Today Fatou Bensouda, the International Criminal Court Prosecutor, released a draft Policy Paper on Case Selection & Prioritisation, and welcomed public comment. The paper’s aimed at “clarifying how the Office of the Prosecutor selects and prioritises cases after a decision has been made to open an investigation into a situation.”
The 16-page draft is available, in English and French, here; comments may be e-mailed to otp_spi@icc-cpi.int through Friday, March 18, 2016.
Monday was quite a day for child rights in the United States.
It began in the morning, when the Supreme Court made clear in Montgomery v. Louisiana that its 2012 ruling in Miller v. Alabama, which had outlawed sentences of life without parole for persons who were under eighteen when they committed the crime of conviction, applied retroactively.
Writing for the 6-member majority in Montgomery, Justice Anthony M. Kennedy stated that the 2012 decision in Miller
did more than require a sentencer to consider a juvenile offender’s youth before imposing life with out parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’ (p. 16)
As a result, he wrote, it established a “substantive rule of constitutional law,” the kind of rule that must apply even to persons whose cases otherwise would have been deemed final before the issuance of the 2012 decision.
according to Wall Street Journal reporter Jess Bravin, the decision granted “the possibility of freedom to as many as 2,500 inmates who otherwise would die in prison.”
Then, just 4 hours from midnight, the Washington Post published an op-ed in which President Barack Obama announced he had accepted recommendations in a new Department of Justice report; thus, inter alia, “banning solitary confinement for juveniles” in the federal prison system. The op-ed concluded on notes of promise:
In America, we believe in redemption. We believe, in the words of Pope Francis, that ‘every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.’
In that last sentence, notably, Obama quoted the September 2015 address to Congress in which Pope Francis called for abolition of the death penalty. The President’s op-ed continued:
We believe that when people make mistakes, they deserve the opportunity to remake their lives. And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.
A children’s day indeed.
Still, it must be noted that the solitary confinement ban applies only to the U.S. Bureau of Prisons. The DOJ report wrote at page 66:
The Department of Justice prosecutes very few juveniles, and so the Bureau is only responsible for the custody of a very small number of juveniles. As of December 5, 2015, the Bureau was responsible for 71 juvenile inmates, of which 45 were serving a term of incarceration, and 26 were under the supervision of the U.S. Probation Office.
Many thousands are in state correctional systems, and thus not affected by Obama’s decision.
And there is much yet to be done of a preventive nature, to help children from entering the juvenile justice system at all.
A favorite aspect of my new position is becoming acquainted with Georgia Law’s vast global community.
Yesterday was a special treat: We at the law school’s Dean Rusk International Law Center received a visit from an alum who is doing great work back home in the Democratic Republic of the Congo.
The alumnus is Mukendi Kabuya, who earned an LL.M. degree here in 2010. He’s now an attorney at Kinshasa’s Delt-August Law Firm, where his practice includes international investment, immigration, and business matters.
Last year, Mukendi co-founded a child-rights nonprofit modeled on the Court Appointed Special Advocate (CASA) program, where he used to work. CASA Democratic Republic of Congo is based in Kinshasa, but works throughout the country to provide in-court assistance to abused and neglected children – including children who have survived armed conflict and similar violence. This critical effort comes at a critical time: Congo’s juvenile justice system is very young. Before it was established, children found themselves relegated to the adult system.
While here, Mukendi, who is President of the Africa Chapter of the UGA Alumni Association, stopped by the university’s African Studies Institute. And he talked about his work and career with Georgia Law’s newest LL.M. students, who begin classes today. He’s pictured above talking with two just-enrolled students from Nigeria, Gladys Ashiru, at left, and Oluwakemi “Kemi” Kusemiju.
Looking forward to the next visit from this impressive alum.
Shocked and saddened to read that U.S. Navy Lieutenant Commander William Kuebler died from cancer on July 17, at age 44. (photo credit)
Bill’s representation of Omar Khadr, born in Canada and seized by U.S. forces in an Afghanistan battle, is recounted in an Ottawa Citizen obituary. I feel compelled to add my own recollection.
