News flash

One more example of how the Obama Administration is not any different from Bush's. The Administration has rejected the release of Chinese Uighurs, already cleared of charges but still detained at Guantanamo Bay, on the U.S. soil. Reminder, that these people are already cleared and are innocent of charges of plotting against the U.S. government. Yet, justice does not extend to aliens.

See here

Change is on the way?...

Promises for fundamental change in the United States policies and practice, specifically from those of Bush Administration, filled our hearts and minds not long ago... Inspired and excited we went to the polls...

The wisdom of the saying "Do not promise if you cannot deliver," has come back to haunt. President Obama has reneged on his promise to uphold long-held principles of human rights and has refused even to call the Armenian genocide by its name. (see here)

Has also not stood firm in his pledge to close the Guantanamo. By the very fact that he is supporting military commissions, he is following deeply-flawed policies of Bush. (see here)

Does change come half-way?

Marching of a New Era...

It has begun... It is not about talking and pointing fingers, but about living it, day after day...

Obama closes Gitmo... Read here

Hopeful...

Sometimes we get good news. Yesterday the U.S. Supreme Court took further steps to rehabilitate the failures of the Bush Administration with respect to handling the detainees/enemy combatants in Guantanamo... Needless to say, these 'failures' amount to serious and systematic denigration of international humanitarian law. The decisions did not resolve everything and left certain things up in the air. For a synopsis of the two cases see here. But in light of the complexity of the legal issues involved and the political dynamic behind the scenes, this is an awesome move!

Terrorism-- crime against humanity

Recently there has been much scholarly discussion about the international law definition of terrorism and exceptions to it. While understanding the complexity of possible exceptions and exemptions, I have no difficulty of defining terrorism as a crime against humanity. And a crime against humanity is defined in Article 7 of the Rome Statute of the International Criminal Court. I do not feel the need for another separate definition for an act of terror. I understand the scholars' concerns about the abuse of the term to include also acts of political dissidence or claims for self-determination. Guerrilla warfare used as a tool to defend one's country against 'occupiers' potentially is exempt. For example, I do not think the Palestinians fighting for their land or seeking self-determination are 'terrorists.' It would be absurd to claim that. But who is the target? That is the question. Essentially an act of terror is violence against civilians, not armed forces, therefore it is a crime against the whole humanity, not a particular nation. For example, the 9-11 was a crime against humanity and that is the reason that the whole world not only the US was shaken by it. The difficulty arises when during an armed conflict civilians also die because of deliberate lack of differentiation. How do you then draw the line? During the Lebanon-Israeli crisis last year the Human Rights Watch was disturbed by Israel's lack of differentiation resulting in many civilian deaths on the Lebanese side. Is that an act of terror or an unhappy by-product of war/armed conflict? After all, we all know that war means deaths not only of armed soldiers but unfortunately and most dreadfully of innocent civilians. The 9-11 and Benazir Bhutto's killing were classic acts of terror but other events are really harder to pin down. My issue is not how to define terrorism, but how to classify certain events under its column (related issues). Another problem is how to attribute terror acts to states? When certain states covertly assist various terrorist organizations by sponsoring, financing, giving them refuge on their territories, aren't they also responsible? But then isn't that a dangerous road to take? Then we would authorize ourselves to attack these states in 'preemptive self-defense'. How reasonable is that? Is that right? Should innocent civilians pay the heavy price of acts done by certain criminals?

Now another challenge is to find an appropriate international criminal forum for trying individuals/groups charged with this crime. Similar to ICTY and ICTR we need an impartial tribunal to try these folks. Then we would eliminate the whole problem/unlawfulness of Guantanamo-like detentions. I think we already have such a tribunal-- the ICC. The only problem is to convince the United States that ICC should be the appropriate place for trying these individuals. The next step for the United States is to ratify the Rome Statute and deliver these detainees to the Hague...

