Politics – Page 151 – dwkcommentaries

“Christians of the Holy Land” on CBS-TV’s 60 Minutes

As noted in a prior post, on April 22nd CBS-TV’s 60 Minutes aired the report “Christians of the Holy Land.” It reported that Christians have been leaving Palestine in large numbers for years and that its Christian population is now less than two percent. The program explored differing explanations for this decline.

Rev. Dr. Mitri Raheb, the Pastor of Evangelical Lutheran Christmas Church, said that Palestinian Christians, once a powerful minority, are becoming the invisible people, squeezed between a growing Muslim majority and burgeoning Israeli settlements. “If you see what’s happening in the West Bank, you will find that the West Bank is becoming more and more like a piece of Swiss cheese where Israel gets the cheese that is the land, the water resources, the archaeological sites. And the Palestinians are pushed in the holes behind the walls.”

The Israeli Ambassador to the U.S., Michael Oren, however, vigorously disagreed. He asserted that the Christians in Palestine were being persecuted by Islamic extremism and that the Israeli government did not bother to respond to a 2009 Christian document, Kairos, because it allegedly made inflammatory accusations that Israel had crimes historically associated with anti-Semitism.

Rev. Raheb and others rejected the Ambassador’s assertion that Islamic extremism was the basic cause of the Christian exodus. Raheb said he was a member of the Christian group that wrote and published Kairos: A Moment of truth: A word of faith, hope and love from the heart of Palestinian suffering. This document, he said, criticized Islamic extremism and advocated non-violent resistance to the Israeli occupation which they called a sin against God. This document was endorsed by the leaders of 13 Christian denominations, including Greek Orthodox, Roman Catholic, Lutheran and Anglican.

On May 6th Rev. Raheb will be preaching at the 10:30 a.m. (CDT) worship service at Minneapolis’ Westminster Presbyterian Church. This will be the concluding event in its Palestinian Arts Festival.

The Kairos Document

The 60 Minutes reference to the Kairos document calls for a more complete account of its contents. It is available on the web and opens with descriptions of what it calls “The reality on the ground: ” “Israeli occupation of Palestinian territories, deprivation of our freedom.” Here are the specifics of that accusation:

“1.1.1 The separation wall erected on Palestinian territory, a large part of which has been confiscated for this purpose, has turned our towns and villages into prisons, separating them from one another, making them dispersed and divided cantons. Gaza, especially after the cruel war Israel launched against it during December 2008 and January 2009, continues to live in inhuman conditions, under permanent blockade and cut off from the other Palestinian territories.”
“1.1.2 Israeli settlements ravage our land in the name of God and in the name of force, controlling our natural resources, including water and agricultural land, thus depriving hundreds of thousands of Palestinians, and constituting an obstacle to any political solution.”
“1.1.3 Reality is the daily humiliation to which we are subjected at the military checkpoints, as we make our way to jobs, schools or hospitals.”
“1.1.4 Reality is the separation between members of the same family, making family life impossible for thousands of Palestinians, especially where one of the spouses does not have an Israeli identity card.”
“1.1.5 Religious liberty is severely restricted; the freedom of access to the holy places is denied under the pretext of security. Jerusalem and its holy places are out of bounds for many Christians and Muslims from the West Bank and the Gaza strip. Even Jerusalemites face restrictions during the religious feasts. Some of our Arab clergy are regularly barred from entering Jerusalem.”
“1.1.6 Refugees are also part of our reality. Most of them are still living in camps under difficult circumstances. They have been waiting for their right of return, generation after generation. What will be their fate?”
“1.1.7 And the prisoners? The thousands of prisoners languishing in Israeli prisons are part of our reality. The Israelis move heaven and earth to gain the release of one prisoner, and those thousands of Palestinian prisoners, when will they have their freedom?”
“1.1.8 Jerusalem is the heart of our reality. It is, at the same time, symbol of peace and sign of conflict. While the separation wall divides Palestinian neighbourhoods, Jerusalem continues to be emptied of its Palestinian citizens, Christians and Muslims. Their identity cards are confiscated, which means the loss of their right to reside in Jerusalem. Their homes are demolished or expropriated. Jerusalem, city of reconciliation, has become a city of discrimination and exclusion, a source of struggle rather than peace.”
“1.2 Also part of this reality is the Israeli disregard of international law and international resolutions, as well as the paralysis of the Arab world and the international community in the face of this contempt. Human rights are violated and despite the various reports of local and international human rights’ organizations, the injustice continues.”

