Edmund Burke (1729-1797) was an Irish statesman, author, orator, political theorist and philosopher who, after moving to England, served for many years in Britain’s House of Commons as a member of the Whig party. He is remembered for his support of the cause of the American Revolution and for his later opposition to the French Revolution. He often has been regarded as the philosophic founder of modern conservatism.
In 1774 Burke was elected to Parliament for Bristol, which at the time was “England’s second city” and a great trading city. Many of his constituents were opposed to free trade with Ireland, which Burke supported. This and other issues lead to his defeat in the 1780 parliamentary election.
After his election in 1774, Burke gave what became a famous speech on the philosophy of the duties of an elected representative. He said:
“[I]t ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinions high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasure, his satisfactions, to theirs—and above all, ever, and in all cases, to prefer their interest to his own.
But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure—no, nor from the law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion. . . .
[G]overnment and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that in which the determination precedes the discussion, in which one set of men deliberate and another decide, and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?
To deliver an opinion is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to consider. But authoritative instructions, mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest convictions of his judgment and conscience—these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our Constitution.. . .
Parliament is a deliberative assembly of one nation, with one interest—that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member, indeed; but when you have chosen him, he is not member of Bristol, but he is a member of Parliament. If the local constituent should have an interest, or should form an hasty opinion evidently opposite to the real good of the rest of the community, the member for that place ought to be as far as any other from any endeavour to give it effect.”  (Emphasis in bold added.)
Fast forward from Britain in 1774 to the U.S. in 2011. Many groups now ask or demand that candidates for public office sign pledges to adhere without exception to certain positions held by the group. I think especially today of Grover Norquist and his Americans for Tax Reform with his insistence on “no new taxes.”
This is a horrible development in our political life. I am opposed to all such pledges on the grounds advanced by Burke. I am also opposed to the Norquist pledge in particular.
The current political wrangling in the U.S. Congress over the U.S. debt ceiling is disgusting.
In order for the U.S. to avoid defaulting on its Treasury securities, the U.S. Congress needs to pass a bill to increase the debt ceiling before August 2, 2011. If the Congress does not do so, then there would be catastrophic consequences for the U.S. and hence the global economy. Most economists and informed commentators, I think, are agreed on these propositions. Moreover, in my opinion, it is too risky to experiment and test the contrary views expressed by the minority.
Some stupid suggestions have been made to evade the above analysis and not raise the debt ceiling. Former Minnesota Governor and presidential candidate Tim Pawlenty said the U.S. could continue to pay interest on its securities (a lot of which are held by the Chinese government) and not pay U.S. military personnel and ordinary Americans. Another Minnesota presidential candidate, Michelle Bachmann, has taken a similar position. Even if such absurd actions could avoid adverse reaction in the world market for U.S. securities, which I doubt, who can seriously believe that there would not be a horrendous chain of reactions from our military personnel and citizens?
How can Pawlenty and Bachmann be taken as serious presidential candidates in light of just these stupid suggestions? Yet I read that Bachmann was number one in recent opinion polls of Republicans.
U.S. Senator Mitch McConnell, the Republican leader in the Senate, has admitted that not raising the debt ceiling runs a very high risk of causing disastrous consequences to the U.S. Therefore, he has proposed what is sometimes referred to as “Plan B,” a bill that would allow President Obama unilaterally to raise the debt ceiling for the balance of his term of office. This plan, McConnell crassly admitted, was motivated by his desire not to help President Obama get reelected.
The Republicans’ call for reductions in government spending flies in the face of the elemental formula for Gross National Product: B (business spending) + C (consumer spending) + G (government spending) + E (net exports or exports- imports) = GNP (Gross National Product). Reducing government spending their way will reduce the incomes of many people dependent upon the government and, therefore, probably cause a reduction in consumer spending. Moreover, it is delusional, in my judgment, to believe that reducing government spending will cause an explosive increase in business confidence and spending to counterbalance the reduction in the former. Many corporations already have huge stashes of cash that they are not spending because consumer spending is weak. Consumer spending is weak because of high unemployment, general economic anxiety and reduced consumer wealth associated with declines in home values. In short, reducing government spending the way the Republicans want to do it will worsen our stalling recovery.
Moreover, the Republicans’ call focuses on the smaller slice of the federal budget devoted to improving our deteriorating infrastructure and maintaining the frayed social safety net for our citizens. We the People should be able to see these adverse developments with our own eyes. And those who know something about what is happening in the rest of the world know that the U.S. is falling behind many other countries on many facets of a healthful society.
No one, to my knowledge, is discussing the most important issue, in my opinion, that is raised by the huge and mounting U.S. national debt that needs to be addressed. What is a new U.S. national security strategy that protects the vital interests of our country while vastly reducing the size and global span of the U.S. military? Is the U.S. now in the position of earlier empires whose foreign expenditures to maintain their empires dragged down those regimes?
