The thematic week prompts me to explore the role of international law in the American law school setting. Although the curriculum of law schools in the United States has traditionally offered a narrow focus on domestic law, it has slowly expanded over the last century to include an international focus, albeit a limited one.   While this development can be seen most readily with the proliferation of foreign exchange programs such as Marquette Law School’s own summer program in Giessen, Germany, it also appears through the positioning of international law classes in the curriculum of traditional legal education.

Since the mid-century, it has become common for law schools to sprinkle course listings with upper-level and elective classes in international law. 

More recently, some law schools have gone as far as requiring students to take international law as part of the standard core curriculum.  Michigan Law School took the lead in this direction by requiring students to take a full course that incorporates aspects of private, public, and comparative international law.  A handful of law schools, such as Columbia Law School and the University of Wisconsin School of Law are making international law an elective available to first-year students, thus providing them with a foundation for gaining a more profound mastery of the subject in upper class courses.

Yet, at the turn of the last century, few law schools even taught international law classes.   Responding to this exclusion, Columbia Law Professor James B. Scott is credited for taking the lead in pushing for the inclusion of international law in the law school curriculum, becoming “well-known among his contemporaries as a leading spokesman for a new and important discipline.”

Nonetheless, to accomplish his mission, Professor Scott first had to prove that international law was really “law” at all, and not just morality.  Certainly, legal positivists and proponents of the Austinian theory of law argued that the international system had no identifiable sovereign law-maker who could also guarantee enforcement.  Interestingly, Professor Scott’s first line of defense relied on our very own United States Constitution, which gives Congress through Article 1(8) the power to define “offenses against the law of nations” and recognizes “treaties” in the Supremacy Clause of Article 6.  Scott then discussed the new line of cases (that is, new at the time Professor Scott wrote his appeal in 1903) in which the U.S. Supreme Court gave deference to international law, like the Charming Betsey (1804), Paquete Habana (1899) and Smith (1820) cases.  He then declared:  “It is submitted that this case settles the question for an American lawyer . . . that international law is law; that it is part of our municipal law; that our courts take judicial notice of it as such.  It should, therefore, find a place in a lawyer’s education.”

Professor Brunson MacChesney of Northwestern University Law School, writing in 1965 about the school’s required class in international law — a novelty for its time — remarked in his article “International Law: the Utility of its Study as Preparation for Law Practice”: 

Although international law was part of the stock in the trade of those founding fathers of our country, who were lawyers, it seemed to get lost in the expanding growth of the continent in the nineteenth century.  It did not get lost literally, but the average common lawyer tended to consider it as a somewhat esoteric specialty not related to his daily concerns. (36 Miss. L.J. 171 1965)

Fast forwarding, today advocates of international law no longer need to prove it is “real” law.  Instead, they benefit from the argument of necessity.  For example, Michigan Law School’s rationale for making it a required course rests on the belief that “every lawyer should know about law beyond the domestic ( American) orbit in order to be qualified for practice in an age in which virtually every area of law is being affected by international aspects.”

Indeed, a quick survey of law review articles dealing with the mainstreaming of international law in legal education base their case primarily on how globalization has “internationalized” almost every area of life.  The movement of goods, people, and service and changes in technology and communication make transnational interdependence, contact, and cooperation a commonplace occurrence.   To stay competitive, trade and business must go global.  Since all these matters touch some aspect of law, we then, by necessity, must prepare new lawyers for today’s reality.

This impetus to reorient legal education has encouraged conferences and meetings to grapple with how to adapt the “parochial” American law school to grow into the shoes of this new worldly “cosmopolitism.”  For example, in 2007 the University of Helsinki Faculty of Law and the Academy of Finland Centre of Excellence in Global Governance Research convened a meeting of the European-American Consortium for Legal Education (EACLE).  An array of European and American academics contributed to a thematic volume of the journal Ius Gentium aptly titled “The Internationalization of Law and Legal Education.”  One of the volume’s editors Mortimer Sellers, Professor at the University of Baltimore School of Law and Director of the Center for International & Comparative Law, explains that EACLE arose in response to the “world-wide phenomena” of the “internationalization of law.”

In attendance at the EACLE conference, Professor Larry Catá Backer of Penn State Dickinson School of Law warns in a foreboding tone:

Law schools that fail to conform their educational mission to the realities of law and the practices of the great global legal actors — merchants, immigrants, communities, nongovernmental organizations, economic entities, banks and other users of legal services — will find themselves playing a limited role in the future of the development of law and the production of law and lawyers for the global marketplace.

The late Mary C. Daly, former dean of St. John’s University School of Law, took a more direct tactic and scolded the law academy:

Given the inescapable march of globalization and the pervasiveness with which the law permeates the U.S. society, law schools have a unique obligation to prepare their graduates to practice in a global environment.  It is unfortunate for the students and disastrous for the country that most law schools have failed so miserably. (“Law Schools’ Shameful Neglect of the Transformative Effect on Globalization on the Practice of Law”, Paper for the ABA Section on Legal Education: Out of the Box Committee, 2001).

This “shameful failure” points, in part, towards a still-existing debate on whether international law really figures as an essential part of a lawyer’s education (despite of or perhaps because of its slow evolution in that direction). 

This debate came to a head (not surprisingly) on cyberspace.  

In September 2009, Professor Duncan Hollis of Temple University’s Beasley School of Law posed the question on the blog Opinio Juris of whether 1Ls should be required to take international law.   University of Chicago Law School Professor Eric Posner, who both teaches international law (as an elective first-year course) and serves as one of its biggest critics, responded with a resounding “NO!” 

Posner explains that only a handful of students would ever need international law, but “the chance that [a law student] will encounter the type of issue taught in a public international law course over the course of your career is close to zero.”  He then takes the dagger and plunges deeper, contending that the recent trend to mainstream international law does not

rest on any coherent theory of pedagogic priorities. They are marketing gimmicks that play off buzzwords like globalization. They do little more than reflect transitory intellectual fashions. They are patronizing efforts to turn you into citizens-of-the-world. If you have time on your hands and want to learn something that might increase your value to future employers, take statistics! 

Is international law just a passing fashion (even though introduced by Professor Scott at the turn of the century), or do advocates for mainstreaming international education have their finger on the pulse of legal education’s “tipping point” of transformation? (By the way, this same debate occurred on prawfsblawg in 2006.)

