Convention Against Torture – dwkcommentaries

Extradition Has Become a Hot Topic for the United States

Extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense. In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”[1]

That process is now a hot topic in the U.S. Most recently Turkey is pressing the U.S. to extradite Fethullah Gulen, a Muslim cleric living in Pennsylvania, to Turkey to face charges of being involved in the attempted coup in that country. Another pending request, this from Spain, seeks the U.S. extradition of Inocente Orlando Montano Morales, a former Salvadoran military officer living in the U.S., to face criminal charges involving the 1989 murders of Jesuit priests in El Salvador. Extradition also is one of the many unresolved issues in the process of normalizing U.S.-Cuba relations: will Cuba extradite certain U.S. fugitives and will the U.S. do likewise for certain Cuban fugitives.[2]

Therefore, a better understanding of international extradition is necessary to follow these developments. Such a primer can be found in a 2001 U.S. State Department report to Congress and a recent U.S. government brief in the previously mentioned Spanish case for extradition of the former Salvadoran military officer from the U.S.[3] Assuming those sources are fair summaries of the process, this post omits citations to statutes and cases other than to note that extradition is the subject of 18 U.S. Code, Chapter 209.

U.S. Extradition Treaties

U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties.[4] While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19^th Century.

For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.

In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:

An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.

A similarly widely adopted exception is that extradition is not required where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).

U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.

Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals. The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.

Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.

Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.

Other limitations on the obligation to extradite, which vary to some extent from treaty to treaty, would relate to requests for extradition for extraterritorial offenses where the two countries’ laws differ on the reach of jurisdiction over such crimes. In such cases, the U.S. seeks the greatest possible flexibility in our treaties to permit extradition for offenses that have taken place in whole or in part outside the territory of the requesting party.

U.S. Practice Regarding Foreign Government Requests for Extradition

The U.S. practice regarding foreign government requests for extradition involves the Department of State, the Department of Justice, a U.S. attorney, a U.S. district court and the Secretary of State.

U.S. Department of State

The extradition process in the U.S. starts when the Department of State receives a request for extradition from a foreign country. That Department initially determines whether the request is governed by a treaty between the U.S. and that country, and if there is such a treaty and the request conforms to the treaty, that Department will prepare a declaration authenticating the request and send it to the U.S. Department of Justice’s Office of International Affairs.

U.S. Department of Justice[5]

The Justice Department’s Office of International Affairs examines the foreign country’s request to determine if it contains all of the necessary information. If it does, the request is sent to the U.S. Attorney for the district where the subject of the request is located. Thereafter the Office’s attorneys will assist, as needed, the U.S. Attorney.

U.S. Attorney

The U.S. Attorney then prepares and files a complaint with the local U.S. district court seeking a warrant for the individual’s arrest and certification that he or she may be extradited. The U.S. Attorney also files briefs and appears at any hearings in the district court in the case.

U.S. District Court

The complaint, of course, is served upon the subject of the proceeding, who has a right to be represented by counsel and to contest the complaint.

The court then conducts a hearing to determine if there is probable cause that the subject has violated one or more of the criminal laws of the country seeking extradition. This is not a criminal trial, but like a preliminary hearing in a criminal case to determine if the evidence is sufficient to sustain the charge under the treaty’s provisions.

At such a hearing, the Federal Rules of Civil Procedure, Criminal Procedure and Evidence do not apply. Thus, the evidence may consist of hearsay and unsworn statements, and the judicial officer does not weigh conflicting evidence and make factual determinations. Instead the officer only decides whether there is competent evidence to support the belief that the individual has committed the charged offense under the other country’s laws.

At this hearing, the individual has no right to submit a defense to the charges or evidence that merely contradicts the other country’s proof or poses conflicts of credibility.

If the court finds after the hearing that (a) there is a criminal charge pending in the other country against the individual; (b) the offense underlying the charge is encompassed by the relevant treaty; (c) the individual is the person sought by the foreign government; (d) the evidence supports a finding that the crime for which the individual is sought was committed; (e) the evidence supports a finding that the individual committed the crime; and (f) the treaty has no other basis for denying extradition; then the court issues a certification that the individual is subject to extradition.

Such a certification may be challenged only by the individual’s filing a petition for a writ of habeas corpus to the same district court.[6]

If there is no petition or it is denied, the court sends the certification to the Secretary of State.