We met in December 2008, at Guantánamo. The occasion was the first set of military commissions hearings since November 4, 2008, when voters chose then-Sen. Barack Obama to become the next U.S. President. Because Obama had pledged to shut down GTMO, many of the lawyers, media, and observers aboard the chartered jet that took us to the U.S. military base at the southwestern tip of Cuba were calling this “The GTMO Farewell Tour.”
The week began with a failed attempt by Khalid Sheikh Mohammed and his codefendants to plead guilty to capital charges of masterminding the terrorist attacks of September 11, 2001. It ended with a hearing in Khadr – a hearing in which Kuebler proved himself a master of his craft. As I wrote at page 13 of my report for the National Institute of Military Justice:
‘Of particular interest was the effort of Navy Lt. Cmdr. William C. Kuebler (pronounced “keebler”), lead military counsel for Omar Khadr, to gain admission during this pretrial hearing of photos made during the firefight at which Khadr was captured. Kuebler argued that the photos would help the defense to make its case for compelling certain witnesses, whose testimony, it was said, would exonerate Khadr by indicating that he was buried beneath rubble at the time someone threw the grenade that killed a U.S. servicemember. The judge refused, and Kuebler went forward without the photos. But the dispute whetted the appetite of the media to see the photos, and some published a next-day story suggesting Khadr’s innocence.’
This understanding of the importance of public scrutiny, combined with an ability to inform the public even as a request was denied, illustrated Kuebler’s diligent representation of his client, Khadr – who, today, is out of prison and living in Alberta, Canada, released on bail while appeals are pending. “Khadr owes more to Bill than to any other advocate,” the Citizen obituary aptly states. And so we pause in his memory.
Amid this weekend’s reminiscences of the birth of the United States, I found much to ponder in one reading – not in English, but rather in French.
Entitled La démocratie dan les bras de Big Brother – that is, Democracy in the Arms of Big Brother – it’s the transcript of Le Monde journalist Franck Johannès‘ recent interview with a longtime colleague of mine, Mireille-Delmas Marty, emerita professor of the Collège de France de Paris. (photo credit; prior posts)
Delmas-Marty sounds a warning about the “downward spiral” that, in her view, has created an unwelcome “metamorphosis in criminal justice” in the years since terrorists attacked New York and Washington on September 11, 2001. 1st in the vortex was the United States, she says, and she fears that her own homeland, France – and, indeed, the planet – are following suit.
Contributing to this analysis, in her view:
► Characterization of terrorist acts as “exceptional” offenses, related to more to war than to ordinary crimes, coupled with the redefinition of unlawful association so that it may apply to “only one person,” without proof of actual association with another.
► Globalization of surveillance and “social control,” in an effort to predict offenses before they happen. Post-9/11, the United States moved from notions of preemption to notions of prevention, she notes. She argues that today the United States, and others, have moved further, to “prediction” – a shift that lends justification to confinement of persons deemed harmful, not only before they have been proved to commit an offense, but also after they have served postconviction sentences. She contends (all translations mine):
‘To lock up a human being, not to punish harm but rather to prevent harm, as if he were a dangerous animal, is in truth an act of dehumanization…’
► Persistence of nonstate actors that once would have been deemed exclusively “criminal organizations,” but now are seen as parties waging armed conflict. Not long ago, Al Qaeda dominated this discourse; today, it is “the so-called ‘Islamic State.'” Delmas-Marty continues:
‘With whom is a treaty of peace to be concluded? We now have all the ingredients for a global, and permanent, civil war.’
Among Delmas-Marty’s recent books is Libertés et sûreté dans un monde dangereux (2010). In the Le Monde interview, as in that book, she calls for restoring a balance between desires for security and the value of liberty. (It’s a balance that I’ve explored in my own writings, including “Punish or Surveil” (2007).)
“To dream of perfect security,” Delmas-Marty maintains, is an “illusion.” She allows that “[i]n the name of the struggle against terrorism, there can be restrictions on the right to respect for privacy,” yet she would require that such restrictions themselves be constrained in accordance with the principles “of legality, proportionality, and democratic control.”
