[Athens]

Ok I thought I have seen it all but this is just

President George Bush Charged in Provincial Court
By charlie smith

Publish Date: 2-Dec-2004

A Vancouver lawyer has filed torture-related criminal charges against U.S. President George W. Bush in Vancouver Provincial Court. Gail Davidson, cochair of an international legal group called Lawyers Against the War, told the Straight that she charged Bush on November 30 with seven counts of counselling, aiding, and abetting the commission of torture in connection with the actions of U.S. armed forces at the notorious Abu Ghraib prison in Iraq and at a U.S. naval base at Guant�namo Bay. If the case goes to trial and Bush is found guilty, he would be liable to imprisonment for up to 14 years.

"I went about it in a very organized and solemn way," Davidson said. "It wasn't every day that someone was going to walk in and try to lay a charge against a visiting president."

A justice of the peace accepted the charges, which means there will be a hearing to decide whether or not Bush will be required to appear. Davidson said that within eight days of her laying the charges, the Attorney General of Canada, Irwin Cotler, must give his consent for the case to continue.

Davidson said she worked closely with Osgoode Hall law professor Michael Mandel, cochair of LAW, in preparing the case against Bush. She added that after the news was reported in the U.S., she received some hostile e-mail, as well as "rude" treatment from some American media outlets.

The same day that Davidson's charges were approved, the New York Times reported that it had obtained a memo from the Geneva-based International Committee of the Red Cross accusing the U.S. military of using tactics "tantamount to torture" on prisoners at Guant�namo Bay. The next morning, mainstream Canadian newspapers such as the Globe and Mail, the National Post, and the two local CanWest-owned dailies did not report that the U.S. president had been charged in Vancouver.

December 2, 2004

Hearing December 6th in Canadian torture charges against US President Bush

Lawyers Against the War (LAW) will appear in a Vancouver Provincial Court on Monday December 6th 2004 to argue that torture charges against President George W. Bush should proceed with a full hearing.

The charges were laid against Bush by LAW, on November 30th 2004, during Bush's visit to Canada and concern the well known abuses of prisoners held by US Armed Forces in the Abu Ghraib prison in Iraq and the Guant�namo Bay prison in Cuba. The charges come under a section of the Canadian Criminal Code enacted to implement the U.N. Convention against Torture, ratified by Canada in 1987 and the United States in 1994.

Issues yet to be decided include the need for the Attorney General of Canada's consent for the prosecution of a non-citizen, and the question of Bush's immunity as a foreign Head of State.



December 6, 2004

Canada blocks torture charges against Bush

The Canadian government used a claim of diplomatic immunity Monday to block torture charges laid under the Canadian Criminal Code against President George W. Bush. The charges had been laid by Gail Davidson of LAW [Lawyers against the War] on the occasion of Bush�s visit to Canada on November 30. They concerned the well-known abuses at Abu Ghraib prison, photos of which shocked the world earlier this year, as well as similar abuses at Guant�namo Bay that have emerged more recently. On behalf of LAW, Davidson was seeking to fix a date for a hearing into the charges and came armed with evidence, but Judge William Kitchen acceded to the Attorney General�s objections and declared the charges �a nullity�.

�Of course, they�re not a nullity�, said Professor Michael Mandel, co-chair of LAW, who criticized the decision as �irregular in procedure and wrong in substance.� �These charges were properly laid and backed up by powerful evidence. The government didn�t deny that evidence because it couldn�t deny it. Diplomatic immunity is purely procedural. It doesn�t affect the validity of the charges, only whether they can be proceeded with, for the time being, in a foreign court, in this case a Canadian court. Even if Bush has immunity, it�s only temporary and it won�t shield him or anyone in his administration from Canadian law, or any other law, when they leave office. That the Canadian government would try to hush this up by hiding Bush behind diplomatic immunity was only to be expected. Paul Martin invited Bush here to ingratiate himself with the President, despite the President�s crimes against our laws and against international law, despite even his inadmissibility as a war criminal under Canada�s immigration laws � above all, despite the unending human disaster the President�s illegal �war of choice� has brought to the people of Iraq.�

Vancouver lawyer Gail Davidson, who laid the charges, said �We have a lot of objections to the way these charges were handled. We can�t see the legal basis for sealing the courtroom and excluding the press and the public. We think the claim of immunity was premature and exaggerated, and the quashing of the charges not authorized by the law. We are considering our options, including an appeal of the decision. One thing we will do for sure is to pursue similar charges in Germany as part of the prosecution launched there by the American Center for Constitutional Rights. There is good reason to believe that the German authorities will show more backbone than the government of Canada in the face of the Bush administration�s trashing of international human rights law.�

[jbartone]

The government or someone got it thrown out.