The Kairos document concludes with these appeals to the peoples of Palestine and beyond:

“8. Finally, we address an appeal to the religious and spiritual leaders, Jewish and Muslim, with whom we share the same vision that every human being is created by God and has been given equal dignity. Hence the obligation for each of us to defend the oppressed and the dignity God has bestowed on them. Let us together try to rise up above the political positions that have failed so far and continue to lead us on the path of failure and suffering.”

“9.1 This is a call to see the face of God in each one of God’s creatures and overcome the barriers of fear or race in order to establish a constructive dialogue and not remain within the cycle of never-ending manoeuvres [sic] that aim to keep the situation as it is. Our appeal is to reach a common vision, built on equality and sharing, not on superiority, negation of the other or aggression, using the pretext of fear and security. We say that love is possible and mutual trust is possible. Thus, peace is possible and definitive reconciliation also. Thus, justice and security will be attained for all.”

“9.3 Trying to make the state a religious state, Jewish or Islamic, suffocates the state, confines it within narrow limits, and transforms it into a state that practices discrimination and exclusion, preferring one citizen over another. We appeal to both religious Jews and Muslims: let the state be a state for all its citizens, with a vision constructed on respect for religion but also equality, justice, liberty and respect for pluralism and not on domination by a religion or a numerical majority.”

“9.4 To the leaders of Palestine we say that current divisions weaken all of us and cause more sufferings. Nothing can justify these divisions. For the good of the people, which must outweigh that of the political parties, an end must be put to division. We appeal to the international community to lend its support towards this union and to respect the will of the Palestinian people as expressed freely.”

“10. In the absence of all hope, we cry out our cry of hope. We believe in God, good and just. We believe that God’s goodness will finally triumph over the evil of hate and of death that still persist in our land. We will see here ‘a new land’ and ‘a new human being,’ capable of rising up in the spirit to love each one of his or her brothers and sisters.”

“Healing the Heart of Democracy”

Parker Palmer @ Westminster Town Hall Forum

On April 19th Parker Palmer spoke on “Healing the Heart of Democracy” at Minneapolis’ Westminster Town Hall Forum. This Forum was co-sponsored by United Theological Seminary of the Twin Cities. A video of the Forum is available on the web.

The talk was drawn from his 2001 book, Healing the Heart of Democracy: The Courage to Create a Politics Worthy of the Human Spirit. “Heart” for this purpose means the core of the human self and includes all human faculties, not just emotions. Palmer then identified five “habits of the heart” (a phrase coined by Alexis de Tocqueville in the early 19th century) that help make democracy possible.

The first such habit was an understanding that we are all in this together. All of us need to embrace the fact that we are dependent upon, and accountable to, one another, including the stranger.

The second habit was an appreciation of the value of “otherness.” Although we are interdependent with everyone, we spend most of our lives in “tribes” or lifestyle enclaves. Thus, when we encounter people who are not part of our “tribe,” we need to practice the ancient tradition of hospitality to the stranger and see strangers as opportunities to learn about other aspects of human life, as ambassadors from different circumstances.

An ability to hold tension in life-giving ways was the third habit of the heart Palmer described. Our lives are filled with contradictions that we can use to expand our hearts and open our lives to new understandings of ourselves and our world.

The fourth habit was developing and using a sense of our own personal voice and agency. We need to be participants, not spectators in the issues of our day. Speak out and act out your own version of the truth while checking and correcting it against the truths of others.