2008 elections

Why the 2008 elections are so important for the US? People talk a lot about the economy, oil crisis, big business, jobs, the middle-class... They talk a lot about the health care, incompetence and broken machine in Washington. Of course, they also talk a lot about the war in Iraq. But, while important, these are little pieces of a mozaic, little tidbits of a larger picture that we should not forget to look at. These elections are about the identity of America, its place in the world as a nation. It is about the definition of democracy. It is about how the US can continue defending itself as a nation against perceived and real enemies without shedding human rights, without reneging on the promise of democracy, without resorting to hypocrisy in its relations with other nations in the world. It is also about the ability to co-exist with others in the world and not impose values on other peoples around the globe. Patriotic Americans much too often cross the line from benevolent patriotism to xenophobic nationalism, which has given its deplorable fruits in these last years. We do not have to be the most prosperous nation in the world when the rest of the world is enmeshed in poverty. We can learn from other nations in things they have done better than us. We do not have to be the 'strongest' nation militarily and intimidate others, wiping out all those who disagree with us. Can we be an example? Can we be a leader? Sure. But only if we uphold the deep values that have been at the core of this country from the beginning.

So, when you are listening to all the media stories, about all the imperfections of all candidates, search and find the big picture, do some heart-searching when voting.

(Find out more here about the Bush Administration's actions in the war on terror.)

Collapse of Humanism and Faulkner

The Convention Against Torture went into force on June 26, 1987. The US ratified it on October 21, 1994 with a declaration:

... nothing in this Convention requires or authorizes legislation, or other action by the US prohibited by the Constitution of the US as interpreted by the US.

As I mentioned before, this was a characteristic style of US ratifications of treaties--always, posing the US Constitution as interpreted by the US to be superior, if in clash with the specific Convention.

Furthermore, the US made few well-known today reservations. One was in the form of limiting the definition of torture for its purposes (here):

(1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

This was an important reservation because it basically imposed a specific intent requirement for torture. If torture is inflicted without intent, it does not count as a violation of the Convention.

Furthermore, the US also was worried about protecting its officials:

(d) That with reference to article 1 of the Convention, the United States understands that the term `acquiescence' requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.

So, if the public official ignores to learn about the activity, he is shielded from liability.

These reservations and the way the US understands its international obligations came very handy during the tragedy in Abu Ghraib and all the time in Guantanamo. While the US Supreme Court gave certain red lights to the Bush Administration, Congress reacted by enacting the Military Commissions Act of 2006 which was not very helpful. So, nothing happened to reinforce the lessons of Abu Ghraib and Guantanamo. "Torture" has a very limited definition when it comes to anti-terrorism.

It is quite enlightening to compare the beginning of the 20th century with that of the 21st. It was the collapse of humanism that led to genocides and the two world wars... Now we have terrorism and 'anti-terrorism' wrongs that culminated in another collapse of humanism. William Faulkner, one of the greatest American minds, then warned people not to fight evil with the help of evil... Evil cannot destroy the evil... Only kindness and justice can destroy the evil... Today all should heed very carefully to these words by Faulkner.

Geneva Conventions and Humanitarian Law...

While the concerns of humanitarian law are more limited than those of human rights law, they are nonetheless very important, since they impose rules of wars and aspire to limit barbarity in times of war. The centerpiece of humanitarian law is perhaps the series of Geneva Conventions that regulate various aspects of conducting wars. The first Geneva Convention in 1864 dealt exclusively with care for wounded soldiers. Later it was expanded and revised. In 1949 four Conventions were adopted:
1st-- on wounded soldiers on the battlefield
2nd-- wounded and shipwrecked at sea
3rd-- prisoners of war
4th-- civilians under enemy control

Furthermore, in 1977 2 Additional Protocols were added.
For our purposes, it is useful to read the provisions of the 3rd Convention carefully:

Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Notably, Part III deals with the rules of captivity and internment of prisoners of war.

One of the most important issues in the US law recently was whether this treaty is self-executing or not. The crux of the matter is whether the enemy combatants in Guantanamo could avail themselves of the Geneva Convention without a legislation by Congress authorizing it. This of course has been a major issue in the US since the beginning of time. It always struggled in delineating the hieararchy of laws-- treaties with foreign nations or the US Constitution... The priority is given to the US Constitution and therefore, every time the US ratified treaties, it made several and well-known reservations (thereby limiting the scope of a treaty for its purposes)... This itself is a result of the distrust of international law in the US and unwillingness to enforce it in its affairs... But as we have seen, this unwillingness has made the US pay a heavy price in the world when it comes to the treatment of prisoners in Guantanamo and the series of violations of the Geneva Conventions...