EDIT: Yeah, what the second half of your post says. Despite what the professor guy says, I doubt it'll ever happen. Stupid commies.

[Athens]

Originally posted by jbartone:
The government or someone got it thrown out.

EDIT: Yeah, what the second half of your post says. Despite what the professor guy says, I doubt it'll ever happen. Stupid commies.

What will be interesting to see is what happens when he is not in office. This group are out to get him.

[SimeyTheLimey]

Originally posted by jbartone:
The government or someone got it thrown out.

EDIT: Yeah, what the second half of your post says. Despite what the professor guy says, I doubt it'll ever happen. Stupid commies.

The law professor is also wrong. Bush isn't shielded by diplomatic immunity. He's shielded by head of state immunity. The latter is permanent for official acts conducted while in office.

[Athens]

Originally posted by SimeyTheLimey:
The law professor is also wrong. Bush isn't shielded by diplomatic immunity. He's shielded by head of state immunity. The latter is permanent for official acts conducted while in office.

Well then you mean the Canadian Government is wrong, they are the ones that said he is shielded by diplomatic immunity.

[Randman]

Publicity hounds. Gotta love 'em (not).

[James L]

As a Canadian, I think these charges, as I read the above articles, are a joke.

The US soldiers who commited the tortures in Abu Ghraib acted no better than the terrorists the US states they are fighting. Killing an armed combatant in battle is one thing, torturing those in captivity is another. The actions of this small group of loser American soldiers is well on par with the actions of their enemies. I hope these soldiers are punished to the full extent possible, as they reflect horribly on all the brave soldiers the world over who act honorably (spelled the American way on purpose for my neighbours to the south) in times of conflict.

Now, having said that, I see these charges being laid against Bush in a Canadian court a complete waste of time. While one could argue that Bush is indirectly responsible for the torture of the prisoners at Abu Ghraib as he ordered his troops into Iraq in the first place, to state that a leader of any country is constantly aware of the actions of a group of soldiers, out of hundreds of thousands of them, at all times, is a stetch...to say the least.

I am sure Bush heard about these tortures after they were commited. I have not followed the punishment of these soldiers (if you can call them that), but one would hope that justice will be severe. If it is not, if the US government attempts to cover up the issue, etc, then it seems to me that it would be up to the AMERICAN people to decide what punishment they see fit to bring against their military / government.

[SimeyTheLimey]

Originally posted by Athens:
Well then you mean the Canadian Government is wrong, they are the ones that said he is shielded by diplomatic immunity.

If so, then yes, they are wrong. The two immunities are different.

[SimeyTheLimey]

Originally posted by James L:
then it seems to me that it would be up to the AMERICAN people to decide what punishment they see fit to bring against their military / government.

There is an interesting article editorial in today's Wall Street Journal about exactly that point talking about the contrast between the indictment of Pinochet in Chile by Chileans and the intermeddling attempts of activists in Europe to try him. Link

They make a good point, and so do you.

[Abu Bakr]

Isn't this that famous hoax?

[Athens]

Originally posted by Abu Bakr:
Isn't this that famous hoax?

No its real.

[dcolton]

Is it really true? I can't find a 'reputable' source. Does anyone have a link to a mainstream news source?

[Abu Bakr]

Originally posted by SimeyTheLimey:
There is an interesting article editorial in today's Wall Street Journal about exactly that point talking about the contrast between the indictment of Pinochet in Chile by Chileans and the intermeddling attempts of activists in Europe to try him. Link

They make a good point, and so do you.

If you call refugees from Chile who had their family members tortured etc by Pinochet's gangs activist I'm not sure what to say.

It were Chilean refugees that filed the lawsuite IIRC, not some "activists".

[SimeyTheLimey]

Originally posted by Abu Bakr:
If you call refugees from Chile who had their family members tortured etc by Pinochet's gangs activist I'm not sure what to say.

It were Chilean refugees that filed the lawsuite IIRC, not some "activists".

Such test case suits are usually brought by activist lawyers who then hunt for a plaintiff (or class of plaintiffs) with potential standing and the right facts to advance the lawyer's legal agenda.

The issue here isn't the right of victims to file suit, it's where they file suit, and in whose courts they file suit. The proper place to hold former Chilean dictators to account is in Chile's courts. It's not in courts in, say, Spain.

The same would be the case if, say, a group of activists lawyers found some Cuban exiles in order to sue Castro for his regime's torture. That would be wrong too. Castro should be answerable to his own courts for his crimes committed as dictator of Cuba, not one in Miami.

[Tarambana]

Originally posted by SimeyTheLimey:

[snip]

The issue here isn't the right of victims to file suit, it's where they file suit, and in whose courts they file suit. The proper place to hold former Chilean dictators to account is in Chile's courts. It's not in courts in, say, Spain.