We the People and all of our elected representatives need to recover the spirit of moderation.
This spirit, said Learned Hand, “is the temper which does not press a partisan advantage to the bitter end, which can understand and will respect the other side, which feels a unity between all citizens–real and not the factitious product of propaganda–which recognizes their common fate and their common aspirations–in a word, which has faith in the sacredness of the individual. . . . [Such a spirit and faith] are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature. . . . They are the fruit of the wisdom that comes of trial and a pure heart; no one can possess them who has not stood in awe before the spectacle of this mysterious Universe; no one can possess them whom that spectacle has not purged through pity and through fear–pity for the pride and folly which inexorably enmesh men in toils of their own contriving; fear, because that same pride and that same folly lie deep in the recesses of his own soul.”
The recent documentary about Hubert Humphrey is inspirational and disheartening at the same time.
One is inspired to be reminded of the extraordinary life and talents of Senator and Vice President Humphrey. He entered the national political scene at the Democratic National Convention in 1948 as the Mayor of Minneapolis in his passionate and inspirational speech calling for his Party to enter “the bright sunshine of human rights.” After election to the U.S. Senate that same year, he continued to press for liberal, progressive legislation in his unique, spirited, passionate and committed way.
Humphrey talked about his drawing sustenance, as do I, from the Preamble to the U.S. Constitution:
“We the Peopleof the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” (Emphasis added.)
Humphrey stressed that the emphasized verbs of the Preamble were all calls for an active government, an observation that had escaped me. “We the People” through our federal Government are called upon to form, establish, insure,provide, promote and secure the previously stated goals or objectives. This calling is never finished as the words “a more perfect Union” emphasize. (I often had thought that this was an inapt phrase as something is either perfect or it is not; there cannot be degrees of perfection. Now, however, I see a larger purpose behind the phrase.)
The documentary also tells the story of Humphrey’s shepherding the Civil Rights Act of 1964 through the U.S. Senate and leading the battle and ultimate defeat of the southern Senators’ filibustering of the bill. (At the time, cloture of debate required 67 votes, not the 60 needed today.) Part of this skillful legislative leadership was compromising to gain support for the bill from Republican Senators, most notably Everett Dirksen of Illinois, and by yielding to Dirksen important roles in advocating for the bill.
Humphrey demonstrated in this instance and in the rest of his Senate career that persistence and compromise were both needed to advance the causes in which you believed. Your opponent today might be your ally tomorrow. Today you might not obtain all that you want in a particular piece of legislation, but there are always tomorrows to work on the unfinished business.
I also found the documentary disheartening. Today we the People desperately need another passionate, committed advocate for a strong, active federal government. We also need legislators in the Congress who welcome compromise as an important and necessary ingredient for advancing the public’s business. In the current political turmoil about raising the national debt limit, I do not see such leaders.
In the Fall of 1959 (the first semester of my junior year), I attended American University in Washington, D.C. Thirty-one other students from all across the U.S. and I were in a unit of AU’s Washington Semester Seminar led by Professor Louis Loeb.
The objective of the Semester was to give us insight into our national government in action. We did this in various ways.
The Seminar was the heart of the Semester. We had meetings with officials who worked in or with the national government, assigned readings and interpretation sessions with Professor Loeb while we also maintained a journal of our activities and took examinations. All of this was arranged around the following subjects: (a) Congress and its staff agencies; (b) political parties, pressure groups and opinion; (c) the President and the executive agencies; (d) international relations; and (e) the judiciary.
The second major part of the Semester was conducting an independent research project and writing a report on the results. Mine was “A Study and Analyses of Political Interest Group Participation in House Un-American Activities Committee’s Contempt of Congress Cases, 1945-1956.” I chose this topic because I detested that Committee, on the one hand, and endorsed the philosophy of one of its major opponents in such cases, the American Civil Liberties Union, on the other hand. In addition to doing a lot of general reading regarding the Committee and the theory and practice of political interest groups, I spent a lot of time in the Supreme Court Library reading the records in such contempt cases that reached the Court. I compared the briefs of the parties with those of the amici curiae (friends of the court) and the Court’s decisions.
In three of the four contempt of Congress cases that reached the Supreme Court in this period, the decisions were favorable to the views expressed by these interest groups even though the actual points in the amici briefs did not make it into the Court’s opinions. It was impossible to determine what effects, if any, their briefs had on the thinking of the justices or the results in the cases. The decisions in these cases did have some effect on the Committee’s giving notice to witnesses of the relevance of the Committee’s questions and its rejection of the witnesses’ objections. It was possible, at least in theory, to see how such participation might affect the interest groups themselves, but specific evidence of such effects could not be found.
In order to obtain additional hours of credit that semester, we had to take courses at night at AU’s downtown campus, just west of the White House. I took three such courses: American history, early political theory and the economics of public finance.