U.S. Secretary of State[7]

Under U.S. statutes, the Secretary of State is the U.S. official responsible for determining whether to surrender a fugitive to a requesting state. In making this decision, the Secretary may consider issues properly raised before the extradition court or a habeas court as well as any humanitarian or other considerations for or against surrender, including whether surrender may violate the United States’ obligations under the Convention Against Torture. The Secretary also will consider any written materials submitted by the fugitive, his or her counsel, or other interested parties.

If the Secretary decides to extradite, the Secretary issues and serves a warrant for the extradition, and the individual is extradited to the other country.

=========================================================

[1] U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition;Memorandum in Support of Motion To Dismiss Application for Habeas Corpus at 2, Montano Morales v. Elks, No. 5-16-HC-2066-BO (E.D.N.C. April 26, 2016).

[2] Future posts will examine the requests from Spain and Turkey while an earlier post reviewed a district court’s issuance of the certification for extradition to Spain of the former Salvadoran military officer: Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?, dwkcommentaries.com (Feb. 6, 2016). Another post reviewed U.S. and Cuban extradition issues: Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015).

[3] See n.1.

[4] The U.S. currently has bilateral extradition treaties with 109 countries.

[5] Justice Dep’t, Office of International Affairs.

[6] A prior post erroneously stated that such a certification was subject to an ordinary appeal to the relevant U.S. court of appeals.

[7] State Dep’t, Extradition.

Spanish Court Refuses to Apply New Amendment to Spain’s Universal Jurisdiction Statute

On March 15^th Spanish High Court Judge Pablo Ruz refused in two cases to apply Spain’s new amendment to its universal jurisdiction statute.[1] This is the subject of a report in Spain’s leading newspaper, El Pais.

U.S. Detainees Case

One case has U.S. Government officials in its sights. It involves alleged torture by U.S. officials of five individuals from the moment of their initial detention in various countries (Afghanistan, Pakistan and Gambia) and subsequent detention at Guantanamo Bay, Cuba. On March 15^th Judge Ruz renewed his request to the U.S. Government for information about U.S. investigation of these cases.

The Judge concluded that under the new amendment “torture and war crimes cannot be pursued . . . because the target of the procedure is not a Spaniard or a resident of Spain.” These restrictions , however, are trumped by international treaties ratified by Spain–the Geneva Conventions and the Convention Against Torture–which force signatory countries to pursue crimes.

The new amendment also stipulates that crimes cannot be pursued in Spain if they are already being investigated by an international court or by the country where they were committed. This is why Judge Ruz is insisting on securing information from US authorities regarding the status of any investigation there.

Western Saharan Genocide Case

The other case involves claims of genocide against several members of the Moroccan military in connection with Western Sahara, a disputed territory that Morocco claims as its own.

Judge Ruz asserts that the court has jurisdiction because the alleged crimes were committed between November 1975 and February 1976 when Western Sahara was still a Spanish colony. Thus, the court concluded, the alleged crimes must be considered to have been committed on Spanish territory for legal purposes.

The Judge also says he has the power to keep open this investigation because it involves alleged genocide.

———————————————————————-

[1] A prior post discussed the amendment added earlier this year to the universal jurisdiction statute while comments thereto talked about initial reaction to the amendment. Another post involved the court’s refusal to apply the new amendment in a case involving the Geneva Conventions while a subsequent post talked about the High Court’s following the new amendment in drug-trafficking cases.

Multilateral Human Rights Treaties Ratified by the U.S.

The U.S. is a party to at least 19 significant multilateral human rights treaties.[1]

Three of them have been reviewed in posts regarding their complex and lengthy U.S. ratification process: the Convention Against Torture, the Genocide Convention and the International Covenant on Civil and Political Rights.