[snip]

[/B]

Our courts (most of the other European countries do also have similar provisions) have in fact universal jurisdiction when the matter is of such a type that can be internationally prosecuted (in Pinochet's case it was enough for Garzon to act, that spaniards had been tortured and murdered in Chile for political reasons, which, was argued, was genocide). Amongst the matters our courts can know of, whatever it is the nationality of the offending person, are: terrorism; genocide; piracy; and traffic of people amongst others.

Oh! And we don't have activists lawyers (or judges, for that matter), here in the continent.


Cheers.

[Edited for clarity]

[Abu Bakr]

Originally posted by SimeyTheLimey:
Such test case suits are usually brought by activist lawyers who then hunt for a plaintiff (or class of plaintiffs) with potential standing and the right facts to advance the lawyer's legal agenda.

The issue here isn't the right of victims to file suit, it's where they file suit, and in whose courts they file suit. The proper place to hold former Chilean dictators to account is in Chile's courts. It's not in courts in, say, Spain.

The same would be the case if, say, a group of activists lawyers found some Cuban exiles in order to sue Castro for his regime's torture. That would be wrong too. Castro should be answerable to his own courts for his crimes committed as dictator of Cuba, not one in Miami.

So if a dictator has granted himself immunity from prosecution the victims will just have to accept that and forget any hope of being able to prosecute him?

That is just wrong IMO.

[SimeyTheLimey]

Originally posted by Tarambana:
Oh! And we don't have activists lawyers (or judges, for that matter), here in the continent.


Cheers.

[Edited for clarity]

Oh yes you do. That's exactly what is driving the push to expand the idea of universal jurisdiction from its traditional, rather limited meaning. Do a quick google of universal jurisdiction and you will see what I mean. Most of the links that will pop up are from activist groups with a pronounced agenda.

By the way, the traditional idea of universal jurisdiction allowed certain crimes to be punished by any sovereign once that sovereign has physical jurisdiction over the accused. Basically, it was for cases where pirates and slave traders happened to fall into the hands of a sovereign. It did not involve local magistrates scouring the earth looking for political targets to indict from jurisdictions thousands of miles from their own.

As the Wall Street Journal correctly points out, these legal strategies are fundamentally flawed. The proper party to indict anyone is the country where they committed their crime, and nowhere else.

[Tarambana]

Originally posted by SimeyTheLimey:
Oh yes you do. That's exactly what is driving the push to expand the idea of universal jurisdiction from its traditional, rather limited meaning. Do a quick google of universal jurisdiction and you will see what I mean. Most of the links that will pop up are from activist groups with a pronounced agenda.

No. Really. We don't. Because those are political groups that have no say att all in the process. And only judges can carry prosecution in those cases here in Spain. All the lawyers in these type of process can do very little to push an indictment.

Originally posted by SimeyTheLimey:
By the way, the traditional idea of universal jurisdiction allowed certain crimes to be punished by any sovereign once that sovereign has physical jurisdiction over the accused. Basically, it was for cases where pirates and slave traders happened to fall into the hands of a sovereign. It did not involve local magistrates scouring the earth looking for political targets to indict from jurisdictions thousands of miles from their own.

As the Wall Street Journal correctly points out, these legal strategies are fundamentally flawed. The proper party to indict anyone is the country where they committed their crime, and nowhere else.

Yeah. I know. That's what I liked least of Garzon's petition. But extradition is still appliable when both countries are signataries of the international treaty that punishes genocide, and have those extradition agreements in place.

There is no such thing as "only we can judge them". Much less when the country where the events took place has "de facto" prevented that possility.


If you don't belief me, check the first Lord's decision (though flawed).


Cheers.

[I'm off to a meeting now. If you have got any question, I'll answer tonight]

[SimeyTheLimey]

Originally posted by Tarambana:
No. Really. We don't. Because those are political groups that have no say att all in the process. And only judges can carry prosecution in those cases here in Spain. All the lawyers in these type of process can do very little to push an indictment.

And what do you think a judge is? He's not a greengrocer by profession.

[Tarambana]

Originally posted by SimeyTheLimey:
And what do you think a judge is?

They aren't in the continental system of law. Talking about activist lawyers here is absurd (Charles Louis de Secondat would hate you for that ).

The rule of law is applied differently as I expected you to know. I can only summarize right now, but wil expand further later on. We don''t have notions such as the Dworkins' "hot cases" here, nor do we admit that judges should judge on equity. They are totally and absolutely bound by the law.

Ugh. I really haven't got time right now. But I'll promise you I'll post more later on.

[SimeyTheLimey]

Originally posted by Tarambana:
They aren't in the continental system of law. Talking about activist lawyers here is absurd (Charles Louis de Secondat would hate you for that ).