Palmer’s final habit of the heart was developing a capacity to create community. Communities do not come ready-made. We must create community in the places where we live and work.

In the U.S. today, however, Palmer asserted, we are engaged in the politics of the broken-hearted. Sometimes this erupts in rage and violence. Violence happens when people do not know what else to do with their suffering. Other times the broken heart can cause new capacity for change.

Palmer concluded his remarks by saying he will always put his money on hope. Hope always gives him something to do.

Parker Palmer is a writer, activist and founder of the Center for Courage and Renewal. He is the author of nine books. He holds a B.A. degree from Minnesota’s Carleton College and a Ph.D. from the University of California at Berkeley.

Netherlands Court Awards Monetary Damages to Palestinian for Libyan Torture

This March a court in the Netherlands awarded 1 million euros to a Palestinian plaintiff against 12 Libyan officials for torture and inhumane treatment over eight years in a Libyan prison.

The plaintiff, Dr. Ashraf al-Hajuji, who now lives in the Netherlands, along with five Bulgarian nurses had been charged in Libya in 2000 with deliberately infecting over 400 children with HIV-AIDS. In 2004 they were convicted and sentenced to death by a firing squad. A year later the convictions were overturned and a new trial was ordered after Bulgaria agreed to establish a fund for the families of the infected children. In December 2006, however, Dr. Hajuji and the nurses were again convicted and sentenced to death, but in July 2007 their sentences were commuted to life imprisonment after the children’s relatives agreed to accept compensation of $1 million per child. In 2007 the doctor and nurses were pardoned and released after French President Sarkozy negotiated with Col. Muammar Gaddafi . Gaddafi admitted they had suffered horrible torture in Libyan prisons.

This may be the first time another legal system has granted a civil monetary damages award to a foreigner due to violation of international human rights norms by other foreigners in a foreign country similar to the awards made by U.S. courts in civil lawsuits under the Alien Tort Statute.

In the meantime, Bulgarian prosecutors are still investigating what happened in Libya for a possible criminal prosecution of those responsible for the torture.

International Criminal Court: More Developments

This past week has seen several important developments for the International Criminal Court (ICC).

Libya. The two remaining subjects of arrest warrants have been apprehended in Libya by militia groups, but have not been turned over to the ICC, and the Court and the National Transitional Council have been engaged in a dispute as to whether they should be turned over or tried in Libya, which does not have a functioning judicial system.

On April 4th an ICC Pre-Trial Chamber rejected the second request by the National Transitional Council to postpone the ICC’s surrender request for Saif Al-Islam Gaddafi pending the completion of proceedings against him in Libya. The Chamber, therefore, stated that Libya must (i) make its decision to grant the Surrender Request; (ii) afford Mr. Gaddafi the procedure described in Article 59 of the [Rome] Statute which necessarily follows from arresting a person subject to a surrender request; and (iii) start making arrangements in preparation for the surrender of Mr. Gaddafi to the Court without further ado.”

Article 59 provides the subject of an arrest warrant has the right to a prompt hearing before the competent national judicial authority to determine that the warrant applies to the individual, his/her arrest has been in accordance with proper process and his/her rights have been respected. There is also a right for the individual to apply for interim release, which in this case seems exceedingly unlikely to be granted by any authority.

Palestine. On April 3rd the Office of the Prosecutor released a report about its preliminary examination of the Situation in Palestine. It said the ICC’s jurisdiction is not based upon the principle of universal jurisdiction. Instead, the Rome Statute requires that the U.N. Security Council or a “State” provide jurisdiction by becoming a State Party or by making an ad hoc declaration accepting the Court’s jurisdiction.

Here, the statement said the Prosecutor was not the proper person to make a determination as to whether Palestine was a “State” for purposes of the ICC. That was a decision, the statement concluded, that had to be made by “relevant bodies of the [U.N.]” or by the ICC’s Assembly of States Parties.