Here is a list of the other 16 such treaties (with the dates they generally entered into force and the dates they were ratified by the U.S. or entered into force for the U.S.):

Slavery Convention (3/9/1927 & 3/21/1929);
Protocol Amending the Slavery Convention (12/7/1953 & 3/7/1956);
Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (4/30/1957 & 12/6/1967);
Abolition of Forced Labour [sic] Convention (1/17/1959 & 9/25/1992);
Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour [sic] (11/17/2000 & 11/17/2000);
United Nations Charter (10/24/1945 & 10/24/1945); [2]
First Geneva Convention for the Amelioration of Condition of Wounded and Sick in Armed Forces in the Field (10/21/1950 & 2/2/1956);
Second Geneva Convention for the Amelioration of Condition of Wounded and Sick and Shipwrecked in Armed Forces at Sea (10/21/1950 & 2/2/1956);
Third Geneva Convention for Treatment of Prisoners of War (10/21/1950 & 2/2/1956);
Fourth Geneva Convention for the Protection of Civilians in Time of War (10/21/1950 & 2/2/1956);
Protocol Relating to the Status of Refugees (10/4/1967 & 11/1/1968);[3]
Convention on the Political Rights of Women (7/7/1954 & 7/7/1976);[4]
International Convention on the Elimination of All Forms of Racial Discrimination (1/4/1969 & 11/20/1994);
Optional Protocol to the Convention on the Rights of the Child (Involvement of Children in Armed Conflicts) (2/12/2002 & 12/23/2002);
Optional Protocol to the Convention on the Rights of the Child (Sale of Children, Child Prostitution and Child Pornography) (1/18/2002 & 12/23/2002); and
Charter of the Organization of American States (12/13/1951 & 12/13/1951).[5]

Merely reviewing the list of these treaties shows the variety of their subjects and the U.S. commitment to international human rights.[6]

[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 136-38 (4th ed. LexisNexis 2009) [Weissbrodt Book].

[2] The U.N. Charter’s Preamble states that the “Peoples of the United Nations [are determined] to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” Its Article 55 requires the U.N. to promote, among other things, “universal respect for . . . human rights . . . without discrimination. . . .” Its Article 68 called for the establishment of a Commission on Human Rights. It should also be noted that in 1944 the U.S. prepared the initial plan for what became the U.N., and it included an international bill of rights. (Weissbrodt Book at 11-13.)

[3] The U.S. ratification of the Protocol Relating to the Status of Refugees implicitly ratified the Convention Relating to the Status of Refugees that generally entered into force on April 22, 1954. The substance of the two treaties was discussed in an earlier post.

[4] This Convention’s Article I states,”Women shall be entitled to vote in all elections on equal terms with men,without any discrimination.”

[5] The Charter of the OAS proclaimed “the fundamental rights of the individual without distinction as to race, nationality, creed, or sex” (Art. 3(1) and the responsibility of each state in its development to “respect the rights of the individual and the principles of universal morality” (Art. 17). The Charter also established the Inter-American Commission on Human Rights “to promote the observance and protection of human rights” and to prepare an “Inter-American convention on human rights” (Art. 106).

[6] It would be interesting to review the history of the U.S. ratification of these treaties, especially those with long periods before the U.S. became a party. I would be interested in comments by anyone who has done so or by anyone who finds errors in this summary.

U.S. Ratification of the International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR or Covenant) was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated. [1]

The Covenant establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The Covenant forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.[2]

The Covenant went into force on March 23, 1976, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty.

A year and a half later (October 5, 1977), the U.S. started its process for ratification of this treaty when President Jimmy Carter signed the Covenant on behalf of the U.S. at the U.N. Headquarters in New York City.

On that occasion the President observed that the Covenant was “concerned about the rights of individual human beings and the duties of governments to the people they are created to serve.” Parties to the Covenant, the President added, pledge, “as a matter of law, to refrain from subjecting its own people to arbitrary imprisonment or execution or to cruel or degrading treatment.” In addition, this treaty “recognizes the right of every person to freedom of thought, freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of association, and the rights of peaceful assembly, and the right to emigrate from that country.” [3]

Over four months later (February 23, 1978) the next step in the U.S. process was taken. President Carter submitted the Covenant to the U.S. Senate and requested its advice and consent to ratification with reservations, understandings and declarations.[4] He said,

“While the [U.S.] is a leader in the realization and protection of human rights, it is one of the few large nations that has [sic] not become a party to . . . [this Covenant and the other two U.N. treaties he transmitted]. Our failure to become a party increasingly reflects upon our attainments, and prejudices [U.S.] participation in the development of the international law of human rights. [This Covenant is] . . . based upon the Universal Declaration of Human Rights, in whose conception, formulation and adoption the [U.S.] played a central role. . . . [This Covenant] treats in detail a wide range of civil and political rights. Freedom of speech and thought, participation in government, and others are included which Americans have always considered vital to a free, open and humane society.”
“The great majority of the substantive provisions of [this Covenant] are entirely consistent with the letter and spirit of the [U.S.] Constitution and laws. Wherever a provision is in conflict with [U.S.] law, a reservation, understanding or declaration has been recommended. The Department of Justice concurs in the judgment of the Department of State that, with the inclusion of these reservations, understandings and declarations, there are no constitutional or other legal obstacles to [U.S.] ratification.”