The rule of law is applied differently as I expected you to know. I can only summarize right now, but wil expand further later on. We don''t have notions such as the Dworkins' "hot cases" here, nor do we admit that judges should judge on equity. They are totally and absolutely bound by the law.

Ugh. I really haven't got time right now. But I'll promise you I'll post more later on.

So your judges aren't legally trained? I find that a little hard to believe. Disturbing, even. Especially when these judges supposedly acting only on law are quite obviously stretching the law well beyond previously accepted boundaries.

Anyway, to get back to the basic issue. What is driving the push to change and expand the idea of universal jurisdiction is fundamentally hostility to the idea of national sovereignty. I think that is quite dangerous.

To take this case as an example. Suppose this Canadian court did issue an indictment because in the opinion of a Canadian prosecutor or judge the US president was guilty of war crimes. At a minimum, the judge would cause an international diplomatic incident. You can't go around indicting heads of states without it impacting international relations between states.

Of course, at the other end of that international dispute it could even spark a war. To be extreme, do you think the US would stand by if our president were placed under arrest? Sure, we'd peacefully send a diplomatic protest at first. But don't think the Marines wouldn't be packing their bags just in case.

That's probably an unlikely scenario. Cooler heads would probably prevail. But it does illustrate that this is playing with fire. Rules about sovereignty can't be casually tossed aside on a whim -- however fashionable it might be in some legal circles to consider them obsolete.

There is also the fundamentally wrong idea that key concepts like democratic accountability should be junked in favor of lawyer-driven transnational theories. Again, back to the Canadian case. The US just held a national election that was very much a referendum on the president. What place is it of a foreigner to try to undo that referendum with a court case in some friendly, but completely unaccountable jurisdiction? None whatsoever.

The same goes for Chile, and for other countries emerging from dictatorship. Chile gave Pinochet an amnesty for a good pragmatic reason. It was to help ease him out of his dictatorship without further bloodshed. That's a decision that only Chileans are qualified to make. No magistrate in Spain has any place challenging it.

As it turned out, Chile later reversed itself and is now prosecuting Pinochet. That's their choice, their right to do. But not anyone else's.

In sum: this is a genie that needs to be kept in the bottle, and the cork jammed in, hard.

[Tarambana]

SimeyTheLimey:


I certainly didn't express myself the way I wanted if I led you to believe that our judges aren't legally trained. I am going to try and further explain my position on that and the other issues at hand (I hope I�ll do better this time). Bear in mind I�ll use some conventions, and anything I quote will be referenced in the end of this post. I�d like to apologize beforehand for any and all mistakes I might make as English is not my first language. Finally, I�ll divide the main question in two parts, with attention both to the actual legal system and the �lege ferenda� one.

I.� About the lack of activists judges in Spain

Originally posted by SimeyTheLimey:
So your judges aren't legally trained? I find that a little hard to believe. Disturbing, even. Especially when these judges supposedly acting only on law are quite obviously stretching the law well beyond previously accepted boundaries.

Of course, our judges are legally trained; and no, they are by no means stretching the law. I�ll talk about the actual state of affairs regarding genocide later, but it will suffice for now to say that Garz�n had a valid point when he asked for Pinochet�s detention (though I dislike how he worded some parts of his petition).

What I was trying to tell you, Slimey, is that the continental system of law spawns from different principles than the ones used in the common-law. Principles that achieve different ends buy their very own nature. Basically, when determining the place that must be taken by the law in any llegal system, there are two ends that are mutually exclusive, and demand different approaches: Justice (which, in the words of JUSTINIANUS in the Digesta, means the perennial will of giving each and everyone what they deserve) vs. Legal security (which means being sure beforehand of the effects that an specific act will produce).

You can either make law an �absolute-all-binding� rule, which is very much the thesis of the aforementioned Charles Louis DE SECONDAT baron �de la Br�de et de Montesquieu�. He stated repeatedly (1) that judges should simply be the mouth tha states the law, without having any say on it. I wasn�t until Hans KELSEN (2) created his �Pure Theory of Law� that we began admitting that maybe the Judge did somewhat created the law. He said that as every single law and legal rule spawned both formally and materially from another one, superior to it, the application of the law to the specific case before teh judge, was the last step in tha process of legal specification.

Aside from KELSEN�s point of view, which most continental legal systems do not admit but in a limited sense, these that develop from the Civil Code of Napoleon {1804} by making the law a most binding rule, preclude the possibility of Judges getting away from it, and secures the mentioned principle of legal security, and in certain cases lack the best means toi achieve justice.

