And a crucial part of that example is upholding the basic idea that the law applies equally to everyone. This Resolution, and much of the work of the Council and the Commission before it have failed abysmally in that regard. The failure to discharge its mandate with impartiality just gives ammunition to cynics who say that Human Rights Law (such as the human right to food, water, education, etc.) will never become enforceable.

But this is about more than the philosophical battles about Human Rights Law. It is, and always has been, about stopping two groups of people from killing each other when neither group seems to be so disposed.

On the same day that the Resolution was passed in Geneva, the UN Secretary General, Ban-Ki Moon, left New York to travel to the area in the hopes that his personal presence might have more effect than the ceasefire resolution, which has been thoroughly ignored by both sides. As discussed at length, simply securing passage of this Resolution was quite a feat of diplomatic gamesmanship. It took the threat of a Special Session of the General Assembly, and thus potentially the condemnation of 190 member states (not including the US and Israel) to prevent a US veto of the measure. No one expected that this would result in the Israelis or the Palestinians immediately laying down their arms, but it gave the Secretary General at least some leverage in trying to bring about an actual ceasefire.

Now, whatever leverage he and the UN had may well be damaged, if not lost, by the one-sided condemnation of this report. Why should Israel agree to a UN-backed ceasefire when it believes that the UN is hopelessly biased against it? This has certainly been Israel’s position (and America’s) for decades. In the eyes of Israel, rightly or wrongly, the battle in Gaza is a fight for their own survival. Israelis will look at the HRC resolution and see an international community that turns a blind eye to attacks against their country, and then condemns them for defending themselves in tones not even used against those who commit deliberate acts of genocide, as in Darfur. The UN will have wasted an opportunity to be influential, and the killing will likely continue.

Events in Gaza over the past two weeks have been an outrage. In that regard, the contents of the Resolution are entirely accurate. The suffering inflicted on the Palestinian people has been entirely out of proportion to the provocation of Hamas rockets, but the imbalance of the HRC Resolution will not help a single Palestinian, and may perversely delay efforts to stop the fighting.

If the International Community approaches ceasefire negotiations with an unwavering message about ending the violence, about preserving the lives of civilians, and about human rights, the efforts at securing a peace may have a chance. But if it comes with a message that is entirely about Israel, it will be ignored, and left with no way to make anyone listen.

Time to Close the Khmer Rouge Tribunal

2009-01-10T15:39:00.000-05:00

I have long wanted to believe in the work that is being done at the Extraordinary Chambers in the Courts of Cambodia (ECCC). As an American, I have always felt a sense of responsibility for Richard Nixon’s role in helping bring the Khmer Rouge to power. I wanted to help atone for the national shame of America continuing to recognize the Khmer Rouge as Cambodia’s legal representative at the UN until 1992 – fourteen years after Cambodia was liberated by the Vietnamese army.

During the Winter of 2007-2008, I worked as an intern in the Victims Unit at the ECCC. I had the privilege of being there just as the Unit first went into operation, and of seeing the first victims in the history of international criminal law who were allowed to participate as partie civille – to appear before the Court to tell their stories and demand justice for themselves and the nearly two million people slaughtered by the Khmer Rouge. I have written an article arguing that the ECCC’s approach to victims offers a model for a more meaningful form of international criminal tribunal. For the curious, the article also offers the non-web-based citations for the arguments I lay out below. My time working with victims at the ECCC, hearing their stories and watching the hope with which they looked to the Tribunal’s work was one of the most formative experience of my life. It reaffirmed all that international justice could do for a country, even decades later, to promote healing, and end impunity for some of the worst killers of our time.

But today, I have finally reached a conclusion.

For the sake of the Cambodian people, who deserve more than a billion-dollar show trial, and for the United Nations, which cannot afford to continue lending its approval to illegitimate, ineffectual cosmetic efforts, the ECCC should be closed. Any verdict this Court enters will only provide fodder for those who claim that International Justice does not and cannot work.

