Friday, July 27, 2007

International Criminal Court and Principle of Complementarity

On July 17, 1998 120 states voted to adopt the Rome Statute of the International Criminal Court. Today 104 countries are signatories of the statute. Unlike the International Court of Justice, the ICC will not hear cases between nation-states, but rather will try individuals accused of the most serious crimes under international law, such as genocide, crimes against humanity and war crimes. While the U.S. under Clinton was supportive of the ICC, the Bush administration has been antipathetical to it for understandable reasons. This has created emergence of a two-tiered system in the human rights law: signatories and non-signatories of the ICC. It is important though to examine the principle of complementarity because many non-signatories view the ICC as an 'absolute monarchy.' The jurisdiction of the ICC is complementary to the national jurisdiction of a signatory state. If the state that would ordinarily exercise jurisdiction is unable or 'unwilling' to proceed in a given case, only then can the ICC step in. This is elaborated in Article 17 of the Rome Statute. What matters is a bona fide effort to prosecute for those crimes named in the Statute. This of course implies that states should implement the Rome Statute into their domestic laws so that they can exercise jurisdiction rather than surrender their national to the ICC. This also means that the ICC necessarily needs national cooperation which would in fact improve compliance with international law. So, it is clear those who do not want to ratify the Rome Statute are first of all skeptical of international law and do not want to make it part of their domestic legal process. This is apparent when looking at the list of countries who have joined. Those who are not joining including the U.S. will be outsiders to genuine international law processes that can in fact put a halt to such crimes as genocides and war crimes. If the U.S. wants to lead the world, it must become a nurturer and gardener for international criminal law.

Thursday, July 26, 2007

The Thinker

Auguste Rodin (1840-1917) had this famous sculpture placed in front of the Pantheon on April 21, 1906. This was the first work of Rodin to be erected in a public place. Due to the political atmosphere in Europe at that time, the sculpture drew much attention and turned into a socialist symbol. Rodin died in 1917, the year of the October Revolution in Russia, installing the Bolshevik party in the White Palace. Napoleon's dream of clearing Europe of 'aristocracy' and the 'tsars' seemed to come true... Socialism seemed to be the solution to ending poverty, injustice and class stratification... Did it? Time revealed that no matter what the labels are, "power corrupts, and absolute power corrupts absolutely."

Islamic law

The failed export of democracy in Iraq has also forced people to seriously think about Islamic law. Perhaps, its implementation not suppression is the solution. Secularism as it is envisioned in the West does not necessarily have to be the goal for countries with Muslim populations. Of course, some people will argue that when the state proclaims certain religion, it necessarily excludes other religions and thence comes discrimination of other religions. But the formulation can be a bit different. Rather than advertise Islam as a religion, Muslim states may simply harmonize Islamic religious principles with the contemporary demands. After all, many have argued that Islam is not simply a religion any more. It is a culture, a lifestyle. A state is a mirror of the people it represents. How can a Muslim state not embrace an Islamic cultural heritage? It is absurd. Just as France cannot help embracing secularism (laicite), a Muslim state cannot help embracing Islam. Therefore, let us think hard before we even raise the concept of 'secularism' in the context of Muslim countries. Secularism and Islam are not mutually exclusive, believe it or not. Moreover, Islam as a religion is separate from fundamentalism. Therefore, implementation of Islamic law will not lead to more fundamentalism, or extremism. It will only help Muslims create viable institutions that would contain violence and provide for sustainable peace.

Iraq and Failed Export of Democracy

I hope by now people have recognized that democracy cannot be exported. Iraq at least is a living example. Jose Ortega y Gasset wrote in his book "Concord and Liberty," "Here we begin to understand that each authentic insitutiton is untransferable. Suppose we wanted to lift it out of its native soil, where should we cut it? Where begin and where end those political entities which language, owing to its magical power of creating phantoms, puts before us as independent and self-sustaining objects, calling them by the definite names of 'tribunate of the people,' 'parliament,' 'freedom of the press'? None of these institutions terminates in a clear-cut line. They all reach back into the particular collective life where they originated and whence they receive their indispensable supplements, their strength and their control. He who wishes to transplant an institution from one people to another must bring along with it that people in its veracity and reality. Laws of foreign nations may serve as incitement and even as guidance-- Rome not infrequently took her bearings from the juridical conceptions of Greece-- but in the last instance every nation must invent for itself. Invitation of alien political institutions betrays a pathological state of society. A people cannot take its institutions from the manifest surface of foreign nations: it must discover them in its innermost beeing if it wants to lead a life in freedom. Freedom cannot be achieved by proclaiming a few random liberties. Life in liberty presupposes a perfect continuity of circulation throughout the collective body, from the heart of its common beliefs to the skin which is the state, and back from the skin to the bowels of faith."