In 1979 the U.S. Senate Committee on Foreign Relations held hearings on the treaty, but took no action. Therefore, the Senate as a whole did not consider the treaty at that time. Later Senator Clairborne Pell said that although “there was significant support for ratification [in 1979] . . . domestic and international events at the end of 1979 [the Soviet invasion of Afghanistan and the Iranian hostage crisis] prevented the Foreign Relations Committee from moving to a vote on the covenant after hearings were completed.” Nor was there a vote on the treaty during the Reagan administration (1981-1989), according to Senator Pell, because that Administration had no interest in ratifying this treaty.

This presidential attitude changed in August 1991, with the Administration of George H. W. Bush, who requested the Senate to give its advice and consent to ratification of the Covenant subject to proposed reservations, understandings and declarations substantially the same as those proposed by the Carter Administration in 1978.

In response the Senate Foreign Relations Committee held hearings on the treaty in November 1991, and on March 4, 1992, the Committee voted unanimously to report the treaty favorably to the entire Senate for its consideration. Its report stated, “The . . . Covenant . . . is one of the fundamental instruments created by the international community for the global promotion and protection of human rights. . . . In view of the leading role that the [U.S.] plays in the international struggle for human rights, the absence of U.S. ratification of the Covenant is conspicuous and, in the view of many, hypocritical. The Committee believes that ratification will remove doubts about the seriousness of the U.S. commitment to human rights and strengthen the impact of U.S. efforts in the human rights field.”

Soon thereafter (April 2, 1992), the U.S. Senate debated the treaty. In presenting the resolution supporting such action, Senator Pell, the Chairman of the Foreign Relations Committee, said the U.S. “plays a leading role in the international struggle to promote and protect human rights. However, failure to ratify the covenant has blemished our record and cast doubt, in some quarters, about the seriousness of our commitment to human rights. Ratification will reverse this situation. It will demonstrate that our commitment is serious and sincere and strengthen our voice as a champion of human rights. Ratification will enable the [U.S.] to participate in the work of the Human Rights Committee established by the covenant to monitor compliance. The rights guaranteed by the covenant are the cornerstones of a democratic society. By ratifying the covenant now, we have an opportunity to promote democratic rights and freedoms and the rule of law in the former Soviet Republics, Eastern Europe, and other areas where democracy is taking hold.”

With little debate the Senate, by a two-thirds vote of those Senators present, then gave its advice and consent to ratification of the Covenant with the following five reservations, understandings, four declarations and one proviso:

The five reservations (1) preserved the higher protection of free speech and association guaranteed by the U.S. Constitution; (2) reserved the U.S. right to impose the death penalty as punishment for individuals under the age of 18; (3) limited the ban on”cruel, inhuman or degrading treatment or punishment” to the definitions in the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution; (4) reserved the right to impose a criminal penalty in force at the time of an offense even if a lighter penalty is later prescribed; and (5) reserved the right to treat juveniles as adults in exceptional circumstances.

The five understandings stated that (1) distinctions based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status are permissible if rationally related to a legitimate governmental objective; (2) compensation of victims for unlawful arrest, detention or miscarriage of justice are subject to reasonable requirements of U.S. law; (3) certain practices concerning accused and convicted individuals were preserved; (4) governmental responsibilities to criminal defendants were limited; and (5) the obligation of the U.S.federal government to enforce the Covenant in the federal system were limited.

The four declarations provided that (I) the Covenant was not self-executing; (2) states could not use the Covenant to reduce any higher standards of U.S. law; (3) the U.S. accepted the competence of the U.N. Human Rights Committee to resolve inter-State claims of non-compliance with the treaty; and (4) the right under Article 47’s right of all peoples to enjoy and utilize natural wealth and resources may be exercised only in accordance with international law.

The proviso stated that the Covenant did not require or authorize legislation or other action that was prohibited by the U.S. Constitution as interpreted by the U.S.