Hollis questions the “utility” approach to legal education proposed by Posner. As one commenter to the post remarked, “The same could be said of most of what’s mandatory in 1L year. I’m still waiting for my rule against perpetuities litigation.”  But that rebuttal aside, Hollis poses to the world (cyberspace world, that is) the question of whether international law really has “as small a footprint” as Posner suggests.  Do people in “more traditional domestic practices” find they really do not deal with international legal issues EVER?  Moreover, is it really true that “types of public international law concepts that might come in handy for a law firm lawyer — such as treaty interpretation — are easily picked up,” as argued by Posner?

Having myself always practiced in the international arena, I cannot fairly answer this question.  So I recently asked a recent MULS graduate working at a large Milwaukee firm if international law is relevant to private firm practice. She gave me a resounding “yes”.

So perhaps we go back to the beginning.  As one earnest commentator posted in response to Posner: “B-b-b-but isn’t international law on equal footing with the Constitution??”  So, I suppose only time will tell whether the forefathers had it right after all.

“That’s the way to go,” said Feingold, who has been highly critical of the long confinement, without trial, of the suspects at the military prison in Guantanamo Bay, Cuba.

At the same time, US Attorney General Eric Holder Jr. announced that several other suspected terrorists will be tried in military courts. That group includes Ad Al-Rahim al-Nashiri, who allegedly planned another major attack, the bombing of the Navy destroyer Cole in 2000 in Yemen.

The decisions to go the two different routes in the cases will provide an interesting opportunity to compare civil and military handling of cases of this kind, Feingold told Mike Gousha, who moderated the session and who is a distinguished fellow in law and public policy at the Law School.

Feingold said bringing the Sept. 11 suspects, including Khalid Shaikh Muhammed, who has claimed he masterminded the attacks, into civil courts and allowing the justice system to proceed to a verdict on their cases is the appropriate course, said Feingold, a member of the Senate’s Judiciary Committee. “This advances not only our legal system, but our credibility in the world,” he said.

Feingold said that he is an opponent of the death penalty, but, “If there is a place where the death penalty should be administered, it is probably this case.” The bombings of the World Trade Center and the Pentagon and lethal crash of a commercial flight in Pennsylvania killed almost 3,000 people.

Feingold praised President Barack Obama for the way he is handling decisions about the future of military involvement in Afghanistan. Feingold said Obama was right to take his time and to consider all options, including a plan for phased withdrawal that Feingold has advocated. Several months ago, Feingold became the first senator to back such a plan. But he said Obama appears to be taking the possibility seriously.

“Why is it we are continuing this huge land war in Afghanistan?” he asked. “It doesn’t add up.” He said al-Qaeda has moved its bases out of Afghanistan and he does not think an end to American military involvement would mean a return of al-Qaeda power in the country.

Addressing other subjects, Feingold said:

• He hopes a health care plan can be passed by Congress by the end of January, but it is “impossible” that action will be completed this year. He emphasized his support for a “public option” in a health care plan, a system in which a government-run plan would provide insurance to some people. He said, “It would be very hard for me” to support a bill that did not include such an option.
• If Chief Justice John Roberts comes down strongly in favor of overturning a 1990 decision (Austin v. Michigan Chamber of Commerce), “it will be one of the greatest lawless acts by a chief justice in the past 100 years.” A decision is expected soon in a case (Citizens United v. Federal Election Commission) that has become a broad review by the court of federal election laws, including the Austin decision, in which the court ruled 6-3 that it was constitutional to prevent corporations from spending their own money on political campaigns. Feingold said that during confirmation hearings in 2005, Roberts said he would be an umpire calling balls and strikes and would not make law himself. Feingold voted to confirm Roberts, drawing the ire of many liberals. Asked after his talk whether he would regret supporting Roberts if Roberts votes to overturn Austin, Feingold said such a step might give him “a moment of significant regret.” But he said that would depend not only how Roberts votes, but what he writes in support of his vote.
• A two-year program of tax credits to companies who create jobs or increase employees’ hours could create several million jobs and help the economy nationwide. Feingold said he saw a major part of his role in dealing with economic issues as advocating for such a plan.
• Immigration reform is an urgent issue, but he does not see federal action coming until “maybe late next year.”
• Development of a five- to seven-year plan to bring down the federal deficit is both responsible and necessary for economic recovery. Feingold said the deficit “is almost an obsession of mine in the Senate,” and he sometimes finds himself voting with the most conservative Republicans because of the need to exercise more restraint on federal spending.

Feingold ducked commenting on one major Wisconsin issue. Asked whether he had a position on a proposed transfer of power over Milwaukee Public Schools to Milwaukee’s mayor, he said that it isn’t a federal issue and he isn’t going to get involved.

He also said he wasn’t making an endorsement in a potential Democratic primary for governor in 2010, but “I think the world of Tom” Barrett. Milwaukee’s mayor is expected to announce whether he is running for governor in the next several days. “I would have no hesitation supporting Mayor Barrett for any office he wants to run for, other than running against me in a primary,” Feingold said.

Feingold’s visit to the Law School was part of the “On the Issues” series led by Gousha. About 150 people attended the session.

It is amazing in retrospect that the Wall came down without violence – this is not to say that there was not plenty of violence keeping it up all those years – but, when it finally came down, it was ordinary people with pickaxes.  And perhaps that is why this anniversary is celebrated with such joy – and a really cool artist’s exhibition of dominos placed on the original site of the wall.  It did not take an invasion, it did not involve a shoot-out or tanks or civilians being hurt – the government finally acknowledged that the divide could not, and should not, be sustained.

Berlin Wall Dominos 

Cross posted at Indisputably.

For example, while in Peru I received a grant from the Ford Foundation to conduct research on the right to mental health for survivors of the country’s internal armed conflict.  In the course of the study, I interviewed many government officials, advocates from non-governmental organizations and ordinary citizens.  None of these people questioned the basic premise of my study which was that health is a human right, as enshrined in international treaties such as the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 

Article 12 of the ICESCR provides that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Covenant has been ratified by 160 countries in the world, but not the United States.  The 1946 Constitution of the World Health Organization (WHO) recognizes that the right to health is a fundamental right “without distinction of race, religion, political belief, economic or social condition.”  Significantly, the United Nations General Assembly (composed of representatives from 192 member countries adopted a resolution in 2003 reaffirming the right to health.

Professor Eleanor D. Kinney, Co-director of the Hall Center for Law and Health at Indiana University School of Law conducted a study in 2004 found 67.5% of countries to include the right to health  in their national constitution.  The United States is the only industrialized nation in the world not to guarantee access to health care, through universal health care, as a right of citizenship.   

Given this global recognition of the right to health, I often wonder why Americans seem so afraid of moving in this direction and catching up with our peers.  Why is health reform so controversial? 