Last week, the Cambodian co-prosecutor (a peculiar, parallel innovation of the ECCC), Chea Leang, tried to block the UN side of the Court from investigating more than the five suspects currently in custody. The decision smacked of political motivation and seemed designed to prevent investigation of high-ranking members of Cambodia’s modern-day government who were, themselves, Khmer Rouge leaders. Worse, the Co-Prosecutor did not even attempt to justify her opposition based upon principles of international law. Rather, she argued that:

“investigations should not proceed on account of (1) Cambodia's past instability and the continued need for national reconciliation, (2) the spirit of the agreement between the United Nations and the Government of Cambodia ("Agreement") and the spirit of the law that established this court ("ECCC Law"), and (3) the limited duration and budget of this court."

An actual legal argument would run directly counter to her assertions. The law establishing the ECCC cites as its purpose

"...to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979."

This seems certainly to encompass the idea that, if further suspects who were “most responsible,” remain at large, then it is the Court’s job to bring them to justice.

Therefore, the “spirit” of the law to which the Cambodian Co-Prosecutor has referred is more likely the spirit that has informed the Court’s work since the early stages of negotiation – to allow the Cambodian government to conduct a show trial, for its own political benefit, and with the support, approval, and funding of the United Nations.

Not even a single suspect has yet been brought to trial at the ECCC. More money is now being spent appealing this fight between the UN and Cambodian prosecutors to the Court’s judges, who themselves are besieged by accusations of corruption and political motivation.

The Court has been crippled from the beginning by an ill-advised “hybrid” agreement that gives the Cambodian government unprecedented powers to interfere with and act as the puppet master behind the Tribunal’s actions. The structure of the Court seems designed to prevent the Tribunal from bringing anything but selective retribution to a few hand-picked suspects that the Prime Minister, Hun Sen, has decided should shoulder the blame for the Khmer Rouge. This leaves the Prime Minister, himself a former member of the Khmer Rouge, free to claim that the book has been closed on the past and to consolidate his own power, without having ever been called to the bar for his own crimes or those of his advisors.

The first efforts to try the Khmer Rouge at the international level began on April 11, 1994, with the adoption of resolution 1997/49 by the UN Human Rights Commission. The resolution requested that the Secretary General “examine any request for assistance in responding to past serious violations of Cambodian and international law as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability.”

The initial proposal was to create a Truth and Reconciliation Commission similar to those used in South Africa, since most Cambodians had expressed, not a desire for retribution, but rather for answers. This was unacceptable to Hun Sen, who feared that too much “truth” could threaten his own power. And so, Cambodia refused to accept the UN recommendation.

This was the point at which the United Nations should have seen the writing on the wall.

Instead, likely driven by a sense of guilt for having sat idly by during the Khmer Rouge era, negotiations between the UN and Cambodia continued, now based on the assumption of creating a more traditional, retributive model of justice.

In the second attempt at a solution, the UN assembled a group of experts in July of 1998 to assess the feasibility of a more traditional court. The group published its recommendations on February 18, 1999, calling for the creation of an ad hoc international war crimes tribunal modeled on the International Criminal Tribunal for the former Yugoslavia. This system, which was based on the World War II trials of the Nazis at Nuremburg, would have created a separate court in Cambodia – one that applied established standards of international law, administered by impartial international judges.

The Cambodian Government rejected this proposal, as well. It insisted on a court based on Cambodian law, with a large role for Cambodian nationals, especially as judges and co-prosecutors.

Truth and reconciliation? No. Too risky.

International standards and impartiality? Nope. Still too risky.

And so, four years of protracted negotiations between the UN and the Cambodian Royal Government resulted in a “hybrid” court based, not on true international law, but on Cambodian domestic law, with international standards being applied only to fill in the gaps. Worst, the UN capitulated to a government demand that each level of the Court (pre-trial through the Supreme Court) would contain more Cambodian judges than international judges.

Not surprisingly, accusations of corruption at the Tribunal have existed from its inception.

Yesterday, more allegations emerged – this time that the Cambodian judges themselves paid kickbacks to the government to secure their positions on the bench. The defense lawyers for Nuon Chea, the Khmer Rouge’s “Brother Number Two,” further allege that these judges continue to pay a portion of their monthly salaries to the Cambodian government officials who awarded them their jobs.