Much to ponder as the United States begins its 240th year of democracy.
This week has marked the 66th anniversaries of 2 watersheds: on Tuesday, the U.N. General Assembly’s adoption of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, and on Wednesday, the same assembly’s adoption of the 1948 Universal Declaration of Human Rights. Together, they form 2 essential pillars of post-World War II human rights and human security.
This week also marked the release, on Tuesday, of the 524-page executive summary of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program – a study that, in full, spans 6,000 pages.
I was honored by an invitation to contribute my thoughts on the release of this so-called Torture Report to The New York Times‘ online Room for Debate forum, and so on Tuesday published an op-ed entitled “Officials Must Be Held Responsible for Torture.” Joining me in this forum were Hina Shamsi of the American Civil Liberties Union, Danielle Pletka of the American Enterprise Institute, Georgetown Law Professor David Luban, and Texas Law Professor Robert Chesney.
My own op-ed referred to structures of accountability common in the international arena; that is, truth commissions or commissions of inquiry. In this context, I saw the committee report as a step toward establishment of an historical record, yet advocated the pursuit of two additional pillars of accountability: a comprehensive analysis of aimed at reforming laws and institutions that permitted torture to occur, and Department of Justice investigation of the matter, with prosecutions to follow as appropriate. With regard to the latter, I wrote:
‘And those prosecutions must occur in courts of the United States. If they do not, indictments of Americans by other countries, or by international tribunals, must be expected.’
As a consequence of that op-ed, yesterday I joined American University Law Professor Steve Vladeck and Security Studies Professor Sebastian Gorka of the National Defense University, on a live segment of the Al Jazeera English program “Inside Story,” hosted by Ray Suarez. No public link’s available; suffice it to say that the spirited discussion included my reiteration of the need for 3-pillar accountability, as indicated below:
While most of us Stateside were making ready for last week’s Thanksgiving holiday, an overseas American was issuing a remarkable ruling against solitary confinement conditions in the South Pacific island Republic of Palau.
The November 25 order captioned In the Matter of McClain Angelino for a Writ of Habeas Corpus granted the sought-after writ. What is more, the ruling, by Associate Justice Ashby Pate, condemned the entire solitary confinement system in Palau’s Koror Jail. (photo credit) The order concluded:
‘Although the Court recognizes that its particular jurisdiction here is confined within the four corners of this particular Petitioner’s Emergency Application for Writ of Habeas Corpus, the Court strongly urges and recommends the Director of the Bureau of Public Safety, the Warden of the Koror Jail, and all those acting on their behalf, to immediately CEASE AND DESIST from the use of the solitary confinement quarters FOR ANY REASON, until such time as the facility is equipped to be operated in a humane and constitutional fashion and reviewed by a competent constitutional authority….’
Palau was a U.S. trustee state in the post-World War II period. Since achieving independence in the mid-1990s, the Republic of Palau has maintained 1 U.S. appointee among the 4 members of its the Palau Supreme Court. Pate has served in that capacity for about 2 years; I met when he spoke here at Georgia Law shortly before leaving his law practice in Birmingham, Alabama, to take up the post.
The case to which Pate was assigned as trial judge, Angelino, arose out of a complaint filed by petitioner, “a 19-year-old male” who “could easily pass for … 13 or 14” — a “child,” as the ruling calls him, “at most 5’3 tall and .. at most 120 pounds.” The petitioner had “been incarcerated off and on at least since he was 14 years old for various assaults and burglaries, as well as at least two unsuccessful escape attempts,” and had psychiatric problems that an expert witness said might’ve been exacerbated by conditions of prolonged solitary confinement.
To test petitioner’s claims, Justice Pate conducted a site visit. He pulls no punches in his 1st-person description of solitary (used, as he explains, because the jail is so old that even young, weak, tiny prisoners like petitioner can otherwise escape pretty much at will):
‘…I was in a room of near total darkness, illuminated only by the diffuse light coming from the open door behind us. There was no light bulb in the only exposed and broken socket set in the ten-foot ceiling, and the hard concrete floor was strewn with trash, what appeared to be broken glass, dank wet magazine pages, and soiled clothes. The stench of urine and feces was overpowering. There was no sink, no toilet, and no ventilation other than a small grated opening in the iron door, no bed or bedding, no light, and no drain.