Is it the cost?  Maybe, except we permit millions of tax dollars to be spent daily on bank bail-outs, wars in foreign countries, emergency aid for developing nations, and even stimulus money to build our national infrastructure like highways and bridges.   One estimate puts the health reform cost at $1.05 trillion over 10 years, which is almost as much as we will spend on the wars in Iraq and Afghanistan by 2010 ($1.3 trillion).  However, since health costs currently outpace the growth of the economy, this initial up-front investment would lead to long term savings.

Is it a misunderstanding of what universal means?  People often believe that the right to health means everyone will be able to demand perfect health — the “right to be healthy.”  But the ICESCR recognizes that the right to health is subject to “progressive implementation” and strives towards a minimum acceptable baseline that is attainable.

Is it a mistrust of government?  Some speculate that health care access and quality will decline if there is universal health care.  But more and more reports on comparative systems in places like Canada, France, the United Kingdom and Germany are debunking this claim.  National Public Radio covered the story of one American middle aged couple had to move to Mexico because his childhood polio problems prevented him from working, and she was denied coverage because she survived cancer twenty years ago—they literally could not afford to stay here (even though he was a retired military officer).  Once in Mexico, they were enrolled in the government health plan (which is tax dollar funded although the couple paid a few hundred dollars annually).  They reported that the care was “excellent.”

Is there an unwavering belief in the free market?  Perhaps, but it seems that leaving universal health care to the market is not working.  According to the U.S. Census Bureau, nearly 47 million Americans, or 20 percent of the population under the age of 65, were without health insurance in 2008.

Some opponents to a government response to this market failure accuse the administration of being socialist.  This reaction really confuses me given that we seem to accept that certain public goods are so essential to our national well-being that the government involvement makes sense: public schools, national highways, police and fire fighters, libraries, to name just a few.  Are we then already a socialist country?

But to get clarity on this last issue, I asked my Chilean colleague Professor Pablo Contreras, while he was here during the student exchange with Hurtado University  how it is that his country has been able to sustain political support for a universal health care system.

I began, “Chileans don’t worry that it is socialist?” 

Certainly, Latin America was the Cold War’s physical battlefield.  General Pinochet, himself, ruled Chile with an iron fist for seventeen years as part of his crusade against communist leftist groups.  People still suffer the loss of their loved ones who were disappeared, tortured and killed as a result of this internal war.  So I figured that if anybody might be spooked by expansive government programs despite their thriving capitalism, wouldn’t it be the Chileans?

I was wrong.

As he explained, “Despite the fact of the political differences, there is a consensus in order to secure some minimum living standards. There is, of course, disagreement in the way that the State applies this particular public policy but that hasn’t been an obstacle to develop an intelligent system to secure minimal health standards. In some way, it’s a correction of capitalism.”

The Chilean approach begins with the principle that health is a human right.  But it is also practical. To compete in a global market, they understand that universal education is not enough. Certainly, a well educated—but sick—person is not productive.

Could our resistance to universal health care be simply a matter of ideology?  America–the land of opportunity— assumes a self-reliant folk will pull themselves up by the bootstraps Horatio Alger style.   We don’t tolerate “free loaders” and “system abusers” (not my words, but rather terms I heard used recently by opponents of the proposed health care reform). 

But hold on.  Aren’t the millions of people without insurance just like you and me? Maybe you have once been without insurance, or know someone in that situation?  They are usually ordinary citizens who followed all the rules, tried to be contributing and upstanding members of society—but alas, their bootstraps snapped.   You can hear their stories on National Public Radio: self employed, just out of college, excluded because of a previous medical condition, recently unemployed, retired but too young for medicare….the list goes on.  They were denied insurance or could not afford insurance which de facto translates into their having no access to health care.      

Insurance, of course, is a business that makes decisions based on the bottom line and not from the perspective that health is a human right (“human”, i.e., living organism that needs health to survive or will die).  Yet, somehow our national debate is not about access to quality health-care facilities, goods, services and programmes (the United Nations standard) but rather mandated access to health insurance, with a possible government option that will compete with the private sector.   It seems the market has trumped our rights in directing our national debate.

So now I am wondering:  what will be the consequence for those families who defiantly choose to put their precious resources towards essentials like food and housing instead of paying their monthly insurance premiums?   Isn’t there a reason why they can’t afford insurance now?

The ideological starting point of our national health reform debate could lead to some rather strange outcomes.  As the world looks on puzzled, they may be wondering if Horatio will ever repair his bootstraps.

Anyway, if you followed those posts with any interest, or if you are generally interested in the experience of refugees, then you may want to review the recently-released report from The Advocates for Human Rights, entitled A House with Two Rooms: The Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project.  (Confession: as previously disclosed, I worked for the Advocates during and after law school, and I think it’s a terrific organization.)

A House with Two Rooms reports the findings of the Diaspora Project portion of the TRC’s work, which collected information about the experiences of the Liberian diaspora during the Liberian wars, during their flight from Liberia, and in the countries in which they resettled.  Amazon summarizes it this way:

From 1979 to 2003, more than 1.5 million Liberians were forced from their homes to escape civil conflict. Hundreds of thousands became refugees and many eventually made their way to countries of resettlement including the United States. Most of their stories have never been told. This report on the experience of the Liberian diaspora, entitled A House with Two Rooms, documents the experience of human rights abuses and violations of international humanitarian law that forced Liberians to leave the country. It is based on an analysis of more than 1600 statements, fact-finding interviews, and witness testimony at public hearings held in the U.S. The report also tells the story of the “triple trauma” experienced by members of the diaspora during their flight through Liberia and across international borders, while living in refugee camps in West Africa, and in resettlement in the U.S. and U.K.

I reviewed the Executive Summary and some of the interior chapters.  I am a little ashamed that I can’t stand to read much more of it right now, because it reminds me too much of what I heard from Liberian refugees during the period in the late 1990’s when I worked with refugees. The atrocities of the wars in Liberia were beyond what I ever imagined human beings could do to each other, until I heard it for myself. If you care to read a representative story, here is one from the Executive Summary, at pages 10-11.  (Or, just take my word for it that it’s terrible, and skip over the block quote.)

At the initial stages of the war, I moved to Ninth Street in Sinkor, Monrovia… The children were outside cleaning the yard. Suddenly they ran inside and said that they saw armed men coming. Moments later, Taylor’s men busted in. One of them said, “This is the dog I’m looking for.” He told us to come outside. Myself, my ten children, and my wife obeyed. The NPFL [commander] knew me…He had run against me in an election…before the war. He said to me, “You cheated me during the election, but now I am in power. I will teach you a lesson you will never forget.”