This would be bad enough, and would lead most observers to conclude that enough is enough. But even more disturbing is the reaction of the judges, who have not only denied the allegations, but have threatened to take legal action against the defense attorneys who brought these allegations to light. In a statement, the judges said that:

"We would like to state that if the above accusation stems from bad faith in putting the
blame on the judges, we reserve the right to legal recourse against any individuals who have provoked such a problem."

So now we have allegedly corrupt judges in a structurally flawed system threatening to sue the defense attorneys. One would think that the United Nations, in negotiating the formation of this Court, would have put in a provision that said, for example, that judges cannot sue defense lawyers, perhaps because this would undermine the Court’s credibility.

Well, it turns out that they did. Article 21 of the Agreement Between the United Nations and the Royal Government of Cambodia lays this out in no uncertain terms. The article provides that:

"The counsel of a suspect or an accused… shall be accorded… immunity from criminal or civil jurisdiction in respect of words spoken or written and acts performed by them in their official capacity as counsel. Such immunity shall continue to be accorded to them after termination of their functions as a counsel of a suspect or accused."

The only possible caveat is the last sentence of that Article, which states that all counsel must “act in accordance with the present Agreement, the Cambodian Law on the Statutes of the Bar and recognized standards and ethics of the legal profession.”

There are only three possible explanations for the Judges’ actions. The first is that the Judges simply did not read or do not understand the basic structure of the Court and therefore cannot understand that immunity for defense counsel is central to a fair trial. I wish that I could dismiss this first option out of hand as being ridiculous, but my own experiences and the actions and written opinions of the court (which are often based on very shaky legal reasoning) make that impossible.

The second option is that they have read it, understood it, and simply do not care. This implies that the Cambodian judges feel free to violate a basic cornerstone of their agreement with the UN and expect the UN will be too timid to challenge them on it. Unfortunately, all actions up until the point indicate that they are probably correct.

The third, and most charitable option, is that the judges truly believe they can make a case that, by bringing accusations of judicial corruption to light, defense counsel have acted in “bad faith” and violated “recognized standards and ethics of the legal profession.” Under the circumstances, given the continuing allegations of corruption, it seems impossible that this argument would fly in any court BUT the ECCC.

The UN seems to believe, essentially, that it needs to finish what it started with the ECCC. One reason is for the sake of the victims. But wasting millions of dollars running a corrupt court in a poor country only adds insult to the injury the Cambodian people have already suffered. More likely, its persistence in not pulling the plug on the Court comes from a desire to save face. But this week, as its long-awaited ceasefire resolution was promptly ignored by Israel and Hamas, the UN cannot make a straight-faced argument that continuing to lend its name to an ineffectual, corrupt institution can do anything but further damage its reputation.

I want to be clear – the international staff with whom I worked at the ECCC were some of the most intelligent, dedicated people I have ever known. They want to do the right thing. But it is impossible to play an honest hand in a crooked card game, and the structure of this Court has given the Cambodian government unprecedented ability to manipulate both the judicial process and the United Nations as a whole.

It would be better to stop pouring money into a judicial farce and invest it in improving the lives of the victims of the Khmer Rouge. If the UN continues to lend its name to this poor excuse for a justice system, it could do incalculable damage, not only to the Cambodian people, but to future, legitimate efforts in international criminal law.

Abstention

2009-01-08T22:08:00.000-05:00

Perhaps it was the sharp escalation in events over the last twenty-four hours, including the suspension of UN food aid to Gaza. Perhaps it was the weight of the international community and public opinion bearing down upon America. Or perhaps it was simply the desire to avoid a much more widespread condemnation of the violence in Gaza by the General Assembly. But the United States has officially backed down.

The UN Security Council this evening adopted a resolution calling for an immediate ceasefire in Gaza that would address both an end to smuggling of arms and the opening of border crossings. The resolution gathered fourteen votes out of the fifteen nations on the Council. The United States abstained – unable to support it, but unwilling to veto it. The shift in US position has been rapid and remarkable, at least by the glacial standards of international bodies.