‘…As the door closed, the heat and the stench combined were so overwhelming that I had to resist the urge to physically be sick. After the door closed, at least eighty-percent of the cell was in total darkness, and only a pale column of diffuse light came in through the narrow grating in the iron door, and that was only because the door to the outside remained ajar as a result of our visit.
‘…The sounds from the outside, prisoners murmuring and clanging doors, weirdly reverberated in the confined space, as they would in an echo chamber. The effect was a disorienting combination of utter sensory deprivation, at least with respect to vision and touch, coupled with a nauseating sensory overload of putrid smell and booming sound. After approximately one minute, I asked to be released.’
Pate’s ruling declared the conditions of confinement violative of Article IV § 10 of the Palau Constitution, which states:
‘Torture, cruel, inhumane or degrading treatment or punishment, and excessive fines are prohibited.’
Citing Palau case law, Pate found as the source for that prohibition the 1948 Universal Declaration of Human Rights, and so examined international human rights law. Mentioned were, inter alia, customary international law, a 2011 U.N. report, U.N. Standard Minimum Rules for the Treatment of Prisoners, commentary by the U.N. Committee Against Torture, and jurisprudence of the European and Inter-American human rights courts. His bottom line:
‘[T]he conditions in the solitary confinement quarters of the Koror Jail fail to meet even the minimum standards of internationally recognized human decency, and … flagrantly violate Petitioner’s constitutional and human rights.’
The order is an impressive national-court application of international human rights norms. Look forward to learning more of the state’s response to this condemnation of its incarceration practices.
In this month that marks the centenary of World War I, the U.S. Supreme Court evoked an epic image of that global conflict. Thus was rejected today the prosecutorial conflation of chemical warfare with what the Court in Bond v. United States called an “unremarkable local offense.”
The image is the one above: John Singer Sargent’s 1919 painting, Gassed. Fully 20 feet wide and 7-1/2 feet tall, it hangs in the Imperial War Museum in London. (image credit) Writing for a 6-member majority, Chief Justice John G. Roberts, Jr., described the scene, one that Sargent had encountered in 1917 on a battlefield in France:
‘[T]wo lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.’
The tragedy, Roberts wrote, contributed “to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings” – a consensus reflected in instruments like the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which today has 190 parties. Among them is the United States, which, Roberts explained, “gave domestic effect” to the obligations it had assumed under that treaty in 1998, when it passed the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229 et seq. The statute makes the use of “chemical weapons,” a federal crime, punishable by death if the use resulted in death. It “‘goes without saying,'” Roberts concluded, that Congress had in mind tragedies along the lines depicted above – or at least as grave as the mid-1990s sarin gas attacks in Japan. He deemed well out of Congress’ mind the facts at bar: “an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”
This overturning of a federal conviction on federalism grounds did more than give perspective on the acts under review. It also avoided the asked-for reconsideration of Missouri v. Holland (1920), a precedent nearly as old as Sargent’s painting. There a unanimous Court upheld a federal statute that gave domestic effect to a 1916 treaty by regulating the hunting of birds that fly between the United States and Canada. Invoking the Constitution’s treaty-making and supremacy clauses, Justice Oliver Wendell Holmes, Jr., wrote:
‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.’
Holmes’ terse reasoning invites questions, many of them bruited about in the months since the Court announced it would review the decision below in Bond. (See, for example, this article by my Georgia Law colleague Harlan Cohen.) Roberts’ majority opinion declined, but 3 Justices who disagreed with him accepted that invitation. “[T]he Treaty Power is itself a limited federal power,” Justice Clarence Thomas wrote in a concurrence-in-the-judgment that Justices Antonin Scalia and Samuel Alito, Jr., joined. In another concurrence-in-judgment Scalia, joined by Thomas, attributed others’ reluctance to revisit Holland to the nature of the case. “We would not give the Government’s support of the Holland principle the time of day,” they insisted, “were we confronted with ‘treaty-implementing’ legislation that abrogated the freedom of speech or some other constitutionally protected individual right.” Whether they are right remains a question for another day.