He told his NPFL boys to take my eldest daughter into the house. She was thirteen years old. They dragged her inside and dragged me in after her. [The commander] raped my daughter in front of me. My father (my daughter’s grandfather) was still in the house. He rushed at the NPFL men, trying to stop the rape. One of the men – I don’t know his name – shot and killed my [father] right there. [The commander] then brought me and my daughter back outside. He said, “I’m going to show you what I came here for.” He beat the children with the butt of his gun. He made two of my sons, who were seventeen and twenty, drink dirty water with the urine of one of the NPFL men in it. When the twenty year old refused, he shot him in the foot. [The commander] stabbed my other son, who was eighteen, in the elbow with his bayonet.

He then began to beat my wife. He told her to lay on her back and stare at the sun. [The commander] said, “You will eat your husband’s heart very soon.” He took the daughter who had been raped. [The commander] held her and said, “I want you to know how you all will die.” He ordered one of his men to cut off my daughter’s head. She was beheaded in front of our eyes. They dragged me over to lay beside her body. [The commander] said, “You will be the next one.”

Then I heard heavy shooting. ECOMOG was coming. The NPFL scattered. Before [the commander] left, he made a remark. He said, “Anywhere in Liberia I meet you or your family, I will kill you.”

I do not know how human beings like the man who lived through that experience go on with their lives, but thousands of them do, thousands of them right here in the United States.  When I was practicing refugee law and hearing these stories, I was focused on how to help each individual, and didn’t take much time to think of the larger picture of how the refugee and asylum law systems function (or do not).

Since I began teaching refugee law here at Marquette, I became more aware of the strange gulf (strange to me, anyway) between the fields of transitional justice, which, as I understand it, seeks to help societies that are in the process of recovering from or transforming after widespread human rights abuses, and refugee law, which seeks to provide refuge from those fleeing the abuses as they occur.

It is striking that, as far as I know, this Diaspora Project is the first time that a Truth and Reconciliation Commission has sought, methodically and purposefully, on such a large scale, to obtain information from the ones who fled the horrific violence and resettled elsewhere.

It seems to me that such interviewing of refugees should be a standard part of providing for their needs and giving them refuge.  And that it should be done at the time they are fleeing, not (or at least, not solely) years afterwards.  Not only because having their stories heard and believed is part of what they need, for healing, but because the evidence they could provide would be ammunition for investigating and, perhaps, stopping the human rights abuses as they occur, or even preventing them.

If you want to know more about the stories of the incredibly resilient, inspirational Liberian diaspora, a House with Two Rooms is available for purchase on Amazon or from the Advocates by mail.  It is also available for free download (in sections) on the Advocates’ website.

The sentiment among European politicians and artists seems to be that the extradition attempt is another example of uptight, moralistic Americans at work. Donald Tusk, the Polish Prime Minister, said Polanski was being victimized by vengeful Americans and their Swiss lackeys. The President of the German Film Academy was especially outraged because Polanski, an internationally acclaimed director, was arrested at a film festival. Franz Wagner, a German columnist, noted Polanski’s mother had died in Auschwitz and argued that Polanski should therefore be released “because he has suffered enough.” Perhaps the silliest comment came from French intellectual Bernard-Henri Levy. He thought Polanski, 43 at the time of the rape, should be forgiven for “a youthful error.”

Few of the European apologists or commentators have reflected how Polanski’s flight was an affront to the American justice system. Having pled guilty to rape, Polanski basically skipped bail and then continued to thumb his nose at the judge and courts for decades. This type of behavior is a more troubling matter for many Americans, given the central place a belief in the rule of law has in the dominant ideology. The rule of law is of course also held dear in Europe, but the Polanski affair makes clear Europeans are as likely to draw a sense of right and wrong from nationality, history, and a respect for art as they are to rely on a court of law.

WHAT COULD BE MORE ANNOYING THAN THIS? MAYBE IF IT WAS BOLD? AND RED? . . . .

And if you worked for New Zealand’s ProCare Health, it could even get you fired.

That’s exactly what hapened to Vicki Walker, who was abruptly kicked out of her job for sending “confrontational emails” with text formatted in a variety of red, bold, and all caps fonts. Walker had sent the emails to fellow workers within the company, usually with stern and detailed instructions on how forms should be properly filled out.

Someone at ProCare didn’t like her approach, suggesting she caused “disharmony in the workplace” and was being too confrontational via email, eventually firing her without warning.

Walker, however, got the last laugh. She sued for wrongful termination and won the case, pocketing $17,000 in lost wages and for other unspecified harm caused due to the firing.

OK, so Null brings up some good questions about this unusual workplace situation, including: “Is it OK to fire someone for misuse of their caps lock button?”  I love his witty repartee about those responding in caps being fired!

What would happen in the United States?  Well, with our vaunted employment at will system, probably not much, unless you could make the argument that this type of firing causes intentional infliction of emotional distress (hard to see how this would qualify as utterly intolerable in a civilized society, no?).

Just cause for firing in a union or civil service environment – here, I have to agree with the Tribunal in New Zealand, I DON’T THINK SO!!!

Hat Tip:  MIKE ZIMMER!!!!

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church’s traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

As a member of a Jesuit law school faculty, I am very proud that the Catholic Church has continued to take such a view on the value of unions and the need to protect historically exploited workers.  I checked with my favorite Jesuit and he tells me this at least the fifth in a series of encyclicals commentating on the importance of labor unions starting with Pope Leo XIII in the late 1800s.

Domestically, a lawyer is rarely found to have committed malpractice merely because she or he is unfamiliar with the current state of the law in her or his own state, much less other states or federal law. Rather, the presumption is that she or he has sufficient general familiarity with the law and possesses the skills necessary to collect knowledge about the law to provide effective counsel.  This is true even for highly specific legal subject matters such as antitrust or securities law (the one significant exception may be patent law). So, if a practitioner does not commit malpractice when advising a client without knowledge of the specific domestic law, why would the standard differ for foreign and international legal matters? 

Much as with domestic law, it is incumbent upon an attorney to become familiar with foreign and international law about which she or he is counseling a client.  But it is unlikely one could master one (much less all) of the foreign languages necessary to read the foreign legal texts various clients with foreign or international matters may require. In the absence of foreign language competence, a responsible attorney will resort to some English-language books and treatises discussing these matters under the applicable foreign or international law. For a few jurisdictions one may access some statutory or code law or scholarly work that has been translated into English. However, because these works are often general or summary, a familiarity with the internal law of a foreign country is made even more difficult due to specialized language and customs that cannot be overcome by reading a translation.