Less than a week ago, the United States felt fully justified in blocking the proposal of a non-binding statement that would have called for a ceasefire but have had no legal effect.

Three days ago, it saw the issue raised again by a coalition of tiny countries, many of them poor, and few of which would dare challenge the US under other circumstances.

Today, it faced the prospect that the entire General Assembly, called into Special Session to deal with this crisis, would publicly repudiate US efforts to block a ceasefire resolution. And this evening, the United States sat back and bit its tongue as the Security Council passed, not a statement, not a presidential statement, an interim measure that was briefly proposed, but a full-blown Security Council Resolution.

It is hard to call this a victory for the people of Israel or the people of Palestine. Neither will receive respite from attacks tonight as a result of this resolution. But it is a victory, of sorts, for the United Nations, and particularly for those countries without a seat on the Security Council.

As noted yesterday, the Security Council meeting was arranged hurriedly upon word that Malaysia had managed to rally sufficient numbers to call a special session of the General Assembly. Following America’s veto on Sunday, the Security Council could not have made a claim, under Article 12 of the Charter, to be dealing with the situation unless they met before the world’s representatives came together tonight at 5:30, as had been scheduled. Accordingly, they met this afternoon.

Hours before the General Assembly was scheduled to meet, the Israeli Ambassador Gabriela Shalev, apparently delivered a letter to GA President Miguel d'Escoto Brockmann, stating that:

"The invitation to convene the Emergency Special Session takes place as the Security Council is actively seized upon the current situation in southern Israel and the Gaza Strip. In fact, a draft resolution is currently being considered by the Security Council. I am confident that you are well aware that according to UN General Assembly resolution 377, emergency special sessions of the General Assembly are designed to act only when the Security Council “fails to exercise its primary responsibility for the maintenance of international peace and security.” Given that the Security Council remains engaged on this matter, it is beyond the mandate of the president of the General Assembly to resume the convene such a meeting (sic)."

At 5:41 PM, the Special Session was apparently canceled:

"Subj: URGENT MEDIA: PGA Special Session 5.30 POSTPONED
From: [PGA spokesman at] un.org
Sent: 1/8/2009 5:41:36 P.M. Eastern Standard Time

Note to Journalists -- The President of the General Assembly, at the request of Member States, has decided to defer the planned 5:30 PM meeting of the 10th Emergency Special Session, in light of the imminent decision of the Security Council on a resolution on the Gaza crisis.

"We will closely analyze the resolution and determine whether it is serious, and contemplates the pertinent measures – both to ensure the immediate ceasefire and the unimpeded access to the humanitarian needs of the Palestinian people," said President Miguel d'Escoto this afternoon."

If these sources are accurate, this is truly remarkable. Even without them, the inferences are strong.

Rather than allowing a ceasefire vote in the General Assembly, which would have had absolutely no force of law, the US conceded to a Security Council Resolution, the strongest statement that the United Nations can make.

This resolution, of course, cannot be enforced. There will be no blue-helmeted UN troops on the ground in Gaza holding the two sides apart. As such, some might see this all as futile. But the real power of tonight’s resolution comes as much from what was not said as from the words of the text itself.

The mere prospect of the Earth’s 192 nations coming together to speak with one voice, despite the fact that all they HAD was a voice, was enough to force the most powerful country in history to back down. It was enough to spur or shame or surprise the Security Council into action. And with any luck, it may turn out to have been enough to stop the bloodshed.

All without saying a word.

Dueling Ceasefire Sessions

2009-01-08T00:48:00.000-05:00

Against the odds, Malaysia seems to have been successful. The General Assembly will meet in a special session Thursday evening to take up the issue of calling for a ceasefire in Gaza. As discussed earlier, passing a resolution in the GA would require 128 votes, as opposed to the 97 needed to simply convene the special session, so it is by no means certain that a ceasefire resolution would be adopted.

Interestingly, the Security Council will also be meeting that day. While the General Assembly is slated to convene in the evening, the Security Council will meet in the afternoon. This raises the possibility that the General Assembly may have nothing to discuss by the time the special session opens. Under Article 12, if the 15 nations of the Security Council claim to be dealing with the crisis "in any respect," they can prevent the remaining 177 member states from speaking on the issue at all.