This semester was the first time I had ever lived in a major city. I thoroughly enjoyed going to museums, concerts and plays and seeing the beautiful and historic buildings of the city. I became acquainted with the general counsel of the Atomic Energy Commission, who was a musical composer in his spare time. I vividly recall going to a vocal recital in the living room of the old mansion that became the Phillips Gallery for performance of my friend’s songs with lyrics from the poetry of e. e. cummings.
At the end of the semester AU awarded me a scholarship for summer school at Harvard University. I, however, declined the offer in order to be the assistant to the Chairman of the Democratic Party of Iowa under Grinnell College’s Program in Practical Politics.
 See Post: Encounters with Candidates JFK and LBJ (April 16, 2011).
In the modern era, the principal U.N. agency responsible for refugees is the Office of the United Nations High Commissioner for Refugees (UNHCR) in Geneva, Switzerland.
The UNHCR was established by U.N. General Assembly Resolution 28(v), December 14, 1950 (after the Universal Declaration of Human Rights, but before the signing of Convention Relating to Status of Refugees). This Resolution adopted the Statute for the UNHCR that charges the agency with “providing international protection . . . to refugees . . . and . . . seeking permanent solutions for the problem of refugees by assisting Governments and . . . private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.” The Statute also contained a definition of “refugee” that was similar to the one set forth in the subsequent Convention Relating to the Status of Refugees. This definition states a “refugee” is
“Any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reason other than personal convenience, is unwilling to avail himself of the protection of that country . . . .”
To fulfill this mandate UNHCR “strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, and to return home voluntarily. By assisting refugees to return to their own country or to settle permanently in another country, UNHCR also seeks lasting solutions to their plight.” It also publishes a handbook on procedures and criteria for determining refugee status and guidelines on common issues that have arisen in such determinations.
The UNHCR now is concerned with refugees, 80% of whom are in poorer, developing countries, and certain other individuals in the world. As of January 2010, it was concerned with the welfare of the following people:
On July 8, 2011, the U.S. Court of Appeals for the District of Columbia Circuit decided an important case under the Alien Tort Statute (ATS) that is headed for the U.S. Supreme Court.
In Doe v. Exxon Mobil Corp., the D.C. Circuit held, 2 to 1, that corporations may be held liable for aiding and abetting human rights violations under the ATS. The plaintiffs were Indonesian villagers who accused Exxon Mobil of aiding and abetting murder, torture and rape by Indonesian soldiers acting under the corporation’s direction to protect its natural-gas operations in that country.
Late last year the U.S. Court of Appeals for the Second Circuit in New York City reached the opposite conclusion, 2 to 1, in Kiobel v. Royal Dutch Petroleum Co., another ATS case, this one by Nigerians against Royal Dutch Petroleum Co. for alleged complicity in crimes against humanity.
In Kiobel, the plaintiffs already have asked the U.S. Supreme Court for review of that case, and it is likely that Exxon Mobil will do as well in the other case. Since an important factor in the Supreme Court’s decision to grant such review (granting the writ of certiorari) is a split in decisions by the courts of appeal on important issues of federal law, the Court, in my opinion, is highly likely to grant such review in both cases and to consider them on the merits next Term (October 2011-September 2012).
The ATS provides that the U.S. district courts have “original jurisdiction of any civil action by an alien [non-U.S. citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.”
In future posts, I will review (a) the adoption of the ATS in 1789 and its use through 1979; (b) the interpretation of the ATS by the Supreme Court in 2004; (c) the use of the ATS by the lower federal courts since 1980; (d) the issue of aiding and abetting in ATS cases; and (e) the issue of corporate liability in ATS cases.
Doe v. Exxon Mobil Corp., No. 09-7125 (D.C. Cir. July 8, 2011), http://www.cadc.uscourts.gov/internet/opinions.nsf; Reuters, Exxon to Face Lawsuit Over Rights Violations in Indonesia, N.Y. Times (July 8, 2011); Kendall, Exxon Hit by Reversal in Human-Rights Case, W.S.J. (July 9, 2011).
Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), pet. for reh’g denied, 642 F.3d 268 (2d Cir. 2011), pet. for reh’g en banc denied, 642 F.3d 379 (2d Cir. 2011), pet. for cert. filed (No. 10-1491 June 6, 2011).
 U.S. Sup. Ct. Rule 10 (a): “A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conﬂict with the decision of another United States court of appeals on the same important matter. . . .”
As previously indicated, the history of refugees and asylum, in my opinion, may be divided into two major periods: the pre-modern era (before the adoption of the Universal Declaration of Human Rights in 1948) and the modern era (after that adoption). We now examine that Declaration and its implementation in the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees.
Universal Declaration of Human Rights
The United Nations Charter, which entered into force on October 24, 1945, created the Economic and Social Council in Chapter X. Under Article 68 of the Charter, this Council was to establish a commission for the promotion of human rights.