On the other hand, the common-law system, spawns from the fact that the precedent is the most binding legal element. As William BLACKSTONE (3) puts it, a former decision must be generally followed, except if it is deemed clearly absurd and unjust. The fact is that in your legal system justice was considered prevalent, and judges can, if the case at hand is specially complex and can�t be justly solved, separate from teh law, and decide, for example, on equity. IIRC (I haven�t been able to find it, and haven�t got time to look for it anymore) there was a case in the USA Supreme Court, in which the court even ruled in a heritage in a way completely opposed to the law, in order to make sure the decision was just.

So even though this a gross simplification as there are many other relevant differencies (v. gr., judges are also elected in a different way), as you can see, in Spain (and in most other european countries), there can be no activist judges, because they can �t decide but with total submission to the law.

Finally, our lawyers can�t either act as activists in these type of cases, as it is only the judge who instructs matters of so great importance as genocide. Only the judge can decide whether the merits of the case grant a process, and whether it is legal or not to prosecute. Even attorneys have a limited saying in this matter. As, in fact, lawyers (most times) aren�t even present in this phase, and only the judge (who as I explained is totally subject to law), there can be no activism.


II.� About Pinochet�s case: a legal approach

Originally posted by SimeyTheLimey:

[snip]

The same goes for Chile, and for other countries emerging from dictatorship. Chile gave Pinochet an amnesty for a good pragmatic reason. It was to help ease him out of his dictatorship without further bloodshed. That's a decision that only Chileans are qualified to make. No magistrate in Spain has any place challenging it.

[snip]

Well, in fact, except from an approach that examines what should be and not what is, that is false.

Basically, there were two problems with that case: first, whether Pinochet had or not inmunity; second, whether Garz�n had or not jurisdiction to examine and judge the case. I�ll stick to the second one.

It is really very simple, as our Criminal Code punishes genocide (4) in its section (art�culo) 607 (different problem would be whether there is such a thing as political genocide, but anyway) and there were spaniards tortured and murdered under Pinochet�s dictatorship. To this effect, our Judicial Branch Act (Ley Org�nica del Poder Judicial) states in its section (art�culo) 23.4.a) that �Spanish Courts will also have jurisdiction to prosecute acts commited by spaniards and foreigners out of Spain�s national territory that, according to spanish law could be typified according to the spanish law as: a) Genocide (�)�

Also, you must keep in mind that this very same system of international (or even better, universal) jurisdiction regarding genocide is in effect in most parts of Europe. Before, it was due to the Brussels Convention {1963} and nowadays it is the fruit of the European Reglament 44/2001, {12.22.2000} of which both Spain and England are part.

So, it must be clear by now that Genocide can be prosecuted no matter where, and that Garz�n had jurisdiction to do so. It was also said back then that Pinochet had inmunity. Not only was that false in that case (as I�ll explain in a moment), but it is also wrong to state that the head of any government has such inmunity of jurisdiction or of execution. At least that I know of, there is no international treaty that grants so to any of them.

In Pinochet�s case, the Vienna Convention {1961} that was used to argue that he could not be indicted was not appliable. No single disposition in the Convention is meant for the head of a state, nor are they appliable in a third state (v. gr., 29, 31.1 and 31.3, 37, 39.1 y 39.2 and 40.1). The reason those provisions aren�t to be applied to Pinochet is that he wasn�t in the UK as a member of the Chilean Diplomatic Mission, nor was he in transit towards a different state in which he should become a member of the Chilean Embassy.

Furthermore, the detention in the UK was based upon section (art�culo) 15.3 of the Extradition Treaty between Spain and the UK {1985} and in accordance with section (art�culo 15.4). The extradition to Spain was founded upon sections (art�culos) 6, 9 and 18 of the spanish Passive Extradition Act. Also, the Treaty {1985} must be interpreted accordingly with a verbal aclaratory note sent by the british Embassy {2.28.1986} that specifically included genocide amongst the crimes to be subject to extradition. Pinochet had lost the inmunity that was granted to him by section (art�culo) 7 of the Spanish-Chilean Extradition Treaty {1992} by going to the UK as a normal citizen. Should be had traveled as a member of the Diplomatic Mission, he would had been safe.

To sum it up. Genocide is universally prosecutable. Garz�n, as any other european judge, bound by the Brussels convention had jurisdiction under spanish law to petition his extradition and, if granted, try him. Finally, let me remind you that the sole reason Pinochet was sent back to Chile, was because of humanitarian reasons. (5)


III.� About universal jurisdiction, criminality and its shortcomings

[snip]

Anyway, to get back to the basic issue. What is driving the push to change and expand the idea of universal jurisdiction is fundamentally hostility to the idea of national sovereignty. I think that is quite dangerous.