It seems that Malaysia, and the world, may have called America's bluff.

If the United States does not veto a resolution tomorrow afternoon, it seems inevitable that the Security Council will call for a ceasefire. This would carry much greater weight than a General Assembly Resolution, but would, in effect, limit the statement to fifteen countries (fourteen in America abstains), rather than the full 192 members of the General Assembly.

If it does choose to veto, then Security Council cannot claim to be dealing with the matter, and would have no basis to strip the matter from the General Assembly, where it could well pass with less weight, but with far more voices. The choice, at this point, remains entirely that of the US. America may yet try for some middle ground, such as pressuring the Security Council to take the matter under advisement, silencing both bodies for a few more days.

Even now, with the news only an hour old, all reports are emphasizing that a General Assembly resolution would not be binding. Yet the timing of the two sessions reveals just how important the non-binding words of the world are considered to be -- so much so that the Security Council wants to give itself one more chance to prevent them from being spoken.

The representatives of the world will all show up on Thursday. Whether they will be allowed to say anything still remains to be seen.

Malaysia

2009-01-06T23:07:00.000-05:00

While the fighting continues today in the Gaza Strip, so, too, do efforts to allow the 191 non-American member states of the United Nations to call for a ceasefire.

As noted, the United States vetoed an unenforceable UN Security Council statement on Sunday evening that called for a cease-fire in the conflict between Israel and Hamas. True to our insistence that a proposal can only come on terms dictated by the US, rather than from the international community, Condeleeza Rice headed to New York this afternoon for meetings with Arab and European diplomats, hoping to persuade Middle Eastern Countries to support America’s own version of a ceasefire.

And in the midst of this chaos, an unlikely champion of international law has emerged: Malaysia.

Malaysia has no veto on the Security Council. Nor does it have the political or military clout to pressure other nations into supporting its positions. Rather, the Malaysian government is hoping to best the United States by playing by the rules and trying to unite the rest of the world in speaking out against the violence.

On Monday, Malaysia called for a Special Session of the UN General Assembly. Unlike the Security Council, which has the rarely-used power to “take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security,” the General Assembly is largely a debating society. Its primary functions under Article 10 are to “discuss” issues and “make recommendations” to other UN organs, including the Security Council itself, which is under absolutely no obligation to actually listen to those recommendations.

Nonetheless, discussion and recommendations matter.

A Special Session can only be called at the request of the Security Council or of a majority of the Member States. After America’s actions on Sunday night, there remain no illusions that such a request will be forthcoming from the Security Council. And so Malaysia is doing things the hard way – one country at a time. It has entered into talks with the countries of the Non-Aligned Movement and the Organization of the Islamic Conference in the hopes of reaching the magic number of 97 nations necessary to convene a special session.

Once and if it is convened, the actual power of the General Assembly to change the situation in Gaza would be absolutely zero. The General Assembly, under Article 14, “may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations.” Even then, it requires two-thirds of the member states to adopt a resolution under Article 18, a challenging coalition to assemble even on non-controversial issues.

Furthermore, these types of situations can only be taken up by the General Assembly if the Security Council is not taking any action on them. In fact, Article 12 provides that, when the Security Council is actually doing its job in addressing threats to the peace, the General Assembly is forbidden from even making recommendations unless the Security Council so requests. In essence, as long as the major industrial powers can claim to be dealing with the situation at all, the rest of the world, as represented by the General Assembly, is told to shut up, please, until we ask for your opinion.

So, in order to even pass a recommendation to which the Security Council almost certainly would pay no heed whatsoever, Malaysia will have to first convince 97 of the other member states to convene a Special Session, and then convince 128 of the 192 countries in the world to join them in calling for both sides in Gaza to lay down their weapons. Faced with such stark odds and a guarantee of failure even if it succeeds, one must wonder what it is that keeps Malaysia going.

Perhaps, as some cynics will no doubt suggest, it is political or religious ideology. But if Malaysia somehow succeeds, it hardly seems conceivable that the same cynical motivations could be shared by two thirds of the world necessary to pass a resolution.