Wednesday, July 25, 2007

Vladimyr Vysotsky

On July 25, 1980 the Soviet Union lost one of its most talented sons. Vladimyr Vysotsky was not only a singer, a poet. He was the living conscience of the Soviet Union. A hero, a martyr... He was one of the very few who openly criticized and castigated the totalitarian regime of the empire. And he did it with such breathtaking power, passion and intense anger that it really cost him his health... He died shouting the truth and twisting his fists... His whole life was like a conflagration and a complete insane sacrifice for the love of his country. In his last letter he expressed his agony over the future of the country and despair... He has remained one of the most beloved figures in the former Soviet Union. His legacy can only be compared with that of Martin Luther King Jr. in the U.S... But he did not die in vain. Russia has had a profound change since his times and is on its way to European integration and democratization. There is much hope for that. It takes martyrs like Vysotsky to accomplish this much.

Tuesday, July 24, 2007


In Dostoevsky's "Brothers Karamazoff" Ivan says to Alyosha, "Understand me right, it is not your God that I am not accepting, it is the world He has created I cannot accept and will not." (translated by Zoya) Dostoevsky was writing this outraged with the level of human suffering that he witnessed... And yet he was hopeful that "the beauty will save the world." Those who came after him questioned the very concept of beauty... By 'beauty' Dostoevsky meant purification of the human soul and love... It reminds me of John Lennon's words, 'Love is all we need.'

Wake Up!

Yes, it is global warming... and yes, each and every one of us is responsible to prevent the catastrophe! Live Earth Concerts and Al Gore's amazing dedication show that if we raise our awareness about the crisis, we can all do something about it... This is easier than preventing weapons of mass destructions, because there, states are the actors... Here we are the actors, as private individuals. Every day we should think seriously about how much we can do! Think about our daily consumption of energy. Why do people need to freeze in their offices at 65F degrees? Why is it that we do not like using public transportation? Why is it that we do not recycle? Why do we need to buy those ugly SUVs? Think about what will happen in 20-30 years if we do not stop and think for a moment! Do you imagine what our children will be going through because of our lethargy today? The air quality in most of our urban cities is absolutely deplorable... The number of deseases arising from that only is not to be counted here... I am not even talking about the garbage we throw at our environment every day... Walking in the park has become a travail-- watching all the trash emanating from the picknickers...
Why is it that the human civilization, so sophisticated and so intelligent, is also so self-destructive? This is a moment to wake up and realize that survival demands action!

Monday, July 23, 2007

Convention on the Prevention and Punishment of the Crime of Genocide

In the spirit of the Universal Declaration of Human Rights the UN General Assembly enacted the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the Resolution 260 (III)A on December 9, 1948.
Article 1 of the Convention confirms:
"that genocide, whether committed in time of peace or in time of war is a crime under international law which they [the contracting parties]undertake to prevent and to punish."

Article 2 defines genocide as:
"any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Article_4 furthermore states:
"Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals."

This Convention makes moot many of the arguments of Turkey in their justification of denial of the Armenian genocide in 1915. The Turkish government has constantly argued that the acts committed against Armenians were justified because they were during World War I and Turkey had to defend itself against 'rebellious Armenians.' First, factually it is a complete falsity. Did a huge Turkish population have to defend itself by intentionally exterminating a minority-- innocent Armenian women, children, and the elderly? The argument is so preposterous that cannot even be heard... Anyone who knows a little bit of history behind the genocide will laugh at it. In addition, the Convention clearly stipulates that there is no justification for genocide whether it is committed in time of peace or in time of war.
Second, Turkey has argued that the Ottoman empire did not authorize these acts and they were committed by the riffraff in the streets. Thus, it argues that these acts were not committed under color of law. This argument is also a factual fallacy because the history shows quite the opposite, that in fact the genocide was masterminded, organized and authorized by the public officials. But even if it this argument were true, it is not acceptable because of Article 4, which clearly confirms that private individuals can be found responsible for the acts of genocide, even if they were not acting under color of law.