For a few dollars more (actually, many dollars more) one can solicit advice from an English-speaking attorney in the foreign country at issue.  Still, the communication between the foreign and U.S. attorneys may appear to have more meaning than it has in reality, especially when dealing with attorneys from that country rather than U.S. expatriates. The meaning of a term or legal principle discussed out of context can be particularly dangerous.  An easy example is the request by a foreign party’s attorney for execution of a document by a “notary public.”  As every American attorney knows, a “notary public” is a person who may or may not be a lawyer who will certify by “seal” that the person appearing before the notary has provided identification that appears to establish that she or he is the person he or she claims to be.  This request by the foreign attorney seems so perfunctory that one would be surprised that it seems to be of so much importance.  However, in the Civil Law tradition a “Notary Public” is usually an experienced, well-qualified attorney who has passed certain levels of examination such that s/he is licensed to act in an official capacity on behalf of a court.  Suddenly, the distinction warrants further discussion between the U.S. attorney and the foreign lawyer as to what the foreign lawyer and the foreign lawyer’s client really want and the effect of the notary’s seal.  Even more serious differences abound. Yet, many lawyers operate innocently in the dark.

So, how might an attorney deal with this potential malpractice problem? Because malpractice insurers seem to be oblivious to the potential problem of professional malpractice in advising clients on foreign and international legal matters there have been few signposts as to the standards that a court or a professional governing body might set as a minimal level of practice.  Clearly, a good initial step is to establish a contemporary record of what legal sources in English (background materials on the legal system itself, statutes and codes, judicial decisions, the works of leading scholars and secondary sources) were examined. After developing a grasp of the legal system, its structure and basic legal materials, it is wise to make a diligent search for and consultation with competent foreign counsel. This effort to obtain and abide by the advice of foreign legal counsel can serve as a strong indication that the attorney is providing accurate and current counsel while also disclosing to the client that the attorney is relying on the foreign counsel.  Still, there are likely significant gaps between what the foreign lawyer advised and what the American lawyer understood. Usually, consultation with a U.S. professor or a U.S. attorney familiar with the legal system under consideration will expose the gaps and resolve them.

U.S. attorneys are facing more and more foreign and international legal issues in their daily practices.  Clients are dependent on the efforts of attorneys to ferret out the problems that may arise in these foreign and international matters. Often the most pernicious issues are those that do not arise in standard domestic practice or have different and distinct meanings in the foreign context. Unfortunately, these are the very issues that could be the basis of malpractice complaints.  Absent guidance from courts or insurers as to the standards for malpractice in counseling clients as to foreign and international matters, a record of serious endeavors to meet the best interests of the client will be a gold standard when these issues arise.

Although many members of the Court have cited to international and foreign law at one time or another (including Justices William Rhenquist, Antonin Scalia, Sandra Day O’Connor), none have asserted that international and foreign law have any determinative or precedential value in the U.S. legal system. Moreover, citation to international and foreign law in common law cases has rarely been challenged. Rather, the issue is centered on the reference to international and foreign law when the Court is addressing the Constitution. In fact, this issue has served as a cloak for the ongoing debate between the “originalists” (those who assert that the original wording of the Constitution and its context at the time are the sole measure as to the meaning of the Constitution) and the “evolutionists” (those who assert that we must measure the meaning of the Constitution with at least an eye on its contemporary context) over the appropriate way to interpret the Constitution. In effect, the “originalist” argument states that to allow reference to foreign and international law is not merely to align oneself with foreign interpretations that could be inconsistent with the context of American constitutional law (because the sources and therefore the meaning arises in different contexts), but that the use of these foreign sources undermines the very meaning of the Constitution’s drafters and by implication American sovereignty itself. Therein lies the bedrock debate: although international and foreign law is neither mandatory nor precedential, the fear is that these references will be used as tools to pervert the essence of the “originalist” philosophy of constitutional purity. 

An interesting side note in this debate is the history of consideration of international law by the Court. For example, in Sabbatino v. Banco Nacionale de Cuba (1964), Justice Harlan, speaking on behalf of the majority, considered when might it be appropriate under U.S. law to apply international customary law as to the expropriation by a foreign sovereign of property wholly within its territory and the appropriate compensation that might be warranted by the taking. Sabbatino involved the disposition of property in Cuba purchased by a private party prior to the 1959 Cuban revolution but seized and resold by Cuban governmental entities pursuant to a decree of the Cuban government after the revolution. The private purchaser whose property was expropriated asserted that the property was taken without complying with the international law standard of prompt, effective and just compensation. Despite Justice Harlan’s concern about the Act of State Doctrine (AOSD) (a judicially created doctrine that precludes review of the legality of an act of a foreign sovereign performed wholly on its own territory) he would have applied the international customary law standard for expropriation if he could find consensus among nations as to the appropriate standard. Unable to find consensus he stated that the AOSD precluded an examination of the legality of the Cuban taking.  A primary underlying rationale for the AOSD is the potential conflict between the executive and judicial branches of the Unites States government as divided by the separation of powers under the Constitution. Justice Harlan chose not to overcome the AOSD preclusion not because it is inappropriate to consider and apply international law in this constitutional context, but rather because the international law in the area of expropriation was too unsettled to set an international law standard.

Those who rail against the citation and analysis of international and foreign law by the Supreme Court fail to consider that the Supreme Court has never barred one state from citation to and examination of another state’s constitution as an aid in the analysis of its constitution; that the Court often makes reference to secondary resources that have their origins in international and foreign law; or that Americans have historically used comparative law to examine and develop our own law. And there is the rub. If we allow the developmental experiences of international and foreign law to be a source in aid of understanding our Constitution, it will vary the literalism necessary for the preservation of the originalist doctrine.  Maybe this is why Senator Sessions and others (see, for example, Michael Chertoff in “Questions for Judge Sotomayor” in the Op-ed section of the New York Times on July 13, 2009) have raised what seems like an esoteric topic into an issue of significance.  Not surprisingly, it appears that Judge Sotomayor has never faced this issue in her voluminous history as a litigator or jurist. Although Judge Sotomayor will probably refuse to prematurely judge this issue, it has joined Roe v. Wade as a perennial for future Senate hearings for future nominees to the Court.