On June 5, 1992, President George H.W. Bush signed the U.S. instrument of ratification of the Covenant which, his signing statement said, “articulates the principles inherent in a democracy, including freedom of expression and peaceful assembly, equal protection under the law, and the right to liberty and security. By ratifying the Covenant, the United States is underscoring its commitment to these principles at home and abroad. We hope that our ratification of the Covenant will contribute to the fostering of democracy and human rights throughout the world.”

Three days later (June 8, 1992) that instrument of ratification was filed with the U.N. Secretary-General, thus marking the official date of U.S. ratification. This was nearly 26 years after the Covenant had been approved by the U.N.

Thereafter a number of other states filed objections to the U.S. reservations and understandings. [5]

Now 167 states are parties to the Covenant.

This account of the belated U.S. ratification of an important multilateral human rights treaty shows the complexity of the negotiation and adoption of such treaties and of their ratification by the U.S. There is a similar history of the U.S. ratification of (a) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and (b) the Genocide Convention.

[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 141-43 (4th ed. LexisNexis 2009).

[2] The ICCPR is based upon the Universal Declaration of Human Rights, which was adopted by the U.N. General Assembly on December 10, 1948. The Declaration, however, is only a resolution of the General Assembly. It is not a treaty that imposes international legal obligations on states and thus was seen from the start as a basis for subsequent treaties, including the ICCPR.

[3] Weissbrodt, United States Ratification of the Human Rights Conventions, 63 U. MInn. L. Rev. 35 (1978).

[4] Simultaneously President Carter submitted to the Senate: the International Convention on the Elimination of All Forms for Racial Discrimination, which President Gerald Ford had signed on September 28, 1966, and which the U.S. subsequently ratified on October 21, 1994. Two other human rights treaties also were submitted to the Senate by President Carter on February 23, 1978, but they have not yet been ratified by the U.S.: the International Covenant on Economic, Social and Cultural Rights, which President Carter also had signed on October 5, 1977; and the American Convention on Human Rights, which he had signed on June 1, 1977.

[5] Weissbrodt, 63 U. Minn. L. Rev. at 54-77 (analysis and criticism of U.S. reservations, understandings and declarations).

The Difficulty of Obtaining U.S. Ratification of Multilateral Treaties

On December 4th the U.S. Senate once again demonstrated the difficulty of obtaining U.S. ratification of multilateral treaties.

The Senate that day voted 61 to 38 to give its Advice and Consent to U.S. ratification of the United Nations Convention on the Rights of Persons with Disabilities. This, however, fell six votes short of the two-thirds vote required by Article II, § 2(2) of the U.S. Constitution. This failure happened even though the treaty essentially adopted the terms of the Americans with Disabilities Act and was supported by all 51 Democratic, 2 Independent and 8 Republican Senators.

The 38 “No” votes were all cast by Republican Senators despite the support of the treaty by Robert Dole, the former Republican Majority and Minority Leader of the Senate and the Party’s presidential candidate in 1996,who was on the Senate floor in his wheelchair to garner support for the treaty.

Such Senate approval is only one critical step in the complicated U.S. procedures for such ratification. The following are the steps in that procedure:

The U.S. Government’s participating in the preparation of the treaty, including multiparty negotiation of its terms.
The President’s signing the treaty on behalf of the U.S. (This could also be done by another high-level official of the Administration.)
The President’s submitting the treaty to the U.S. Senate for its advice and consent under Article II, Section 2 (2) of the U.S. Constitution.
The U.S. Senate Foreign Relations Committee’s conducting a hearing on whether the Senate should give its advice and consent to ratification of the treaty, taking a committee vote on that issue and reporting the results of the hearing and the vote to the full Senate.
The U.S. Senate’s debating a resolution to grant its advice and consent to ratification of the treaty and voting by at least two-thirds of those Senators present, under Article II, Section 2 (2) of the U.S. Constitution, to do so.
The President’s submitting the U.S. ratification instrument to the person designated in the treaty as the recipient of such instruments; for multilateral treaties that is usually the U.N. Secretary-General.
For at least multilateral treaties, the passing of a stipulated amount of time after submission of the ratification instrument before the treaty goes into force for the U.S.[1]

The difficulty of completing all of these procedures, including the Senate’s granting its Advice and Consent, is also seen by the 17 to 19 years and five presidencies it took before the U.S. had ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and before the treaty went into force for the U.S.