In early 1946 this Council created a committee to make recommendations on the structure and functions of such a commission. Eleanor Roosevelt, the widow of U.S. President Franklin D. Roosevelt, and eight others were appointed to this committee, and she was elected its chair. It recommended that the first project of the new commission should be the writing a bill of human rights. Thereafter, in June 1946, the Council created the U.N. Human Rights Commission and directed it to prepare an international bill of human rights.
In January 1947 the Human Rights Commission held its first meeting and elected Eleanor Roosevelt as its chair.
At the Commission’s June 1947 meeting Great Britain proposed preparing a covenant or treaty of human rights, rather than a declaration full of high-sounding generalities. The U.S., however, favored a broad declaration followed by treaties. The U.S. position appears to have been a strategy to avoid the U.S. Senate ratification process that constitutionally was necessary for ratification of treaties, but was not required for U.S. voting in the U.N. General Assembly. Remember that President Truman was heading into the 1948 presidential election and did not want to provoke a Senate vote he might lose. In any event, the Commission decided to work on both a declaration and covenants.
In December 1948 (only one month after Truman won the presidential election), the U.N. General Assembly adopted the Universal Declaration: 48 in favor (including the U.S.); 0 against; 8 abstentions (the USSR and its allies, South Africa and Saudi Arabia); and 2 absences.
The Declaration had two important provisions relevant to refugees and asylum. Its Article 13(2) stated, “Everyone has the right to leave any country, including his own, and to return to his country.” Article 14(1) went on to say, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” (Emphasis added.)
Even though the Declaration was not a treaty that created legal obligations for subscribing states, its declaring that every individual human being had a right to asylum was a historic departure from the pre-modern era where asylum was a matter of discretion for the protecting state. This provision also set an objective for the treaty on refugees then being formulated. These provisions of the Universal Declaration, in my opinion, also constitute an atonement for the failure of the civilized world in the 1930’s to protect German Jewish refugees.
In any event, ever since its adoption, the Universal Declaration has set the agenda for the subsequent development of international human rights treaties. The Declaration also continues to act as an inspirational and aspirational document throughout the world, as I discovered on my first visit to El Salvador in April 1989.
Convention Relating to the Status of Refugees
On July 2, 1951, an international conference in Geneva, Switzerland concluded with the signing of the Convention Relating to the Status of Refugees by the conference attendees and the opening of the treaty for accession or ratification by nation states. By its Article 43(1) it was to enter into force or become a binding treaty 90 days after the sixth state had acceded or ratified the treaty. That happened on April 22, 1954.
Its preamble noted that the U.N. had “manifested its profound concern for refugees and endeavored to assure refugees the widest possible exercise of . . . fundamental rights and freedoms.” The preamble also stated, “the grant of asylum may place unduly heavy burdens on certain countries, and . . . a satisfactory solution of a problem . . . [of] international scope and nature cannot therefore be achieved without international cooperation.”
This treaty adopted the following definition of “refugee” in Article 1(A)(2) as any person who:
“[As a result of events occurring before 1 January 1951] and owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The bracketed phrase [“As a result of events occurring before 1 January 1951”] was the provision that limited the coverage of the Convention to the problems still being faced by many World War II refugees still scattered across Europe. This limiting phrase was eliminated in the Protocol Relating to the Status of Refugees discussed below.
Excluded from the definition of “refugee” in Article 1(F) was “any person . . . [who] (a) . . . has committed a crime against peace, a war crime or a crime against humanity . . . ; (b) . . . has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [and] (c) . . . has been guilty of acts contrary to the purposes and principles of the [U.N.].”
The Convention granted refugees certain rights within a country of refuge as well as imposing on them certain obligations. The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their “illegal entry or presence.” This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.
Importantly, the Convention contains various safeguards against the expulsion of refugees. Its Article 33(1) states, “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Protocol Relating to the Status of Refugees
By 1966, it had become apparent that new refugee situations had arisen since the Refugee Convention had been adopted and that all refugees should enjoy equal status. As a result, a new treaty was prepared to eliminate the previously mentioned limitation of the Convention to those refugees created by pre-1951 events. This was the Protocol Relating to the Status of Refugees that went into force on October 4, 1967.
Parties to the Convention or Protocol
As of April 1, 2011, there were 145 nation states (and the Holy See) that were parties to the Convention and Protocol or the latter, including the U.S. That represents 76.2% of the U.N. members (plus the Holy See).
In subsequent posts we will review (a) the work of the principal U.N. agency concerned with refugees (the Office of the United Nations High Commissioner for Refugees); (b) U.S. law and procedures for refugees; and (c) U.S. law and procedures for asylum.
 See Post: Refugees and Asylum Law: The Pre-Modern Era (July 7, 2011).
See Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House 2002)(fascinating history of the development of the Universal Declaration).
 UNHCR, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol,http://www.unhcr.org/3b73b0d63.html. In addition Madagascar and St. Kitts & Nevis are parties only to the Convention with its now outmoded temporal limitations. (Id.)