Turkey has been desperately trying to rewind the tape, erase it and record a new history on the video of the new generations. But it forgets that the historical time machine does not go back, only forward and history cannot be erased.

Sunday, July 22, 2007

Universal Declaration of Human Rights

Article 11 (1) of the Universal Declaration of Human Rights postulates that all people are innocent until proven guilty... This is one of the most fundamental principles of the American criminal justice system... Yet it has lost its meaning... As a public defender questioning prospective jurors I could not get a decent response to my question, 'What does it mean to you to be innocent until proven guilty?' On a daily basis hundreds of cases end at the plea bargaining stage and only a few go to trial... That makes judges, district attorneys and criminal defense attorneys become somewhat cynical about the concept... 'Is your client really innocent?' That is the question I was posed from many lay persons as well as my professional opponents... A case that receives any sort of publicity is even in a worse shape. Once someone's name is associated with criminal charges and is coined with 'Defendant', that person is basically doomed in the eyes of the public... Remember what happened to Michael Jackson... Then a criminal defense attorney who tries to talk about 'innocence until proven guilty' is viewed as a clown... But what is the most scary is when the attorney loses trust in the client and stops believing in the 'innocence until proven guilty.' An attorney who does not believe in her client cannot passionately advocate for that client's rights.

Russian law students in San Diego...

Returning from teaching Russian law students from MSU at the San Diego State University... The Advocacy program focused on familiarizing the students to federal criminal trial process in the U.S. and comparing it to the Russian criminal law and procedure. These type of programs are invaluable because they show how the legal systems of various countries are similar in many respects and dissimilar in others. Comparative analysis is the beginning point for development of international law, because how else can future attorneys know and understand international law without knowing other countries' laws. These students were marvelous because they embraced the American Constitutional Criminal Procedure with such excitement that it was infectious. They spoke like U.S. Supreme Court Justices when explaining the Miranda rule and the right to counsel. I was simply enchanted! The law students here are not as amazed with these fundamental rules because they take them for granted... I wish, more American attorneys participated in these type of programs. They would really learn to appreciate the U.S. Constitution... Also, they would learn to see the weaknesses of our criminal justice system. The fact that America still has the death penalty is abhorring. It is also striking to compare the number of incarcerated here with the number in Russia...I guess, we in America like to see people go to prison...

Friday, July 20, 2007

World Citizen

The great Roman emperor Marcus Aurelius once said, "… My city and my country, so far as I am the emperor is Rome, but so far as I am a man, it is the world. " What does it mean to be a world citizen? One of the greatest values of humankind is to cast aside one's selfish existence and perceive oneself as part of a big whole. It is the ability to see the map of the Earth and mentally fly over the vast expanse, crossing the oceans, mountains, deserts, countries and peoples. It is the ability to travel and find oneself in every corner of the world among 'strangers' and 'aliens'. It is the ability to hear a foreign language but understand what is being communicated. It is also the ability to recognize one's country's mistakes in the international arena and criticize. Above all, it is simply the ability to view all people, nations, countries as similar and one and shout, 'International Solidarity and Peace to the World!'

Welcome to this blog

World War II marked a new era of genocide awareness. It was indeed the beginning of awakening of the international community quite speechless before the images of the Jewish Holocaust. Condemnation of genocidal acts of the Nazis marked a new apogee. Yet to this day Turkey has refused to accept responsibility for the Armenian Genocide of 1915. We will soon mourn over the 100th anniversary of the tragedy. This blog is dedicated to the memory of innocent victims of that shameful event. It is also dedicated to reminding the newer generations that silence and inaction in the face of injustice and violence will always result in more injustice and more violence.