Yet another example of the mountain that must be climbed for ratification is the inability to date to obtain a two-thirds Senate vote for Advice and Consent to ratification of the United Nations Convention on the Law of the Sea despite endorsement by the Pentagon, labor and business and three presidents (Bill Clinton, George W. Bush and Barack Obama).

Reacting to the Senate’s rejection of the disabilities treaty, the New York Times’ “Room for Debate” feature posed the question– “”Have Treaties Gone Out of Style?” Four people participated in this debate: David Kopel, Julian Ku, Catherine Powell and Jenny Martinez.

David Kopel [2] argues that the Senate was right to reject this treaty. In his opinion, it “was rife with flaws — requiring government at every level in the U.S. to spend ‘the maximum of its available resources’ on disabled services, granting Congress new powers to regulate private homes and personal behavior, and creating a new legal right to abortion, independent of Roe v. Wade.” Moreover, he said, “Efforts by senators to add reservations to address some of these issues were rejected by treaty proponents.” Finally he asserted that “even if the textual language in the treaty were perfect, the fact that the future meaning of the disabilities treaty will be decided by U.N. bureaucrats” supported U.S. rejection.

Julian Ku, [3] although generally skeptical of multilateral treaties like the one at issue this week, concluded that the stated fears of this treaty were unfounded. He said, the Obama Administration had “conditioned Senate approval on a ‘non-self-executing’ declaration that prevents any litigation under the convention in U.S courts [and] . . . added a federalism reservation that would prevent the convention from overriding inconsistent state law.” In addition, the Administration “added a ‘private conduct’ reservation that would prevent it from regulating nonstate [sic] actors, like parents or small businesses. Taken together, these limitations would indeed render the convention a legal nullity within the United States.”[4]

Supporting ratification of the treaty, Catherine Powell [5] said that the treaty “extends abroad the same basic rights Americans already enjoy at home,” [would strengthen] . . . disabilities rights for others,. . . [and] would have helped Americans who travel, live, work and study abroad, including our wounded warriors. It would also benefit American businesses that sell power wheelchairs and other adaptive technologies that assist people with disabilities.” According to Powell, the two asserted objections to the treaty were invalid.

“First, the claim that the treaty would lead to interference with home schooling is nonsensical. If anything it would expand educational opportunities. It defends autonomy, independence and choice for people with disabilities (including parents of children with disabilities), by prohibiting discrimination and interference in decisions.
Second, the claim that this treaty would threaten U.S. sovereignty is specious. . . . Ratifying the convention requires no change in our law and no new rights, and it cannot be used directly to bring lawsuits. No international organization, including the nonbinding advisory committee established by the treaty, can force us to do anything.”

Jenny Martinez [6] also rejected the sovereignty objection. This conception of sovereignty, she said, is isolationistic “that focuses on minimizing ties to the community of nations, rather than seeking to lead that community. But autonomy is just one meaning of sovereignty, and an elusive one at that in a globalized world economy. Sovereignty is also the power to make law, and sovereignty wisely exercised is the power to make good law.” Indeed, in “wiser moments, leaders of both parties have recognized that participation in international treaties that serve our national interests and reflect our national ideals represents an exercise of sovereign power, not a diminution of it.”

The Senate indeed has an important responsibility under the Constitution to ensure that U.S. entry into any proposed treaty is in accordance with the national and international interest of the country. Because adopted treaties, under the Constitution, are part of the supreme law of the land, The Constitution requires the Senate’s vote on such matters to be at least two-thirds. I regret that we are in a period where one of our major political parties has lost sight of the previous bipartisan consensus that our participation in multilateral treaties usually advances our national interest. Although the U.S. in many respects is the most powerful country in the world, it still needs allies and means to project its values and interests to others. Such treaties are one important way of doing just that.

[1] The same procedures are necessary for approval of bilateral treaties, but such treaties are less controversial.

[2] Kopel is the research director of the Independence Institute and an adjunct professor of law at the University of Denver and the co-author of “Firearms Law and the Second Amendment.”

[3] Ku is a professor of law and the faculty director of international programs at the Maurice A. Deane School of Law at Hofstra University and the co-author (with John Yoo) of “Taming Globalization, International Law, the U.S. Constitution, and the New World Order.”