The history of refugee and asylum law, in my opinion, may be divided into two major periods: (a) the pre-modern era before the adoption of the Universal Declaration of Human Rights in 1948 and (b) the modern era starting with that 1948 adoption. There are four major points from this earlier period that have impressed me.
First, there have been instances when individual states granted protection or asylum to people of another state, but the granting of such protection was always within the discretion or grace of the potential protecting state. Whether or not this was done was influenced by a multitude of circumstances. Correspondingly the individual fleeing his or her own country had no legal right to claim protection from another state. An interesting example of this type of asylum happened in 615 CE, when Mohammad requested his cousin and other followers to leave Mecca and seek refuge in Abyssinia or Ethiopia to escape persecution by Mecca’s leading tribe. This is known as the First Hijra (Migration) of Muslims. At the time, the King of Abyssinia was a Christian and known for his justice and respect for human beings. Responding to a letter from Mohammad, the King said he understood that Mohammad respected Jesus and, therefore, granted asylum to the Muslims.
Second, as we have just seen, religious belief sometimes has motivated a government to grant asylum in this earlier period. In addition, religious bodies and individuals often call upon their members and fellow believers to be hospitable to outsiders such as those fleeing persecution. In Judaism and Christianity, for example, there are numerous Biblical texts to this effect. In the Hebrew Bible, the people are told, “Do no mistreat an alien or oppress him for you were aliens in Egypt.” (Exodus 222:21.) Similarly, “You are to have the same law for the alien and for the native born.” (Leviticus 24:22.) In the New Testament, Jesus when asked what the greatest commandment was, said, “Love the Lord your God with all you heart and with all your soul and with all your mind. This is the first and greatest commandment. And the second is like it: Love your neighbor as yourself.” (Matthew 22:37-39.) Similarly Arabic traditions and customs have served as a solid foundation for protecting human beings and preserving their dignity. These include “istijara” (plea for protection), “ijara” (granting protection) and “iwaa” (sheltering). The Islamic Shari’a further consolidated the humanitarian principles of brotherhood, equality and tolerance among human beings. Relieving suffering and assisting, sheltering, and granting safety to the needy, even enemies, are an integral part of Islamic Shari’a. In fact, Islamic Shari’a addressed the issue of asylum explicitly and in detail, and guaranteed safety, dignity and care for the “musta’men” (asylum-seeker). Moreover, the return, or refoulement, of the “musta’men” was prohibited by virtue of Shari’a.
Third, after World War I, the Covenant of the League of Nations did not have any explicit provision regarding refugees. The closest it came was its Article 25, which states, “The Members of the League agree to encourage and promote the establishment and co-operation of duly authorised [sic] voluntary national Red Cross organisations [sic] having as purposes the improvement of health, the prevention of disease and the mitigation of suffering throughout the world.” There also were various treaties regarding refugees in the 1920s and 1930s, but they did not grant legal rights to asylum.Fourth, German persecution of the Jews in the 1930s showed the weaknesses of this discretionary approach to asylum. In 1933 the Nazis took over control of the German government and fired Jews from the civil service and sponsored boycotts of Jewish-owned businesses. Germany also started an official encouragement of German Jewish emigration, and in September 1935 Germany’s Nuremberg Laws cancelled German citizenship for Jews. By the end of 1937 450,000 German Jews had left the country. In March of 1938 German annexed Austria (das Anschluss) and thereby brought the 200,000 Austrian Jews under German laws, including the Nuremberg Laws.
Several days later U.S. President Franklin D. Roosevelt decided to call an international conference to facilitate the emigration of Jews from Germany and Austria and to establish an international organization to work towards an overall solution to this problem. That July the conference was held in Evian, France. Thirty-two countries attended and expressed sympathy for the refugees. With one exception, however, no country agreed to take additional Jewish refugees. The exception was the Dominican Republic, and it did so because its dictator, Trujillo, wanted more white people in his country. The Conference also created the Intergovernmental Committee on Refugees to “approach the governments of the countries of refuge with a view to developing opportunities for permanent settlement.” It also was to seek German cooperation in establishing “conditions of orderly emigration.” This Committee, however, never received the necessary authority or support from its members and, therefore, failed to accomplish anything. After the conference, Hitler said, “It is a shameful spectacle to see how the whole democratic world is oozing sympathy for the poor tormented Jewish people, but remains hard hearted and obdurate when it comes to helping them . . . .” Moreover, the failure of the Conference to do anything about the German Jews was seen as an encouragement for Germany’s increasing persecution of the Jews, including Kristallnachtin October 1938 and the Holocaust itself through the end of World War II in 1945.
 I have not studied what I can the pre-modern era in great depth and especially invite comments and critiques of this analysis.
 Religious beliefs motivated most, if not all, of those people and congregations that were involved in the Sanctuary Movement in the 1980’s to provide safe space to Salvadorans and Guatemalans fleeing their civil wars. See Post: The Sanctuary Movement Case (May 22, 2011).