Guatemala. On April 2nd the U.N. received from the Government of the Republic of Guatemala its instrument of accession to the Rome Statute. The Statute will enter into force for Guatemala on 1 July 2012, bringing to 121 the total number of States Parties, 27 of which are from Latin America and the Caribbean

Are International Criminal Tribunals Successful?

Michael Ignatieff, a former Harvard professor and expert on international human rights and a former leader of Canada’s Liberal Party, in a recent issue of The New York Review of Books expressed a gloomy view of the post-World War II development of international criminal tribunals.

The actions of the U.S. and other great powers have contributed to his negativity. He says, “America is exceptional in combining standard great-power realism with extravagant idealism about the country’s redemptive role in creating international order. . . . [The] US has promoted universal legal norms and the institutions to enforce them, while seeking by hook or by crook to exempt American citizens, especially soldiers, from their actual application. From Nuremberg onward, no country has invested more in the development of international jurisdiction for atrocity crimes and no country has worked harder to make sure that the law it seeks for others does not apply to itself.”

This negative assessment is buttressed by the new memoir by David Scheffer (All the Missing Souls: A Personal History of the War Crimes Tribunals). Scheffer, who was one of the leading U.S. diplomats involved in the negotiations that created these tribunals, recounts the U.S. resistance to (i) providing U.S. intelligence information to the ICTY; (ii) seeking to arrest the most egregious defendants for the ICTY; and (III) having U.S. citizens, especially soldiers, being subject to the jurisdiction of the International Criminal Court (ICC). A review of this book is the nominal subject of this essay by Ignatieff.

Scheffer’s post-mortem on his frustrations as the lead U.S. diplomat at the Rome Conference that produced the Rome Statute for the ICC is especially instructive on why the U.S. voted against that treaty at the conclusion of the conference and more generally on the U.S. process for negotiating and ratifying multilateral treaties.

According to Scheffer, there were four main reasons for the inability of the U.S. to advance its positions at the Rome Conference and its eventual vote against the treaty at the conference’s conclusion. U.S. military officials failed to know and understand other nations’ perspectives on the ICC and to explain to other nations the role of the U.S. military after the end of the Cold War. Nevertheless the U.S. military’s opposition to the ICC dictated the terms of the unsuccessful U.S. negotiating positions at the conference. In addition, the U.S. government was unable to make timely policy decisions on key issues being negotiated for the treaty. Thirdly, there are always distractions and other matters clamoring for the attention of the President and his top advisors; for President Clinton and the Rome Conference it was the Monica Lewinsky scandal. Finally, Republican Senators Jesse Helms of North Carolina and Rod Grams of Minnesota, who were vehemently opposed to the idea of an ICC, attended the Rome Conference to make their views known to other governments.

Scheffer also provides important background information on two developments after the Rome Conference that remind us that there are important issues for a treaty like the Rome Statute after its terms have been adopted. First, he successfully pressed for significant U.S. participation in the drafting of the ICC’s Rules of Procedure and Evidence and the Elements of Crimes that helped to alleviate some of the U.S. concerns regarding due process at the new court. Second, Scheffer also was successful in lobbying for the U.S.’ signing the Rome Statute before the end of 2000 (the last possible date for a state’s signing the treaty), which he did on behalf of the U.S. at the U.N. headquarters in New York City on December 31st (a very wintery Sunday New Year’s Eve Day). He, however, was not pleased with some of the details of President Clinton’s signing statement that said the treaty had “significant flaws” and that he would not be submitting the treaty to the Senate for advice and consent. The latter point, says Scheffer, was unnecessary since the Clinton presidency was almost over and since it usually takes years to prepare a treaty for submission to the Senate.

Ignatieff’s negative assessment of the U.S. split personality on this subject is also supported by the fact that the U.S. has been actively involved in the post-1945 negotiation of treaties that establish or codify international human rights norms, but has not ratified 16 such treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court. Moreover, the U.S. has subjected its ratification of 10 of 16 such treaties to reservations, declarations and understandings that attempt to limit the application of such treaties to the U.S. (David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 136-66 (3d ed. 2001).)