More likely, it is the fact that, when one is a small nation, without political influence or military might, one learns to turn to others for support – to rally otherwise disparate interest groups around the core values that inspired the entire project of international law. More likely, it stems from a belief that discussions and recommendations can matter, and a hope that, if most of the world stands up and says stop, that the two sides busy blowing the hell out of one another in Gaza might actually listen.

It is unlikely. More likely, in fact, would be to see the US exert a good deal of backroom influence over the next few days to prevent enough countries from supporting Malaysia’s call for a Special Session in the first place, so that the General Assembly can never discuss the issue. By doing so, America only stands to further alienate Muslim nations, extending itself beyond the current staus quo of having, for the most part, only alienated Middle Eastern Muslim nations. If this happens, few will be surprised, though many will be disappointed.

But Malaysia’s example will remain a powerful one, regardless. For in the face of atrocities like those unfolding in Gaza, the world cannot, in good conscience remain silent. When the only tool at our collective disposal is to suggest that someone else please, maybe think about asking nicely if they might think about stopping, when all the world can do is “recommend measures for the peaceful adjustment of a situation,” then that is what we must do. And those of us in one of the largest countries in the world should be grateful that Malaysia, a very small country, is there to remind us of that.

Vetoing a Ceasefire

2009-01-04T12:42:00.000-05:00

Last night, as the world knows, Israel invaded the Gaza Strip, in the hope of ending Hamas rocket attacks into their territory. The New York Times notes that the real target of this operation is likely not the ending of rocket attacks, but the destabilization, if not the complete removal of Hamas from power in Gaza. The Associated Press reports that “more than 480 Palestinians have been killed and nearly 3,000 injured in Gaza, and four people have been killed in Israel.”

That same evening, a statement was introduced in the United Nations Security Council calling for a ceasefire in the region. It did not seek to condemn one side or the other in this far-too-complicated, far-too-rehashed conflict, it simply put forward the modest proposal that perhaps escalating the situation into an all out war was not in the best interest of international peace and security.

It is significant that this was not a resolution, which, as previously noted, has essentially no effect in the real world. It was a statement, which has even less effect.

A resolution is a parent saying “stop doing that or else,” when the child knows that the parent is actually quite unlikely to provide any consequences. There is a bit of finger-waving involved, but that’s about it. A statement, in contrast, is the parent looking up distractedly from the newspaper and saying, “knock it off,” and then returning to reading. If the child continues to misbehave, there is a chance that the parent will escalate to finger-waving, but that is by no means guaranteed. Still, even this serves its purpose. It lets the child know that someone is paying some bare minimum of attention, and serves as a warning that further consequences might conceivably lie further down the road if the behavior does not cease.

This approach, like many other radical, starry-eyed UN actions, proved too much for the United States to stomach. And thus, America blocked the statement. Speaking through spokesperson Sean McCormack, the US State Department justified Deputy Ambassador Alejandro Wolff's actions, saying that “it is important that we not return to the status quo ante, simply by freezing the situation,” because there was “no guarantee” that Hamas would stop its own attacks. McCormack also emphasized that America supports a ceasefire “as soon as possible.” This misses the mark in two respects.

First, there is never any guarantee that either party to a ceasefire will abide by its terms. Ceasefires are, by their nature, tenuous things, designed to give the parties breathing room to resolve a dispute. To say that, simply because a cease fire might be violated, one should not even call for it, only reveals the cynicism of the Bush Administration’s discredited view of foreign policy: because the “bad guys” might not play by the rules, the “good guys” should not be expected to stop doing bad things for a good reason.

Secondly, the statement did not call unilaterally for Israel to stop its attacks (though, given the striking disparity in casualty figures, this was undoubtedly a motivating factor for some members of the Security Council). Rather, it called for both sides to lay down their weapons. This is the job for which the Security Council was created sixty-three and a half years ago. Issuing a statement is but the first step in a long journey towards attempting to resolve conflicts at the international level. By blocking the issuance of the statement, Wolff and the Bush Administration said essentially that, because they journey may not end in success, that first step should not be taken at all.