[4] Ku argues that the Republican Senators should have saved their efforts for opposing Advice and Consent to ratification of the Law of the Sea treaty that will come before the Senate in the future.

[5] Powell is a visiting associate professor of law at Georgetown University Law Center (on leave from Fordham University School of Law) and former staffer on the Secretary of State’s policy planning staff and the national security staff in the White House.

[6] Martinez is the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law School and the author of “The Slave Trade and the Origins of International Human Rights Law.”

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.

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.

The Persistence of the Inquisition

The Inquisition was a phenomenon limited to fifteenth and sixteenth century Spain. Correct? Not so says Cullen Murphy in his new book, God’s Jury: The Inquisition and the Making of the Modern World and in the Atlantic Magazine’s excerpt of the book, Torturer’s Apprentice. So too does Adam Gopnik in a recent New Yorker essay about this and related books, Inquiring Minds: The Spanish Inquisition revisited.

As Gopnik puts it, the Inquisition is “an institution as deeply rooted in modernity as the scientific tradition that it opposed. Its fanaticism, its implicit totalitarianism . . ., its sheer bureaucratic brutality . . . make it central to who we are and what we do. Its thumbprint is everywhere. . . .” What happens at the U.S. base in Guantanamo Bay, Cuba is only one of the recent examples. Another example is the close parallels of the Spanish Inquisition’s interrogation manuals and the current U.S. manuals about “enhanced interrogation.”

Gopnik also criticizes scholars who allegedly delve into the minutia of the Spanish Inquisition and in the process lose the forest for the trees: Benzion Netanyahu (the father of the Israeli Prime Minister), Henry Kamen and Eamon Duffy.

According to Gopnik, history needs to be done with “historical imagination,” which is the “ability to see small and think big.” Without such imagination, the historian “risks a failure of basic human empathy.” For studying and writing about the Spanish Inquisition, this means, he says, that the historian must imagine “the horror of being burned alive.”

The persistence of the practices of the Inquisition unfortunately continues to be demonstrated by the news of the day. Minneapolis’ Center for Victims of Torture has treated over 23,000 victims over the last 24 years. A similar program at New York City’s Bellevue/N.Y.U. Program for Survivors of Torture recently reported that in its “20 years of examining torture victims, we have seen few as traumatized as the several Abu Ghraib, Guantanamo and black site (secret prison) detainees whom we evaluated.” And the European Court of Human Rights recently decided that under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the U.K. could not deport a radical Muslim cleric to Jordan because there was a “real risk that evidence obtained by torture will be used against him.”

We also have seen in the following prior posts the persistence of torture and the efforts to stop such conduct:

the negotiation and adoption of a multilateral treaty against torture (the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment);

the U.S. ratification of that treaty;

the U.S. first and second reports to the Committee Against Torture;

the U.S. adoption of the Torture Victims Protection Act (TVPA);

the U.S. federal court lawsuit under the TVPA over the torture, rape and murders of the four American churchwomen in El Salvador;

the civil liability for torture under the Alien Tort Statute in U.S. federal courts;

the criminal cases in Spain under the principle of universal jurisdiction against U.S. officials for alleged torture of detainees in Guantanamo Bay, Cuba and for authoring legal memoranda allegedly justifying torture;

the negotiation and adoption of the International Convention Relating to the Status of Refugees that has been interpreted to provide refugee status and asylum for victims of torture;

the granting of asylum to a Salvadoran for having been tortured in his home country and who came to Minnesota to be treated at the Center for Treatment of Victims of Torture; and

the jurisdiction over torture as part of crimes against humanity (Art. 7(1)(f)) and war crimes (Art. 8(2)(a)(ii), 8(2)(c)(i)) for the International Criminal Court and other international criminal tribunals.

As a result, eternal vigilance against torture is necessary. In the U.S., for example, various religious groups have banded together in a National Religious Campaign Against Torture. Its statement of conscience says, “Torture violates the basic dignity of the human person that all religions, in their highest ideals, hold dear. It degrades everyone involved — policy-makers, perpetrators and victims. It contradicts our nation’s most cherished ideals. Any policies that permit torture and inhumane treatment are shocking and morally intolerable.”

—————————–

Spain’s Criminal Case Against U.S. Authors of Legal Memoranda Allegedly Justifying Torture

Spain’s National Court (Audiencia Nacional) has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory.