We have seen this phenomenon in a prior post‘s examination of the U.S. ratification of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and by another post’s noting that Protocol II to the Geneva Conventions has been languishing in the U.S. Senate for 25 years with no action on presidential requests for advice and consent to U.S. ratification of that treaty. Other posts examined the policies toward the ICC in the Clinton, George W. Bush and Obama Administrations.

According to Ignatieff, the development of mechanisms of international criminal justice “was supposed to rescue the possibility of universal justice from the revenge frenzies, political compromises, and local partialities of national justice.” This has not been the case, however, in his opinion, because “international justice turns out to be as much the prisoner of international politics as national justice is of national politics. Indeed, given the stakes, international justice may be more partial, that is, more politicized, than national justice.”

Therefore, he wonders if the creation of the international criminal tribunals—Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC —has been worth the effort and costs. From 1993 through 2009, he says, these tribunals collectively cost their donors $3.43 billion, but only 131 convictions were obtained.

In the next breath, however, Ignatieff seems to say that the tribunals have been worth all the trouble. He says that no one now is dying from atrocity crimes in Bosnia, or in Cambodia, Sierra Leone, or Rwanda, which have had special international criminal tribunals. “Justice—imperfect, partial, expensive—has been done and even been seen to be done. In these places, murderous rages have subsided. Some have reconciled. States have achieved stability. People are moving on. One of the reasons for this may be that in some cases justice was done.”

Although I share Ignatieff’s view of the imperfections of the mechanisms of international criminal justice and of U.S. (and other great powers’) resistance to application of such institutions or norms to themselves, I do not agree with his more pessimistic assessment of the development of international criminal tribunals.

First, he pulls the number of convictions at 131 from a table of results (as of December 31, 2010) in the Scheffer book without mentioning or considering these tribunals’ other results according to that table . Nor does Ignatieff attempt to update the table.

Let me first update that table and then discuss the overall results of these tribunals. My examination on April 1, 2012, of the websites for these tribunals revealed the following results with respect to individuals who have been charged with crimes by said tribunals:

Tribunal	Pre-Trail	Trial	Convicted (includes pending appeals)	Withdrawn/Dismissed/Acquitted/ Deceased	Referred to Nat’l Court	At Large	TOTAL
ICTY	2	16	81	49	13	0	161
ICTR	1	3	62	14	3	9	92
Special Ct.-Sierra Leone	0	1	8	2	0	1	12
Extra Chambers Cambodia	5	4	1	0	0	0	10
ICC	7	3	1	6	0	11	28
TOTAL	15	27	153	71	16	21	303

According to this table, Ignatieff understates the convictions by 22, but more importantly he ignores the 16 who have been referred to national courts, the 42 who are still in pre-trial or trial proceedings and the 21 who are still fugitives. Thus, there eventually may be additional convictions for the crimes that have been charged. Moreover, these courts are not machines to produce convictions; they are intended to provide due process guarantees to those charged with crimes, and the 71 individuals who have had charges withdrawn or dismissed or who have been acquitted or who have died before their trials could be completed suggest that these courts have been operating fairly.

Second, Ignatieff ignores the fact that the existence and operation of these tribunals have given incentives and programs to various countries to improve their judicial systems so that eventually they can try individuals for the crimes within the jurisdiction of these international courts. Indeed, 16 of the individuals who have been charged with crimes by these tribunals have had their cases transferred to national court systems. As previously noted, the ICC’s Rome Statute has provisions incorporating the principle of complementarity whereby the ICC defers to national prosecutions by competent national judicial systems.

Third, Ignatieff also ignores the fact that these tribunals have been important in developing a more elaborate international law regarding genocide, crimes against humanity and war crimes, and their precedents can be and are being used by other courts and agencies involved in cases or other proceedings regarding international human rights.