Examples of these significant developments include: 

• The very rapid economic recovery of the Chinese economy as against those of the U.S. and the E.U. in the wake of the world-wide economic crisis;
• China’s institution of a broad and deep “Buy China” program despite China’s protests of American congressional consideration of an expansion of its “Buy America” program three months ago (because China’s economy includes many state- or military-owned industries, a “Buy China” program that is facilitated by the top-down structure of Chinese law and government can have a much greater disruptive impact on world trade than a “Buy America” program);
• A complaint filed by the U.S. and the E.U. with the World Trade Organization addressing China’s blocking the export of essential raw materials that would be used by competitive industries in the U.S. and E.U. (China has pointed out that it did not agree to the system of world export trade);
• An effort by China (and Russia) to move away from a U.S. dollar-based world trade system to a broader market basket of currencies.

For Americans these issues are quite important.  The ability to obtain raw materials that will be used in creating the products of American labor and the opportunity to export American-made goods on a level playing field  is essential. One does not need to be an economist to understand that it will be very difficult to rescue the American economy if American industry cannot produce goods or cannot sell goods in foreign markets. Indeed, the Chinese remember very well the nineteenth- and twentieth-century imperialism that undermined Chinese society and its economy by draining natural resources and causing the Chinese to have to buy imported finished goods at high prices. With the hollowing out of American manufacturing during the past quarter of a century, the great costs of war, and the recent undermining of the American banking system leading to the current debtor-nation role of the U.S., we can ill afford to endure trade barriers.

The importance of these economic issues transcends mere American business and financial concerns. At their root is a very different outlook as to the role of government in transnational trade, and different approaches to foreign policy and world environmental, labor, and human rights issues.  This is not to say that Chinese self-interest, however it is defined by its government, is inherently antithetical to American interests. Rather, if the U.S. and the E.U. are going to deal effectively in an open world trade environment, they must have citizens who are familiar with the trade issues and actively involved in supporting a policy that provides growth for all. This is especially true at a time of great world economic vulnerability and a very real potential that the kind of protectionism that undermined world trade in the 1930’s may be revived and threaten to lead us into the kind of world economic depression that was a significant factor behind World War II.

To quote part of the article,

Beppe Severgnini, columnist for Corriere della Sera and author of La Bella Figura – A Field Guide to the Italian Mind, thinks the risk of a PR disaster in Washington is low. He points out that Mr. Berlusconi does not speak English, Mr. Obama does not speak Italian, and they will only meet for one hour to discuss preparations for the G8 summit, which Italy is hosting next month.

And, as Mr. Palandri, a professor at University College London,  puts it, “Even if he does badly he won’t be in an embarrassing position — because we could not be in a more embarrassing position than we are now.” 

Yet, as the article indicates, Italian public opinion is totally polarized against and in favor of “Silvio.”  In fact, many find him very funny.

I think President Berlusconi could in reality be the actor of a sort of comedy (a “cabarettista,” as a good friend uses to define him), that typical (even if somewhat tragic) Italian comedy that will never be accepted in any “serious” countries, but that makes millions laugh in Italy every year.  Still, this does not justify insensitivity or just saying whatever is in your mind at any given moment, and a head of state should know better.

As Dante was making Ulysses saying to his followers in the Inferno just before crossing Gibraltar to adventure in the unknown, “fatti non foste a viver come bruti, ma per seguir virtute e conoscenza” (”you were not made to live like beasts, but to pursue strength and knowledge”). Unfortunately, the “bestiality” part of man shows up as bad humor in many Italians including “Silvio,” but, even if this is not justifiable, considering what other heads of state are also doing in this world (even if they are less gaffe-prone for sure) I am really not ready to say that Silvio Berlusconi is so much worse than many others.

Cross-posted at Opinio Juris.  (With an interesting response and reply.)

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program. 

 In addition to the various presenters, Professor Paul Secunda also provided participants with helpful feedback. The topics and discussion on each of the drafts were fascinating and brought us on a beautiful journey throughout many different areas of the law.

Professor Phoebe Williams opened the day by presenting a paper on “Age Discrimination as a Barrier to the Provision of Health Care,” in which she analyzes the Age Discrimination Act of 1975 and advocates for the creation of appropriate data collection and research models to effectively identify and redress those instances where advanced age is illegitimately considered by health care providers.

Professor David Papke then followed with a paper on “Law, Legal Institutions, and the Criminalization of the Underclass,” which represents one of the chapters of  a planned book on the analysis of the relationship between legal institutions and the “underclass” in the United States.

Also related to Criminal Law, Professor Greg O’Meara presented a paper on habeas corpus review for state prisoners, in which he challenges the belief, almost taken for granted after passage of the Antiterrorism and Effective Death Penalty Act of 1996, that habeas claims are ineffective.  Professor O’Meara’s paper will be part of the Conference on Criminal Appeals, which has been organized by Professors O’Hear and Oldfather and will take place at Marquette Law School on June 15-16, 2009. The paper will also be published in a special symposium issue of the Marquette Law Review.

The Workshop continued with the presentation of Professor Vada Lindsey on the wrongs of the “Earned Income Tax Credit.”  In this paper, Professor Lindsey criticizes the effectiveness of the EITC, particularly insofar as it fails to encourage saving by the working poor.

Professor Lisa LaPlante followed with a presentation that brought us to a different dimension of the law: international law. In her current project, starting from the analysis of the conviction of former Peruvian President Fujimori, Professor LaPlante considers the issue of criminal accountability for wars on terror and human rights violations by heads of state.

Professor Nadelle Grossman then brought all of us back to our classrooms by discussing her current research project: how traditional law school teaching, which is based primarily on case law, fails in preparing students for transactional practice. In her paper, Professor Grossman highlights the gap between the reality of legal practice and law school teaching, criticizes the lack of valuable materials for teaching transactional law and practice, and calls upon law school curricula to bridge this very important gap.

Next, Professor Michael O’Hear presented a draft of his article “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experience,” which he will also present at the Criminal Appeals Conference and which will be published in the symposium issue of the Marquette Law Review. In his paper, Professor O’Hear proposes a set of principles to guide the appellate review of sentence explanations in jurisdictions, such as Wisconsin, that lack mandatory sentencing guidelines.

I then concluded the day with a presentation on “The Case for a Fair and Balanced Protection of Geographical Indications of Origin,” which addresses the reasons why we should protect these “new” types of intellectual property (which refer to names such as Prosciutto di Parma, Chianti, Bordeaux, Budwar Bier, or Idaho Potatoes) and the limitations that should apply to these rights. Unfortunately, I had no time to provide tastes of the many (good quality) food and drinks I mention in my paper!

Thank you again, Professor Oldfather, for organizing such a great day of legal discourse and intellectual exchange at Marquette Law School.