To take this case as an example. Suppose this Canadian court did issue an indictment because in the opinion of a Canadian prosecutor or judge the US president was guilty of war crimes. At a minimum, the judge would cause an international diplomatic incident. You can't go around indicting heads of states without it impacting international relations between states.

Of course, at the other end of that international dispute it could even spark a war. To be extreme, do you think the US would stand by if our president were placed under arrest? Sure, we'd peacefully send a diplomatic protest at first. But don't think the Marines wouldn't be packing their bags just in case.

That's probably an unlikely scenario. Cooler heads would probably prevail. But it does illustrate that this is playing with fire. Rules about sovereignty can't be casually tossed aside on a whim -- however fashionable it might be in some legal circles to consider them obsolete.

There is also the fundamentally wrong idea that key concepts like democratic accountability should be junked in favor of lawyer-driven transnational theories. Again, back to the Canadian case. The US just held a national election that was very much a referendum on the president. What place is it of a foreigner to try to undo that referendum with a court case in some friendly, but completely unaccountable jurisdiction? None whatsoever.

[snip]

As it turned out, Chile later reversed itself and is now prosecuting Pinochet. That's their choice, their right to do. But not anyone else's.

In sum: this is a genie that needs to be kept in the bottle, and the cork jammed in, hard.

First of all, I agree that there are many potential dangers in a international body of justice, but I also think its benefits far surpass its difficulties.

Also, I don�t think there is any such thing as hostility to the idea of national sovereignity (IIRC JELLINEK had a very interesting opinion in this matter ins his �Staatsfragmente�, but I simply can�t find the quote). After all, the only way one can deprive a Nation from its sovereign right to rule itself is either through war (attacking and occupying it) or because such a Nation has considered necessary to renounce to it, either totally or in a limited way (which is approximately what is happening in Europe with the EU). I�d say the problem lies with the globalization process, that makes esential to find new ways to legislate and rule.

I agree that these things could very well even give place to a war. Luckily, those in charge of writing the laws and treaties in effect, have always understood that the only way to avoid so was to make efficient use of the rule of law by reaching binding conventions and treaties to which the affected states must stick. This way, there is no sovereign problem (as the very same holder of that sovereignity is the one voluntarily renouncing to it in whole or in part), and the chances of a war are negligible, as those treaties have the means of dealing with the problems that these indictments might bring forth.

I�d have no problem with the head of my state being judged for genocide (or any other crime that allows for universal prosecution) in a different country, as long as we had singed treaties with those that are going to judge him, and as long as in those treaties were delineated in a way that respected international law.

I don�t either see a tendecy to junk democratic accountability (which can very well coexist with universal jurisdiction), no matter how little or limited it is. What I see is the certainty that political responsability and accountibility is no longer what the Virginia Declaration of Rights made it be. I am quite certain that most politicians are aware of many means to avoid or limit such responsibility. In those cases, I find it to be a good thing that there are other means to bring justice.

This said, I don�t mean at all that Canada could nor should indict Bush. I have only superficially reviewed the pertinant legislation, but I think there isn�t as much fundament in this case as there was in Pinochet�s.

All in all, I wholeheartedly disagree with the notion that the mere possibility of an international body of justice should not be developed. I think we have the means and the tools to make sure none of the conflicts you pointed should come as a result of these situations.



Cheers.



P.S.: Sorry for the lengths of this post, but I have tried to be as concise as possible.



-----


(1) � Montesquieu, �L�Esprit des lois� [Books I and XIX, specifically]
(2) � Kelsen, �The Pure Theory of Law�
(3) � Blackstone, �Commentaries on the Laws of England� [the first two sections, basically, to be compared with Montesquieu�s writings]
(4) � Francisco Mu�oz Conde, �Derecho penal espa�ol�.
(5) � Should you want more information regarding the Pinochet case, you could check:
a. Enrique Gimbernat Ordeig, �Ensayos Penales�; and �Estudios de Derecho Penal�.
b. About the criminal legal system in continental europe, the best book written is �Strafrecht. Allgemeiner Teil, Band I; Grundlagen. Der Aufbau der Verbrechenslehre�, by Claus Roxin.

[Wiskedjak]

Originally posted by Athens:
Ok I thought I have seen it all but this is just
... snip ...

Link please?

[SimeyTheLimey]

Originally posted by Tarambana:
SimeyTheLimey:


First of all, I agree that there are many potential dangers in a international body of justice, but I also think its benefits far surpass its difficulties.

Also, I don�t think there is any such thing as hostility to the idea of national sovereignity (IIRC JELLINEK had a very interesting opinion in this matter ins his �Staatsfragmente�, but I simply can�t find the quote). After all, the only way one can deprive a Nation from its sovereign right to rule itself is either through war (attacking and occupying it) or because such a Nation has considered necessary to renounce to it, either totally or in a limited way (which is approximately what is happening in Europe with the EU). I�d say the problem lies with the globalization process, that makes esential to find new ways to legislate and rule.