The Security Council, under the United Nations Charter, is given primarily a watchdog function. Article 39 of the Charter provides that the Council “ shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.” Notice the word "shall." This is not optional language – determining the existence of such threats is the reason for the Security Council’s existence. Under any rubric, putting aside one’s politics, and without trying to affix blame, it hardly seems a stretch to suggest that open warfare in the Gaza strip constitutes a “threat to the peace,” triggering the Security Council’s responsibilities.

Article 40 provides that, before any military action is threatened, before any sanctions are imposed, indeed, before anything with even the weak UN version of “teeth” is ever suggested, the Security Council, “in order to prevent an aggravation of the situation... may... call upon the parties concerned to comply with such provisional measures as it deems necessary and desirable.” It does not require an advanced degree in political science or a long career in the diplomatic corps to determine that halting this before it goes any further is desirable.

The Charter further recognizes that conflicts between nations are inherently complicated, and that a just resolution of a conflict after a ceasefire is essential to preventing a return to hostilities further down the road. Article 40 thus provides that “such provisional measures shall be without prejudice to the rights, claims, or positions of the parties concerned.” In other words, the Council, in calling for a ceasefire, is not claiming to make any judgments about who is right, who is wrong, or who started it. It is not seeking to take sides, affix blame, or in any way limit the options of either party in seeking to resolve their dispute peacefully. It is merely saying that blowing one another to hell is not in the best interest of the parties or of the world, and that they should both stop it. Now.

Actually, by attempting to issue a statement, rather than a resolution, the Security Council is, in effect, saying that it would be a good idea if the parties maybe thought about stopping. But this was a bridge too far for the US to support.

The most galling part about America’s actions last night was the degree to which our nation yet again sought to talk out of both sides of its mouth on the international stage. The Bush Administration rejected the idea of the UN calling for a ceasefire, but stressed that the United States supports a ceasefire “as soon as possible,” provided that such a ceasefire include guarantees that Hamas end its rocket strikes. The circumstances of Israel’s latest incursion are eerily similar to the Bush Doctrine of regime change: “these are bad people, so we must be allowed to take them out, and after that, we’ll go back to abiding by international law.”

That is a view. It is one with which this author strongly disagrees, but it is a view. But a nation that subscribes to such a view does not deserve the great honor and power of a Security Council veto. We either believe in the project of international law, or we don’t. If we do, we must act as an honest broker at the institution we helped found at the end of World War II. If we don’t, we should leave the institution, rather than remaining there simply to muzzle the rest of the world. America should not be allowed to silence the collective voice of the Security Council when it seeks to condemn our friends but then provide that voice with a megaphone when it condemns our enemies for similar actions.

If international law and the United Nations are to ever develop into anything meaningful, they need the support and legitimate backing of the only remaining Superpower. The world deserves an American administration that actually believes in the rule of law, and this includes having the courage to acknowledge the simple fact that war is a threat to the peace – a threat from both sides, even when one side is our ally. The world will get that administration in a matter of weeks. The challenges will remain the same, the Israeli / Palestinian conflict will certainly continue. There will be no guarantees of success, but at least the United Nations will have a chance of playing a meaningful role in resolving that conflict. For now, in its last weeks, the Bush Administration has once again robbed the UN of even that chance. And the only guaranteed result is that more people will die.

The General Assembly and Homosexual Rights

2008-12-20T16:12:00.000-05:00

A resolution proclaiming that people should not be labeled as criminals because of whom they choose to love came to a vote this week in the United Nations General Assembly. In the words of the Argentinean representative, it urged member states to:

“take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention.”

This, it appears, is too much to ask for from the UN. Even more disappointing, it is too much to ask for from the United States of America.

Thursday, the General Assembly voted 66 to 60 against a resolution that called, not for equal rights for homosexuals, not for pro-active anti-discrimination measures to be imposed, not for marriage, not even for affirmative action, but simply for countries to no longer make it a crime for a person to be who she or he is.