“Our four weapons are fear, surprise, ruthless efficiency, and an almost fanatical devotion to…Justice?” Cardinal Ximénez, put aside the [dish-drying] rack and the Comfy Chair. Torture should be thrown into the ash heap of history. Spanish Inquisitors have devised a more clever means to punish the errant: universal jurisdiction.

With apologies to Monty Python, and with no intention of being too flip with a grave topic, I was struck when I heard this story on NPR’s Morning Edition on the drive to work. To quote,

Spain’s National Court operates under the principle of universal jurisdiction. As a result of a 2005 ruling by the Constitutional Court, the National Court must investigate allegations of crimes like torture and terrorism in another country if no legal action is being taken there.

Now, the court’s docket contains more than a dozen cases in countries including China, Morocco, Israel and the United States.

Thus, in March of this year, a Spanish magistrate on the National Court, Judge Baltasar Garzon “started an investigation into allegations that former Attorney General Alberto Gonzales and five other Bush administration lawyers gave legal justification for torture at Guantanamo.” The BBC reports that “Mr. Garzon is one of six investigating judges for Spain’s National Court which, like many other European countries, operates an inquisitorial system, as opposed to the adversarial system used by the US and UK.  The investigating judge’s role is to examine the cases assigned to him by the court, gathering evidence and evaluating whether the case should be brought to trial. He does not try the cases himself.”

NPR further asserts that National Court Judge Javier Gomez Bermudez, who presided over the Madrid bombing trial of 2007 and sentenced the three bombers to as many as 42,924 years in prison, “would most likely be on the bench for any case regarding Guantanamo.” Nonetheless, Judge Gomez Bermudez is quoted as saying to NPR that

It’s evident that in an international community of democratic states, no state can arrogate to itself the authority to supervise what another is doing — except in the case that the other is doing absolutely nothing. If President Obama is taking a series of decisions in favor of human rights, it doesn’t make apparent sense for us to come and put icing on the cake.

NPR concludes its report by citing a human rights attorney, Gonzalo Boye, who first brought claims against Bush administration officials; Boye claims that “Americans should embrace universal jurisdiction,” because “America was once one of the early proponents of the idea, at the Nuremberg trials of Nazi leaders after World War II.”

As a novice to international law and universal jurisdiction, I welcome responses to this NPR report, especially to Judge Garzon’s and Judge Gomez Bermudez’s comments. As an amateur student of history, I also welcome comments about similarities and differences between the Nuremberg trials and current efforts to prosecute citizens of other nations for crimes against humanity, et cetera. Here is an older (2001) article in Foreign Affairs by Henry Kissinger opposing universal jurisdiction, and a response by Kenneth Roth in favor.

Cardinals Biggles and Fang, if Spain has its way, you will be busy….

This article provides an overview of the nature and scope of judicial review of Olympic and international sports arbitration awards, primarily those rendered by the Court of Arbitration for Sport (based in Lausanne, Switzerland) and their review by the Swiss Federal Tribunal pursuant to the Swiss Federal Code on Private International Law. It also describes and compares U.S. courts’ review of international sports arbitration awards pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards as well as domestic sports arbitration awards. Both Swiss and U.S. courts are permitting CAS arbitration awards to establish a developing body of private international sports law that displaces national laws. The author concludes that this is the appropriate jurisprudential view because it is necessary to have universally accepted legal rules and dispute resolution processes for Olympic and international athletic competition, and for the governance of global sports competition to be fair and equitable on a worldwide basis.

The article is forthcoming in the Pepperdine Dispute Resolution Journal. 

Did you see this article in the New York Times this morning, about the 300 women protesting a new law that would give men in the Shiite minority community virtually complete control over the lives of their wives?  The NYT describes the law this way:

The law, approved by both houses of Parliament and signed by President Hamid Karzai, applies to the Shiite minority only, essentially giving clerics authority over intimate matters between women and men. Women here and governments and rights groups abroad have protested three parts of the law especially.

One provision makes it illegal for a woman to resist her husband’s sexual advances. A second provision requires a husband’s permission for a woman to work outside the home or go to school. And a third makes it illegal for a woman to refuse to “make herself up” or “dress up” if that is what her husband wants.

And the protest itself:

The women who protested Wednesday began their demonstration with what appeared to be a deliberately provocative act. They gathered in front of the School of the Last Prophet, a madrassa run by Ayatollah Asif Mohsini, the country’s most powerful Shiite cleric. He and the scholars around him played an important role in the drafting of the new law.

“We are here to campaign for our rights,” one woman said into a loudspeaker. Then the women held their banners aloft and began to chant.

The reaction was immediate. Hundreds of students from the madrassa, most but not all of them men, poured into the streets to confront the demonstrators.

“Death to the enemies of Islam!” the counterdemonstrators cried, encircling the women. “We want Islamic law!”

The women stared ahead and kept walking.

A phalanx of police, some of them women, held the crowds apart.

As a refugee law professor, dramatic confrontations like this one always lead my thoughts back to the legal definition of “refugee,” and the absence of  ”gender” among the enumerated categories of persecution.  For instance, the U.S. defines “refugee” as a person “unable or unwilling to return to . . . [his or her home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .” I have considered thearguments, legal and practical, against trying to add “gender” to the Refugee Convention’s definition as a separate ground.  But I think I disagree.  For that reason and so many others, it seems like time to revisit the convention and protocol that established the international definition of “refugee.”

Back to the main point, the courage of these Afghani women is inspiring. And the NYT article suggests that the law change might possibly be halted before becoming enforceable.

Cross-posted at feministlawprofs. ]]> http://law.marquette.edu/facultyblog/2009/04/15/brave-afghani-women-protest-law-change/feed/ 2 http://law.marquette.edu/facultyblog/2009/04/14/international-media-conflict-resolution-conference-update-media-files-now-available/ http://law.marquette.edu/facultyblog/2009/04/14/international-media-conflict-resolution-conference-update-media-files-now-available/#comments Tue, 14 Apr 2009 13:57:19 +0000 Andrea K. Schneider http://law.marquette.edu/facultyblog/?p=4716 Our media files from the Conference, including pictures and webcasts of the presentations, are now available. Click here for access to the pictures, videotapes, and podcasts.  The written products of the Conference are expected to appear in the fall issue of the Marquette Law Review.  (My earlier post on Conference highlights is here.)

Relying on the criminal liability theory of “command responsibility,” the prosecutor provided evidence that the hierarchal chain of command led directly to Fujimori.  Notably, the court found that the systematic and general policy of violent and repressive means of fighting a “war against terror” made these crimes rise to the level of “crimes against humanity.”   Lawyers for the victims later pointed out to reporters that international law currently recognizes that perpetrators of this category of crime can never receive an amnesty or pardon.