I agree that these things could very well even give place to a war. Luckily, those in charge of writing the laws and treaties in effect, have always understood that the only way to avoid so was to make efficient use of the rule of law by reaching binding conventions and treaties to which the affected states must stick. This way, there is no sovereign problem (as the very same holder of that sovereignity is the one voluntarily renouncing to it in whole or in part), and the chances of a war are negligible, as those treaties have the means of dealing with the problems that these indictments might bring forth.

I�d have no problem with the head of my state being judged for genocide (or any other crime that allows for universal prosecution) in a different country, as long as we had singed treaties with those that are going to judge him, and as long as in those treaties were delineated in a way that respected international law.

I don�t either see a tendecy to junk democratic accountability (which can very well coexist with universal jurisdiction), no matter how little or limited it is. What I see is the certainty that political responsability and accountibility is no longer what the Virginia Declaration of Rights made it be. I am quite certain that most politicians are aware of many means to avoid or limit such responsibility. In those cases, I find it to be a good thing that there are other means to bring justice.

This said, I don�t mean at all that Canada could nor should indict Bush. I have only superficially reviewed the pertinant legislation, but I think there isn�t as much fundament in this case as there was in Pinochet�s.

All in all, I wholeheartedly disagree with the notion that the mere possibility of an international body of justice should not be developed. I think we have the means and the tools to make sure none of the conflicts you pointed should come as a result of these situations.



Cheers.



P.S.: Sorry for the lengths of this post, but I have tried to be as concise as possible.



-----


(1) � Montesquieu, �L�Esprit des lois� [Books I and XIX, specifically]
(2) � Kelsen, �The Pure Theory of Law�
(3) � Blackstone, �Commentaries on the Laws of England� [the first two sections, basically, to be compared with Montesquieu�s writings]
(4) � Francisco Mu�oz Conde, �Derecho penal espa�ol�.
(5) � Should you want more information regarding the Pinochet case, you could check:
a. Enrique Gimbernat Ordeig, �Ensayos Penales�; and �Estudios de Derecho Penal�.
b. About the criminal legal system in continental europe, the best book written is �Strafrecht. Allgemeiner Teil, Band I; Grundlagen. Der Aufbau der Verbrechenslehre�, by Claus Roxin.

It's a great post (with footnotes! ). Thank you.

I disagree though that all of this is just an accidental happenstance of how treaties happened to fit together. There is a project going on, and you correctly link this to the idea of the ICC. It's not a coincidence that these suits and prosecutions are happening at the same time as that polical effort. Even if they are not directly orchestrated, the ideas are being circulated. The Princeton Project is an example.

Of course, one of the biggest flaws of the ICC is that it purports to bind non-signatories. That is completely unacceptable, and contrary to established principles of international law.

The US is not immune to the universal jurisdiction fad. In fact, we have the grandaddy of them all in the Alien Tort Statute, which has been quite popular with all kinds of human rights litigants, many with claims that have nothing whatsoever to do with the US. I'd personally like to see that statute repealed just as Belgium cut back its universal jurisdiction statute.

Whether you want to recognize it or not, universal jurisdiction is fundamentally inconsistent with sovereignty. It's also inconsistent with democratic accountability when courts are used to influence political decisions made by democratic governments. That is, of course, the primary aim of the activists pushing for indictments against Bush, Kissinger, and so on. Their aim is to attempt to outlaw certain froms of state action -- for example, preemptive war.

That's barely tolerable when the courts are part of the same constitutional scheme as the executive they limit. That's completely intolerable when they are foreign to that constitutional scheme. Fortunately, as I believe Justice Marshall put it, the courts have neither sword nor purse. When I suggested that overzealous courts could cause international incidents, even wars, it should be taken seriously as a real problem.

You suggest treaties as a way around this. Of course, if everyone agrees to subject themselves to unelected and unaccountable courts in other countries, then there is no problem. Sovereigns can bind themselves any way they please. The problem is when the sovereign of one state thinks that is a great idea, and the sovereign of another state thinks that is a very bad idea. That's where the clash would occur.

I also see no way to limit this expansive theory. Suppose my hypothetical Maimi court decides to indict Castro (actually, similar things have already happened under the Alien Tort Statute). Does this mean that the next time President Castro visits the UN, the US should be allowed to arrest him?

[Tarambana]

Originally posted by SimeyTheLimey:
It's a great post (with footnotes! ). Thank you.