The United States, hiding behind the vague principles of federalism, shamefully sided with such bodies as the Holy See and the Organization of the Islamic Conference in its inability to state that no person should face the possibility of execution solely on the basis of sexual orientation. The Bush administration, which launched two wars to ostensibly free other nations from the oppression of having religion imposed as law, could not muster the resolve to support a resolution that would have no practical legal impact, but which would have had immense symbolic value for the cause of human freedom and liberty. Demurring, Deputy US Ambassador to the UN, Alejandro Wolff stated that: “we are opposed to any discrimination, legally or politically, but the nature of our federal system prevents us from undertaking commitments and engagements where federal authorities don't have jurisdiction."

That is, to say the least, a disingenuous explanation, since the question of whether homosexuality could be criminalized in the US was already decided by Lawrence v. Texas, 539 US 558 (2003). Private sexual conduct between consenting adults is protected as a substantive due process right by the Fourteenth Amendment, and the case that held otherwise, Bowers v. Hardwick, 478 US 186 (1986), was explicitly and firmly overruled. The question of equal marriage rights remains a hotly contested issue at the state level, as evidenced by the furor over Proposition 8 in California and the choice of Rev. Rick Warren to give the invocation at Barack Obama’s inauguration. But it is no longer even debatable that a state cannot criminalize homosexuality itself, which is all that the UN resolution would have called for.

Where, then, does Alejandro Wolff get off claiming that for America to support this resolution would violate the principles of federalism? And more importantly, if the world’s most powerful country is going to duck one of the most fundamental moral issues of our day by hiding behind a misstatement of its own domestic law, then of what use is the United Nations?

It is well known that, in America, UN resolutions have all the force and effect of a child’s letter to Santa Claus. This was reaffirmed just last term by the Supreme Court in Medellin v. Texas, 128 S.Ct. 1346, U.S. Tex., 2008, which held that no UN treaty can be considered self-executing. This means that, unless the Congress specifically enacts the provisions of a UN resolution of its own accord, no one, not even the President of the United States, has the power to enforce even one comma of that resolution within the US.

So the effect of this resolution would have been twofold, and changed absolutely nothing within American law. First, it would have simply affirmed what is already US law under Lawrence. Second, any interpretations of the resolution that might be seen as going beyond would have been unenforceable under Medellin unless and until both the House and the Senate enacted similar legislation. With the reelection of Saxby Chambliss in Georgia, any such attempt would surely be filibustered, and thus would be a dead issue.

There are few moral absolutes in this world, and even fewer on which a body as diverse as the General Assembly can be expected to agree. But this is one of them. The ability to be oneself without being subject to criminal penalties strikes at the very heart of fundamental human rights. For a country that fought a revolution to secure individual liberties, and which helped spearhead the creation of the UN, this is but one more example of how far America has strayed from its core values, and how little credibility we have remaining after eight years of George Bush.

Compare Thursday’s vote with the example of Ukraine, a country usually considered to be far more chauvinistic and “traditional” than the United States. Ukraine decriminalized homosexuality in 1991, the year of its independence. After decades under a Soviet regime that brutally silenced dissent and non-conformity, Ukraine made decriminalization a cornerstone of its aspirations as a free country. This was more than a decade before America came to the same conclusion in Lawrence. The fact that love cannot be criminalized is not progressive, it is not subversive, it is bedrock.

As a practical matter, the UN is good for very little besides making symbolic gestures. But symbols are important. Symbols represent, if not who we are, then who we hope to become. And the General Assembly offers a forum for the great nations of the world to lead by example. As President-Elect Obama reminded us all on election night, “the true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals: democracy, liberty, opportunity and unyielding hope.”

Our ideals were nowhere to be seen on Thursday. Who knows how many other nations would have found the courage to support the Resolution if the United States had taken the lead and done so first? Only three other nations would have needed to change their vote in order to pass the Resolution. This was an embarrassment to the nation, and will now be cited as a source of legitimacy by intolerant, oppressive regimes around the world. We can only hope that the Resolution will be re-introduced shortly after Ambassador Susan Rice takes over at the UN so that we can begin the long, slow work of repairing both America’s image and the now-stalled cause of affirming basic human dignity.