Over the last several weeks there have been important developments regarding the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC).
As we already have seen, the ICTR is winding down to complete its work by July 1, 2012, and one of the ways it is doing so is referring some cases to national judicial systems. On June 26th, the ICTR referred one of its cases to the Rwandan national courts, the first time it had ever done so. It did so because there was evidence that Rwanda had made material changes to its laws and now had the capacity and intention to prosecute such cases in accordance with international standards of fair trial and human rights. The ICTR suggested that the African Commission on Human and Peoples Rights monitor the proceedings and notify the ICTR of any problems for its possible revocation of the referral.
On June 24th the ICTR announced the conviction of six defendants in the Butare case for genocide and related crimes. They received sentences from 25 years to life.
Finally the recently arrested Bernard Munyagishari made his initial appearance before the ICTR and pleaded not guilty to charges of genocide, conspiracy to commit genocide and crimes against humanity (murder and rape) of Tutsi women.
On June 29th the U.N. Security Council unanimously adopted Resolution 1993 to extend the terms of office of the ICTY judges until December 31, 2012. It did so to facilitate the ICTY’s completing the trial of all of its pending prosecutions. The resolution also called for all States, especially the States of the former Yugoslavia, to intensify cooperation with, and assistance to, the ICTY, including the arrest of Goran Hadzic.
On July 4th Ratko Mladic made his initial appearance before the ICTY and refused to enter pleas because he said he was not represented by lawyers of his choice. After he had repeatedly and loudly interrupted the proceedings, the judges ordered him removed from the courtroom and thereafter entered pleas of not guilty on his behalf. He faces charges of genocide and war crimes.
There have been significant developments regarding the Libyan, Sudan (Darfur) and Kenyan investigations and prosecutions by the ICC. Many of these developments involve the ICC’s tense relations with the African Union (AU) as will be seen below.
Libya. As previously reported, the ICC on June 27th authorized the issuance of arrest warrants for Colonel Muammar Gadhafi and two others for crimes against humanity in Libya since February 15, 2011. The ICC Prosecutor has emphasized the importance and difficulty of making the actual arrests of these three individuals.
On July 2nd the execution of these ICC arrest warrants was made even more difficult by a resolution adopted by the AU. It recommended that its 53 member-states “not cooperate in the execution of the arrest warrant” for Colonel Gadhafi. This warrant, the AU said, “seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya which will also address, in a mutually-reinforcing way, issues relating to impunity and reconciliation.” This decision increases the chances for Gadhafi to avoid ICC prosecution by obtaining refuge in another African country. The AU also requested the U.N. Security Council to exercise its authority under Article 16 of the ICC’s Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Libya for one year.
This AU resolution conflicts with the obligations of the 32 African states that are parties to the ICC’s Rome Statute. Its Article 86 obligates them to “cooperate fully with the Court in its investigation and prosecution of crimes within [its] jurisdiction.”
Sudan. Pursuant to U.N. Security Council referral, the ICC Prosecutor has been conducting investigations and prosecutions regarding the Sudan (Darfur). One of the prosecutions has been of the Sudanese President Bashir.
The just noted inherent difficulties of enforcing ICC arrest warrants has also been in the news with respect to the recent trip to China by President Bashir. His earlier trips to other African countries (Chad, Kenya and Djibouti) that are ICC States Parties have been defended by the AU as consistent with these countries’ obligations under the AU’s Constitutive Act and Article 98 of the Rome Statute as well as their efforts to promote peace and stability in their regions.
In the meantime, violence continues in Sudan. The AU Summit issued nice-sounding words about the need for a peaceful transition in Sudan. This included a more general request to the U.N. Security Council to defer all ICC investigations and prosecutions regarding Sudan for one year. 
Kenya. As previously reported, the ICC Pre-Trial Chamber on March 31, 2010, authorized the Prosecutor to commence an investigation of post-election violence in Kenya in 2007-2008, and on March 8, 2011, that Chamber authorized the issuance of six arrest summonses.
At its recent Summit, the AU stressed the need to pursue all efforts to have the U.N. Security Council use its authority under Article 16 of the Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Kenya for one year. Such a deferral, the AU stated, would enable an investigation and prosecution by a reformed Kenyan judiciary in accordance with the ICC’s principle of complementarity. 
U.N. Security Council.
As we have just seen, all of the current ICC investigations and prosecutions come from Africa, two upon referrals by the U.N. Security Council and all of which potentially are subject to deferral by the Council. Thus, it is not surprising that the AU at its recent Summit meeting re-emphasized its desire for reform of the U.N. Security Council in order “to correct . . . the historical injustice done to the [African] continent, which continues to be unrepresented in the permanent category and under-represented in the non-permanent category of the . . . [Council].”
To this end, the AU reaffirmed its Ezulwini Consensus on proposed U.N. reforms. With respect to the Security Council, this Consensus called for Africa to have two permanent and five non-permanent members on a reformed Council as chosen by the AU.
 Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).
 ICTR Press Release, Case of Jean Uwinkindi Referred for Trial to the Republic of Rwanda (June 28, 2011); Reuters, U.N. Court Refers Genocide Case to Rwanda, N.Y. Times (June 28, 2011). Uwinkindi is a former Pentecostal pastor who has been accused of genocide, conspiracy to commit genocide and crimes against humanity (extermination) against the Tutsi people. (Id.)
 ICTR Press Release, Butare Judgment Released (June 24, 2011)
 ICTR Press Release, Bernard Munyagishari Pleads Not Guilty (June 20, 2011).
 U.N. Security Council Press Release, Terms of 17 Judges with [ICTY] Extended (June 29, 2011); ICTY Press Release, Security Council extends Terms of ICTY Judges and Calls for Increased Cooperation with the Tribunal (June 30, 2011).
 Reuters, Mladic to ‘boycott war crimes hearing,’ Guardian (July 4, 2011); Simons & Cowell, Hague Judge Orders Mladic Removed From Courtroom, N.Y. Times (July 4, 2011). See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011); Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).
 See Post: The International Criminal Court: Introduction (April 28, 2011); Post: The International Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011); Post: The International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Stephen, Muammar Gaddafi war crimes files revealed, Guardian (June 18, 2011); Fahim, Claims of Wartime Rapes Unsettle and Divide Libyans, N.Y. Times (June 19, 2011).
 Associated Press, AU Members Agree to Disregard ICC Gadhafi Warrant, N.Y. Times (July 2, 2011); Associated Press, African Union calls on member states to disregard ICC arrest warrant against Libya’s Gadhafi, Wash. Post (July 2, 2011); Amann, AU v. ICC, yet another round (July 3, 2011), http://intlawgrrls.blogspot.com/2011/07/au-v-icc-yet-another-round.html; AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news. Less than three weeks earlier the AU told the U.N. Security Council that the AU will not hide from its responsibility to help resolve the Libyan conflict. (U.N. Security Council, Press Release: African Union Will Never Hide from Responsibilities in Resolving Libyan Conflict (June 15, 2011).
 See Post: The International Criminal Court: Introduction (April 28, 2011); Post: The International Criminal Court’s Investigations and Prosecutions (April 28, 2011).
 Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Higgins, Oil interests tie China to Sudan leader Bashir, even as he faces genocide charges, Wash. Post (June 22, 2011); Associated Press, Embattled Sudan president visits chief diplomatic backer, China, Wash. Post (June 29, 2011); Wines, Sudanese Leader Is Welcomed in Visit to China (June 29, 2011); Associated Press, UN: China Should Have Arrested Al-Bashir, N.Y. Times (June 30, 2011) (U.N. High Commissioner for Human Rights).
 Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Gettleman, Sudan to Pull Troops From Abyei and Allow Peacekeepers, N.Y. Times (June 20, 2011); Kron, Ethnic Killings by Army Reported in Sudanese Mountains, N.Y. Times (June 20, 2011); Gettleman, As Secesssion Nears, Sudan Steps Up Drive to Stop Rebels, N.Y. Times (June 20, 2011); Bilefsky, U.N. Approves Troop Deployment in Sudan, N.Y. Times (June 27, 2011); Gettleman, Sudan Signs Pact With Opposition Forces, N.Y. Times (June 28, 2011); Reuters, Two Sudans to Create a Buffer Zone, N.Y. Times (June 29, 2011); Kristof, Yet Again in Sudan (June 29, 2011)(Sudanese government conducting vicious campaign of ethnic cleansing, murder and rape in Nuba Mountains); Gettleman, Another Area Girds for Revolt as Sudan Approaches a Split, N.Y. Times (June 30, 2011); Reuters, Sudan President [Bashir] vows to Fight, N.Y. Times (July 1, 2011); Gettleman, Sudanese Struggle to Survive Endless Bombings Aimed to Quell Rebels, N.Y. Times (July 3, 2011); Fagotto, Sudan partition leaves rebel Nuba region feeling betrayed, Guardian (July 3, 2011); Reuters, North and South Sudan Delay Talks Until After Split, N.Y. Times (July 4, 2011); Associated Press, Sudan President to Speak at S. Sudan Independence, N.Y. times (July 4, 2011).
Another outgrowth of my eight years of teaching the international human rights law course at the University of Minnesota Law School was an expanding knowledge of, and interest in, international criminal justice, in general, and the International Criminal Court (ICC), in particular.
The general topic of international criminal justice covers the efforts of national and international courts to impose criminal penalties on those who are convicted of committing the worst crimes: genocide, crimes against humanity and war crimes. My interest in this topic is shown by the 14 posts on this topic to date. Similarly my interest in the ICC is demonstrated by the 18 posts on this topic to date.
I have put this interest into action in several ways.