I disagree though that all of this is just an accidental happenstance of how treaties happened to fit together. There is a project going on, and you correctly link this to the idea of the ICC. It's not a coincidence that these suits and prosecutions are happening at the same time as that polical effort. Even if they are not directly orchestrated, the ideas are being circulated. The Princeton Project is an example.

Of course, one of the biggest flaws of the ICC is that it purports to bind non-signatories. That is completely unacceptable, and contrary to established principles of international law.

The US is not immune to the universal jurisdiction fad. In fact, we have the grandaddy of them all in the Alien Tort Statute, which has been quite popular with all kinds of human rights litigants, many with claims that have nothing whatsoever to do with the US. I'd personally like to see that statute repealed just as Belgium cut back its universal jurisdiction statute.

Whether you want to recognize it or not, universal jurisdiction is fundamentally inconsistent with sovereignty. It's also inconsistent with democratic accountability when courts are used to influence political decisions made by democratic governments. That is, of course, the primary aim of the activists pushing for indictments against Bush, Kissinger, and so on. Their aim is to attempt to outlaw certain froms of state action -- for example, preemptive war.

That's barely tolerable when the courts are part of the same constitutional scheme as the executive they limit. That's completely intolerable when they are foreign to that constitutional scheme. Fortunately, as I believe Justice Marshall put it, the courts have neither sword nor purse. When I suggested that overzealous courts could cause international incidents, even wars, it should be taken seriously as a real problem.

You suggest treaties as a way around this. Of course, if everyone agrees to subject themselves to unelected and unaccountable courts in other countries, then there is no problem. Sovereigns can bind themselves any way they please. The problem is when the sovereign of one state thinks that is a great idea, and the sovereign of another state thinks that is a very bad idea. That's where the clash would occur.

I also see no way to limit this expansive theory. Suppose my hypothetical Maimi court decides to indict Castro (actually, similar things have already happened under the Alien Tort Statute). Does this mean that the next time President Castro visits the UN, the US should be allowed to arrest him?

You're welcome. I tend to have very little free time, so I hope you shall excuse me if (as much as I'd like) not all my post are so extensive.

I totally agree that the ICC proposed ability to indict nationals of non signatary countries is a grave mistake. It might very well in the long run tamper and even ruin the usability of the Court itself. I believe such an international court is extremely dependant of the geopolitical forces that affect it and that only when those forces support it shall its decissions carry weight. It could even end in a worse situation than the ICJ (that in many instances and even against signatary nations, had very little effect). I think the right (in the sense of effective) way to achieve a functional ICC would be to copy the model of the ECHR (specially regarding the heatedly debated protocol 14).

You also say that there is a process going on which is aimed to put an end to democratic accountability and sovereignity in favor of universal jurisdiction. I don't know. I haven't seen such a thing. That is, I also notice what most scholars call the "third phase of international law", that would mean it is becoming fully effective through international legal organisms to which the States attain some of the functions inherent to their sovereignity. I don't know anyone pursuing it as some kind of political agenda, but I have very little contact with politicians and too much with legal experts, so I guess is fair to say I lack enough data to give an informed opinion on that matter. Maybe you are right.

I also understand that you see incompatible democratic accountability and sovereignity with universal jurisdiction. Luckily, as I said, it is being (mostly) built upon the free renounce of powers associated with sovereignity by those samestates affected by it. But I certainly agree that there might be problems if "� sovereign of one state thinks that is a great idea, and the sovereign of another state thinks that is a very bad idea". All in all, I doubt it would happen (I have far more confident with judges and politicians).

I don't know about Cuba, but (without having thoroughly studied that possibility) I'd say it is certainly viable.

Oh! And for the record, you are completely right when you say that the USA have never been inmune to international jurisdiction. Very much the opposite, and you certainly have a good record, both democratic and in terms of human rights protection.

[Athens]

Originally posted by Wiskedjak:
Link please?

This is the group that laid the charges
http://www.lawyersagainstthewar.org/

[strictlyplaid]

Originally posted by jbartone:
The government or someone got it thrown out.

EDIT: Yeah, what the second half of your post says. Despite what the professor guy says, I doubt it'll ever happen. Stupid commies.

Yeah, those Canadian communists, always thumping the Marxist doctrines of.. rule of law, no torture, and national health insurance?

I think you've got the wrong ideology here.

[Athens]

Originally posted by strictlyplaid:
Yeah, those Canadian communists, always thumping the Marxist doctrines of.. rule of law, no torture, and national health insurance?

I think you've got the wrong ideology here.

huh

[strictlyplaid]

Originally posted by Athens:
huh

Hm, maybe I misinterpreted that quote. Apologies. But calling Bush or the Canadian government communists confuses me even more, to be honest.

[Athens]

AH I got it now, I read it at the end of my shift and I was dead tired. Didn't understand what you ment there orginally.