Fourth, Ignatieff fails to acknowledge that these tribunals are only one part of a complex, interactive global struggle against impunity for the worst crimes of concern to the international community. Various posts already have discussed many of these pieces to the puzzle, and a prior post summarized this interactive network

Finally, in my opinion, these tribunals have been successful for the foregoing reasons. The peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further developments, I am confident, will occur.

Inter-American Commission on Human Rights Decides Guantanamo Bay Detainee’s Case Against U.S. Is Admissible on the Merits

On March 30, 2012, the Inter-American Commission on Human Rights (“IACHR” or “Commission”) decided that a case against the U.S. was admissible for determination on the merits.

The case was brought by Djamel Ameziane, who left his home country of Algeria in the early 1990s to avoid a bloody civil war. Thereafter he lived in Austria and Canada for many years until Canada denied his asylum application. Fearing deportation to Algeria, he fled to Afghanistan just before the U.S. invasion in October 2001. Like many others, he then went to Pakistan to escape the war. There he was picked up and sold to U.S. forces for a bounty. In early 2002 Ameziane was transferred to the U.S. detention facility at Guantanamo Bay, Cuba, where he has been held ever since without any charges being filed against him. Documents about his hearings at Guantanamo Bay are available on the web.)

In February 2005 he filed a habeas corpus petition with the U.S. District Court in Washington, D.C. There were some preliminary pre-trial and appellate skirmishes, but the case has been stayed or postponed indefinitely by court order.

Thus being left without an effective remedy in U.S. federal court, Ameziane on August 6, 2008, filed with the IACHR a petition and a request for precautionary measures (akin to a preliminary injunction) against the U.S.

Two weeks later, the Commission issued its Urgent Precautionary Measures that required the U.S. immediately to do the following:1.

“[T]ake all measures necessary to ensure that . . . Ameziane is not subjected to cruel, inhuman or degrading treatment or torture during the course of interrogations or at any other time, including but not limited to all corporal punishment and punishment that may be prejudicial to [his] physical or mental health;
[T]ake all measures necessary to ensure that . . . Ameziane receives prompt and effective medical attention for physical and psychological ailments and that such medical attention is not made contingent upon any condition;
[T]ake all measures necessary to ensure that, prior to any potential transfer or release, . . . Ameziane is provided an adequate, individualized examination of his circumstances through a fair and transparent process before a competent, independent and impartial decision maker; and
[T]ake all measures necessary to ensure that . . . Ameziane is not transferred or removed to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture or other mistreatment, and that diplomatic assurances are not being used to circumvent the United States’ non-refoulement obligations.”

In October 2010 the Commission held a hearing in the case. Evidence was provided about Ameziane’s lack of effective remedies in U.S. courts, his continuing need to be protected from forcible transfer to Algeria and his plea for resettlement in a safe third country.

Eighteen months later the Commission issued its previously mentioned decision that the case was admissible for proceedings on the merits. Thereafter Ameziane’s attorneys immediately renewed their request that the IACHR facilitate a dialogue between the U.S. and other countries belonging to the Organization of American States toward the safe resettlement of men such as Ameziane, as indefinite detention at Guantánamo will not end unless the international community offers safe homes for the men who cannot return to their countries of nationality for fear of torture or persecution. The attorneys also asked the U.S. Government to direct the U.S. Department of Defense to certify Ameziane for transfer, or, if necessary, authorize a “national security waiver” of the transfer restrictions for him. (Under the National Defense Authorization Act for FY2012, he needs a certification or waiver before he can be released.)

Now we wait to see what happens in this case.

Ameziane’s attorneys are from the Center for Constitutional Rights, which is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.

Garzón Calls for Spanish Truth Commission Regarding Franco Regime’s Crimes

On March 30th former Spanish Judge Baltasar Garzón wrote a passionate article in El Pais, Spain’s leading newspaper, that called for Spain to create a truth commission to investigate and report on the crimes of the Franco regime during the period 1936-1951.