I have served as the Provisional Organizer of the Minnesota Alliance for the ICC, which is a member of the American Non-Governmental Organizations Coalition for the ICC (AMICC). This Coalition is committed to achieving through education, information, promotion and an aroused public opinion full U.S. support for the ICC and the earliest possible U.S. ratification of the Court’s Rome Statute. Some of my papers about the ICC and the Rome Statute are posted on the AMICC website.
Professor Barbara Frey and I assisted the Human Rights Committee of the Minnesota State Bar Association (MSBA) in developing and presenting a resolution on the ICC that was adopted by the Association’s governing body in September 2010. That resolution stated that the MSBA “urges the [U.S.] Government to take steps towards ratification of the Rome Statute by expanding and broadening [U.S.] interaction with the [ICC], including cooperation with the Court’s investigations and proceedings. The MSBA also calls on the [U.S.] Government to participate in all future sessions of the [ICC’s] governing body, the Assembly of States Parties.”
In September 2010 I also presented a paper about the U.S.’ relationship with the ICC at a symposium at the University of Minnesota Law School. The true highlight of the symposium was the appearance of the ICC’s Prosecutor, Luis Moreno-Ocampo. He said that when he was chosen as the Prosecutor in 2003, he told its judges that the best situation for the Court would be to have no cases. That would mean that there were no serious crimes in the world or that national courts by themselves were addressing these crimes. At the symposium he reviewed the history of the Court and its current investigations and prosecutions.
In March 2011 I participated in a debate at a meeting at the University of Minnesota Law School that was hosted by the Federalist Society, Law School Democrats and InternationalLaw Society. The issue was whether the U.S. should become a member of the ICC.  The key points of that debate were the following:
Professor Eugene Kontorovich of Northwestern University School of Law asserted that U.S. membership in the ICC would be unconstitutional. U.S. membership would expose U.S. citizens to trials without the structures of an Article III court. In such trials defendants would not have certain procedural rights guaranteed by the Constitution, such as the right to a grand jury. He based his constitutional argument on the U.S. refusal in the early 19th century to join international slave-trading courts or commissions organized by Great Britain.
Professor Kontorovich also argued that the ICC was a failure: the sluggishness of the trial process, the failure to convict any defendant, and the absence of empirical research demonstrating meaningful deterrent effects. The ICC, he said, could actually extend conflict by inhibiting peace deals when militants or regimes see international criminal prosecution as unavoidable in spite of ceasing or surrendering. He was also critical of the recent aggression amendment to the Rome Statute.
I responded that the U.S. Constitution does not bar U.S. membership in the ICC. I referred to the U.S. Supreme Court’s decision in Missouri v. Holland that endorsed a broad interpretation of the President’s constitutional treaty power subject to the U.S. Senate’s advice and consent. I said I had not had an opportunity to review Professor Kontorovich’s early 19th century sources for his constitutional argument, but in doing so anyone should have at least two overriding questions in mind: (a) was U.S. resistance to the slave-trading courts due to Southerners’ desire to preserve slavery and (b) was U.S. resistance to such courts due to a desire to avoid entanglement with Great Britain so soon after our Revolutionary War and the War of 1812.
I then argued the U.S. should ratify the Rome Statute for the following additional reasons: (1) the Court will prosecute and punish those guilty of the most serious crime; (2) the Court provides deterrence from such crimes; (3) the Court promulgates the truth about these crimes; (4) the Court assists victims; and (5) the Court is active and appears to be permanent, making U.S. involvement pragmatic.
International criminal justice needs the support of all citizens of the world. Going forward, the ICC is the most important institution for holding violators of international rights accountable for their actions.
 See Post: Teaching the International Human Rights Law Course (July 1, 2011).
 See Post: International Criminal Justice: Introduction (April 26, 2011).
 These posts can be accessed by double-clicking on “International Criminal Justice” in the Tag Cloud (dwkcommentariestags) to the right of this post.
 These posts can be accessed by double-clicking on “International Criminal Court” in the Tag Cloud (dwkcommentariestags) to the right of this post.
 Many of the points of the symposium paper have been set forth in other postings to this blog. Post: The International Criminal Court and the Clinton Administration (May 11, 2011); Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: The Crime of Aggression (May 15, 2011).
 Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals, 158 U. Penn. L. Rev. 39 (2009).
 After the debate, I discovered that a Stanford University Law School professor had written a rebuttal to Professor Kontorovich’s interpretation of the U.S. refusal to join the British-led international courts or commissions with respect to slave trading. In essence, she argued that in the early 19th century slave trading was not against international law. Instead, only Great Britain and the U.S. had recently banned such activities. Thus, the proposed international courts or commissions potentially would be trying U.S. citizens under U.S. law. That was the source, and a legitimate one, for U.S. refusal to join such tribunals at that time. (Martinez, International Courts and the U.S. Constitution: Re-Examining the History (2011), http://www.pennumbra.com/issues/article.php?aid=306.