On March 17, 2009, the Spanish Association for the Dignity of Prisoners filed a 98-page criminal complaint in the Spanish court against six officials of the George W. Bush Administration: (i) David Addington (former Counsel to, and Chief of Staff for, former U.S. Vice President Cheney); (ii) Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); (iii) Douglas Feith (former Under Secretary of Defense for Policy, U.S. Department of Defense (DOD)); (iv) Alberto R. Gonzales (former Counsel to former U.S. President George W. Bush, and former U.S. Attorney General); (v) William J. Haynes (former General Counsel, DOD); and (vi) John Yoo (former Deputy Assistant Attorney General, OLC, DOJ).

The six officials are alleged to have participated in, or aided and abetted, the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations, all in violation of international law, including violations of the Geneva Conventions and the Convention Against Torture.

On March 28, 2009, Judge Baltasar Garzon decided that the complaint met jurisdictional requirements and opened a preliminary investigation.

On April 16, 2009, Spain’s Attorney General raised objections to the continuance of the case, and the next day, Spain’s Public Prosecutor filed a request that the complaint be dismissed and responsibility for investigating the matter be referred to a different judge. The latter was done on April 23rd with Judge Eloy Velasco being assigned.

On May 4, 2009, Judge Velasco, pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, sent a formal request (Letters Rogatory) to the U.S. asking it to state “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.” If there had been an affirmative response to this question, the Spanish court undoubtedly would have closed its investigation.

Nearly two years later, on March 4, 2011, the U.S. finally responded to the Letters Rogatory. It stated that the U.S. had clear jurisdiction over the case and asking that the case be sent to the U.S. for further review and investigation.

On April 13, 2011, Judge Velasco temporarily stayed the case in Spain and transferred the case to the U.S. Department of Justice with a request for the U.S. to indicate the time frame for U.S. action on the complaint.

On April 19, 2011, the Spanish Association for the Dignity of Prisoners filed an appeal of Judge Velasco’s order staying the case. That appeal is still pending.

In summary, the case is still pending in Spain with unresolved issues.

In the meantime, the body responsible for monitoring compliance with the multilateral treaty against torture (the Committee Against Torture or CAT) has severely criticized U.S. treatment of detainees in the so-called “war on terrorism” and the U.S. purported legal justification of such treatment through so-called “enhanced interrogation” techniques.

Spain Invokes Universal Jurisdiction for Three Criminal Cases Against U.S. Officials and Soldiers

As discussed in a prior post, under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain has implemented this principle in its own domestic law and has invoked it in significant cases, including the attempt to prosecute Augusto Pinochet, the former President of Chile, for alleged human rights violations in his home country and Spain’s pending prosecution of former Salvadoran military officers for the November 1989 murder in El Salvador of six Jesuit priests and their housekeeper and her daughter (the Jesuits case).

We also have seen that torture is illegal under international law and that the U.S. is a party to the multilateral treaty against torture. As a result, the U.S. has submitted reports about its compliance with the treaty to a U.N. committee.

All of these elements come together in three pending criminal cases in Spain against certain U.S. officials for their alleged involvement in torture allegedly committed by U.S. citizens who were employees of the U.S. military or government:

One relates to the alleged use of torture at the U.S. detention facility at Guantanamo Bay, Cuba. It is directed at “members of the American air forces or military intelligence and all those who executed and/or designed a systemic torture plan and inhuman and degrading treatment against prisoners in their custody.”
Another case is against six members of the George W. Bush Administration who were involved in drafting legal memoranda that allegedly facilitated the torture of detainees at Guantanamo Bay and other U.S. detention facilities around the world (the so-called “Bush Six” case) .
The third case concerns the killing of a Spanish journalist-cameraman in Baghdad, Iraq on April 8, 2003, by a U.S. tank’s firing on a hotel where the man was staying.

Each of these three cases will be the subjects of subsequent posts.

On January 19, 2012, another front in these battles was opened with the filing of a complaint with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. On the basis of U.S. diplomatic cables released by WikiLeaks, the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights alleged that U.S. and Spanish senior governmental officials improperly have attempted to interfere with the judicial process in these three cases. This important development also will be discussed in a subsequent post.[1]

——————————————————————

[1] The issue of judicial independence under international law is currently being litigated in a case against Ecuador.