Such a commission, he said, should be independent and inclusive. It should obtain the testimonies of victims and perpetrators and of experts. Its ultimate report should set forth its factual findings of the historical truth plus the individual and collective reparations owed to the victims.

Moreover, the Spanish Supreme Court judgment that absolved him of any crime in his authorization of a judicial investigation of this subject, Garzón said, acknowledged that the victims of the Franco regime crimes had legitimate aspirations to know what happened, how and why. Now a truth commission would be able to respond to those legitimate aspirations.

According to Garzón, there “are more than 100,000 people missing in the Spanish fields, whose remains remember the dignity of those who demand justice against the indignity of those who took justice away– and the silence of those who allowed it to happen–and thereby assumed the international embarrassment of forgetting and silence.”

Methods of Enforcing International Human Rights Norms

There are numerous ways in which international human rights norms are enforced, many of which already have been examined in this blog. Here is at least a partial list of such methods:

Alleged violators of such rights can be subjected to criminal prosecution by their own national courts, by other nations’ courts under the principle of universal jurisdiction, by so-called ad hoc international criminal tribunals and by the International Criminal Court.

Alleged violators can also be subjected to civil lawsuits for money damages by national courts as in the U.S. under the Alien Tort Statute and the Torture Victims Protection Act.

Countries like the U.S. that are parties to certain regional organizations like the Organization of American States can be sued for alleged violations of human rights treaties in bodies like the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

Complaints about a country’s alleged violations can be reported to special rapportuers with specific subject-matter competence for an investigation and report.

Countries like the U.S. that are parties to certain human rights treaties like the Convention Against Torture submit reports to treaty bodies for review and recommendations for improving their compliance with the treaties.

All members of the U.N. are subject to Universal Periodic Review (UPR) by the U.N. Human Rights Council and obtain recommendations for ways they can improve their human rights records.

Victims of certain human rights violations can obtain protection through being recognized as a “refugee.”

Truth commissions can investigate and promulgate the results of those investigations as the “truth” of past violations which then can be used as evidence in the previously mentioned procedures.

These various institutions or mechanisms operate independently of one another. Other than the first two, they have limited power to force a recalcitrant government to change its behavior. Yet they also are all engaged in an interactive global struggle against impunity for violators of international human rights norms.

International Criminal Court and Victims of Genocide, Crimes Against Humanity and War Crimes

The Rome Statute of the International Criminal Court (ICC) has several unique provisions for victims. First, victims may participate in cases before the Court. Second, victims are entitled to reparations from those convicted by the Court, and the Court has a fund and procedures for victims to obtain reparations from the Court itself.

Victims’ Participation in Proceedings

Under the Statute’s Article 68(3), the Court “shall permit [victims’] views and concerns to be presented and considered at [various] stages of the proceedings . . .and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” In doing so, the Court, under Article 68(1), “shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses . . . [having] regard to all relevant factors, including age, gender . . . and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children.”

To carry out these provisions, the Court has created the Office of Public Counsel for Victims that seeks to ensure effective participation of victims in the proceedings before the Court by providing legal support and assistance to the legal representatives of victims and to victims. Members of the Office also may be appointed as legal representatives of victims, providing their services free of charge.

Victims’ Right to Reparations

Article 75(1)-(2) of the Rome Statute provides that the Court “shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation” and “may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”

Pursuant to that provision, the Court’s Assembly of States Parties has adopted Rules of Procedure and Evidence. Its Rule 97 (1) provides that the Court ” may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both” in light of ” the scope and extent of any damage, loss or injury.” In addition, Rule 97(2) allows the Court to ” appoint appropriate experts to assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims and to suggest various options concerning the appropriate types and modalities of reparations.

To assist in the reparations effort, the Statute’s Article 79(1) directs the Court’s Assembly of States Parties to establish a Trust Fund “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.”