My colleague Beth Van Schaack, newly returned to academia after a stint as Deputy at the State Department’s Office of Global Criminal Justice, has posted at Just Security on what the presence of 11 International Criminal Court states parties on the U.N. Security Council could mean for ICC-Security Council relations.
In the past, states parties like Guatemala have used their seat to sponsor ICC discussions at the Council, she writes, and notes that the newest member will hold the Council presidency next month. That would be Jordan, whose Permanent Representative, Prince Zeid Ra’ad Zeid Al-Hussein, has worked for years on ICC issues and has served as President of the ICC Assembly of States Parties. (credit for 2009 photo of Council in session)
One nagging problem for the Court has been state noncompliance with ICC orders – in particular, of arrest warrants for fugitives like Sudanese President Omar al-Bashir – and to date the Council has done little to command compliance by U.N. member states. Another, Van Schaack writes, is the Council’s withholding of sanctions against persons accused by the ICC. Yet another is the resolution boilerplate by which the Council:
► 1st, declined to contribute funds to aid the investigation and prosecution of the Libya and Darfur situations that it referred to the Court; and
► 2d, immunized any national of a ICC nonparty states (read the United States) from ICC investigation, even if the national were suspected of committing ICC crimes in the referred situation.
(And see here.) In theory, the large presence of states parties could change these dynamics. Or not: Van Schaack writes of criticism that states “‘forget’ that they are ICC members when they are elected to the Council.”
And there is also the matter of the Council’s 4 members who are not ICC states parties, China, Rwanda, Russia, and the United States. Their attitudes toward the ICC range from ambivalent to downright hostile, and 3 of them are permanent members able to veto Council resolutions. Van Schaack indicates that this may have contributed to a “zeitgeist,” an opening for the proposal that the Council ought not veto measures aimed at stopping atrocities. As I detailed in An old new idea to break P-5 impasse, the idea’s been around for more than a decade, but gained new steam when France, a Council permanent member, embraced it this autumn. The other P-5 ICC state party, Britain, has yet to weigh in.
Two Justices of the U.S. Supreme Court have signaled a willingness to reconsider precedent that permits state judges to impose the death penalty even after the jury has voted for a lesser sentence.
The signal came yesterday in a dissent from denial of the petition for certiorari in Woodward v. Alabama, No. 13-5380. The dissent’s author, Justice Sonia Sotomayor, wrote (citations omitted):
‘In Spaziano v. Florida (1984), we upheld Florida’s judicial-override sentencing statute. And in Harris v. Alabama (1995), we upheld Alabama’s similar statute. Eighteen years have passed since we decided Harris, and in my view, the time has come for us to reconsider that decision.’
Joining her in that estimation was Justice Stephen G. Breyer, who’d voted with the majority in Harris. (credit for Washington Post photo of Breyer and Sotomayor) Indeed, in that 1995 judgment, all the Justices then on the Court voted in favor of the state – all except Justice John Paul Stevens, who dissented in both the precedents Sotomayor named. Quoting Stevens’ dissent in Harris, she wrote:
‘Alabama judges, it seems, have “ben[t] to political pressures when pronouncing sentence in highly publicized capital cases.'”
Supporting that conclusion was evidence in the Woodward record of state judges’ admissions that re-election worries may have motivated them to override jurors who, after balancing mitigating and aggravating circumstances, had voted for life imprisonment and against capital punishment. Fully 95 Alabama defendants have received death sentences in such a way, wrote Sotomayor, appending the list of those defendants to her opinion. In the last 13 years, “there have been only 27 life-to-death overrides, 26 of which were by Alabama judges,” Sotomayor added, commenting:
‘As these statistics demonstrate, Alabama has become a clear outlier.’
Whether the judicial-override sentence will go the way of 2 others Sotomayor cited – death penalties for juveniles and for mentally retarded persons, both no longer deemed constitutional – remains to be seen.
Diane Marie Amann 