Such a trust fund (Trust Fund for Victims (TFV)) has been created, the first of its kind in the global movement to end impunity and promote justice. The TFV addresses and responds to the physical, psychological, or material needs of the most vulnerable victims. It raises public awareness and mobilizes people, ideas and resources. It funds innovative projects through intermediaries to relieve the suffering of the often forgotten survivors. The TFV, for example, is providing a broad range of support in northern Uganda and the Democratic Republic of Congo – including access to reproductive health services, vocational training, trauma-based counseling, reconciliation workshops, reconstructive surgery and more – to over 80,000 victims of crimes under the ICC’s jurisdiction.

In light of the conviction of Thomas Lubanga Dyilo, the TFV Board of Directors recently decided to increase the Fund to 1.2 million Euros. The Board also called upon the Court and States Parties to intensify efforts to identify and freeze assets of persons accused before the ICC, for the eventual purpose of financing Court-ordered reparations.

The Antiquated U.S. Constitution

With the U.S. Supreme Court arguments this week regarding the Affordable Health Care Act we are reading and hearing what seems like non-stop commentary on the constitutional arguments that are being made by the lawyers and questioned by the Justices.

As a retired lawyer who studied constitutional law in law school nearly 50 years ago and who was a lawyer in some constitutional cases, I should be enjoying this commentary. But I am not.

I increasingly am coming to the conclusion that the U.S. Constitution is antiquated and needs radical changes.

We in the U.S. have developed a cult of worshipping the Founding Fathers as if they were demigods. Yes, they were wise in many ways, especially on the need for checks and balances in any governmental system. But if they were as wise as we often think they were, then do we really think that these men of the late 18th century would want their descendants in the early 21st century to obsess over what we think they intended in the late 18th century? Especially over terms like “due process” and “cruel and unusual punishment” that appear on their face to invite evolving meaning as circumstances change?

The U.S., in my opinion, is one nation, and the national government needs to be able to address problems facing the nation, like the problem of providing affordable health care to its citizens. The so-called “individual mandate” is one way to address that problem and should be permissible.

There are so many other problems that the U.S. is not addressing today. Our governmental system–our Constitution–is not working, in my opinion.

I have no grand alternative constitutional schema in mind, but as previously noted, I think the U.S. Senate in particular needs radical reform if we are to retain a bicameral national legislature.

To require 60% of the Senators to agree in order to do almost anything for me is outrageous. It should only be 51% for most issues. This deficiency is exacerbated by the fact that each state has two and only two Senators regardless of the state’s population. Yes, this was part of the original grand and anti-democratic compromise in the late 18th century when there were 13 states. But the expansion of the union to 50 states has made the Senate even more anti-democratic.

Since I believe that it would not be wise to increase the size of the Senate to reflect the population of the states (like the allocation of seats in the U.S. House of Representatives) and that each state should continue to have two Senators in a bicameral upper house, I suggest for discussion that there be weighted voting in the Senate. Each Senator from Wyoming (the least populous state in 2010 with 564,000) would have 1 vote, for example, but each Senator from California (the most populous state in 2010 with 37,254,000) would have 66 votes (37254/564 = 66.05). This approach would produce a total Senate vote of 1,094 (total U.S. population in 2010 of 308,746,000 divided by 564,000 (population of Wyoming) = 547 x 2 = 1094). The weightings would be changed every 10 years with the new census population figures.

As I suggested in a 1996 virtual constitutional convention, I would also change the term of office of members of the House of Representatives from two years to four years to coincide with the presidential election. This should result in less divided and stalemated government.

I also recommend that we have direct election of the U.S. President by the national popular vote and abolish the electoral college. This would eliminate the possibility of a repeat of the outrageous Bush v. Gore decision of the U.S. Supreme Court in 2000.

This new constitutional framework would permit the national legislature to enact laws regulating guns and political contributions, now virtually forbidden by the Supreme Court’s interpretations of the existing Constitution.

The process of amending our current Constitution is appropriately difficult. Probably a new constitutional convention would be the most appropriate way to make the kind of changes I think should be considered and adopted. I despair, however, when I speculate of how such a convention could be held today.