As I watched the live coverage of the hearing online, I wondered what Fujimori was thinking.  For the entire duration of the sentencing (which lasted all morning), he vigorously scribbled notes on his notepad and did not look up even once.   Did he grasp the gravity of his acts?  Or did he still believe they were justified as part of his campaign against terrorists?  I suspect that when Fujimori stumbled on the Peruvian political scene almost two decades ago, he never could have imagined he would make history in this way.

As an unknown “outsider,” he had promised the electorate change, but went on to dismantle democratic institutions through a self-coup in April 1992 that closed the Peruvian Congress and Constitutional Court.  He used draconian antiterrorist executive decrees as a dragnet to silence dissent, and was often aided by the paramilitary group Colina that carried out some of Peru’s worst massacres. Yet, it would be widespread corruption scandals in 2001 that would cause his government to fall and force Fujimori to flee to Japan, from where he faxed his resignation and settled into a comfortable life.

The Peruvian government began formal proceedings to solicit his extradition, a process that would take another five years.  Fujimori was finally brought to justice after he made a surprise journey to Chile in November 2005 in anticipation of Peru’s national elections.  Immediately, the Peruvian government submitted a new extradition request to Chile, which was granted by the Supreme Court of Chile on September 21, 2007.  The next day, a tired looking Fujimori was delivered to Peru and immediately incarcerated in a holding cell specially-built for him in Lima. On December 10, the Permanent Criminal Chamber of the Peruvian Supreme Court initiated criminal proceedings against the fallen leader.

Having attended the Chilean hearing in August 2007, I felt an immediate impulse that it was imperative that the world stayed tuned into this historic trial.  With the support of the Open Institute Society (the Soros Foundation), I began a trial monitoring project with my colleagues Ana Maria Vidal and Kelly Phenicie that included a bilingual blog (www.fujimoriontrial.org).   We have received emails from people all over the world expressing their appreciation of having a direct source of news and analysis on the trial, but, even so, we question why the trial has not drawn the same type of international attention as other high-profile international criminal trials of former heads of states.     

Today, Peru today showed its capacity for upholding the rule of law, but the current political context poses a constant threat to this commitment to legality.  In fact, I carefully studied the solemn faces of Fujimori’s children who sat behind him, separated by a glass panel.  His daughter Keiko is a Peruvian senator and now ranks as the number one candidate for the 2011 elections.  She has already promised to pardon her father if elected.  After the hearing, she told the reporters that the final judgement was filled with “hate and vengeance” and then took to the streets with a megaphone screaming to the protesting crowd that they would not stop until her father was freed.  Earlier, police were called in to restrain the pro-Fujimoristas congregating and protesting outside the courtroom.

While those supporting Fujimori express anger, victims sigh in relief.  Holding Fujimori accountable holds great symbolic purchase for the thousands of victims who suffered under his rule. I watched Gisela Ortiz stand outside the courtroom and publicly declare that justice had finally reigned supreme.  The importance, she added, is to retain the memory of the deceased.   Ortiz’s brother had been one of the eight students “disappeared” in the Cantuta University massacre, and since then she has crusaded for justice, becoming one of the leaders of Peru’s grassroots human rights movement.   She even brought the Cantuta case to the Inter-American Court of Human Rights, resulting in a final judgment in 2006 ordering Peru to investigate Fujimori’s role in the massacre.   

Even though Fujimori declared that he will appeal, the judgment offers a definitive condemnation of Fujimori’s regime to the national and international community.  In particular, it stands for the principle that human rights violations cannot be considered just collateral damage in wars on terrorism, but rather are punishable criminal acts.

As I listened to Obama on NPR, I noted how he referred to many of the same concepts and issues I teach in “Comparative Study of Transitional Justice.”  This course exposes students to different case studies of how countries have tackled the arduous task of transitioning from conflict and repression to peace and stability.  In particular, we have discussed the use of truth commissions and criminal trials as mechanisms used by nations like Peru, Chile, and South Africa, among others, to address past legacies of human rights violations. Often these measures seek to promote both reconciliation and the rule of law.

The course requires students to journal on their reactions to these topics.  Not even a month into the process, 3L Nick Heitman challenged the usefulness of goals like accountability, truth, social reconciliation, victim reconciliation, victim recognition, and compensation if a country ignores institutional reform.   He wrote,

I argue this point because the atrocities of the past government cannot be taken back; all that can be done is preventing them from happening again.  Institutional reform containing a system of checks and balances is the only way that a government can be prevented from committing these horrible acts in the future. Only reforming the institutions of the government can create the economic, social, and political stability that is needed to ensure long-term success of democracy.

Mr. Heitman’s observations gained credence when two guest speakers spoke about their respective work on the rule of law in Afghanistan and Iraq.   Specifically, on March 2^, we heard from Michael Tobin, a colonel in the Wisconsin Army National Guard who worked as a Judge Advocate and Rule of Law Officer for Combined Forces Command in Afghanistan.  Then on March 26, we listened to Matthias Onderak (MULS Class of 2000) who as an Assistant U.S. Attorney in the Southern District of Indiana served this past year with the U.S. Justice Department’s Rule of Law Program in Iraq.   Both speakers offered students a first-hand account of the significant challenges of building the rule of law from the bottom-up in worn-torn societies.

Mr. Tobin spoke of working with the handful of brave members of the legal profession who had chosen not to flee their country during the Taliban’s rule.   Without courthouses, judges often travel from one village to another in the “circuit court” fashion of our own early federal justice system.   Afghan lawyers struggle to reconcile the religious Sharia law with common civil law in order to offer Afghanis a fair system of justice that upholds human rights.   Mr. Tobin also shared PowerPoint pictures of a vast and arid land spotted by nomad people and roaming groups of orphaned children.  He casually spoke of bullets flying by his head while he visited remote villages.

Johnathan Cattey who is a 2L commented on Mr. Tobin’s talk,

It reminded me that sometimes the classroom analysis and theory of transitional justice/rule of law is very removed from the actually challenges that are faced in many countries such as Afghanistan. Aside from attempting to establish some stability in the government and legal system of the country, Mr. Tobin also had to worry about surviving. It must be quite difficult to keep focused on the task at hand, when your physical safety is being constantly threatened or at least questioned.

Classmate Alyssa Dowse (2L) focused on Mr. Tobin’s sobering account of one of the greatest challenges to rebuilding a war-torn nation:  interpersonal conflicts and logistical mismanagement that gets in the way of “synchronization.”  She writes,

For these reasons, it appears that regardless of how different groups believe a country should be rebuilt, it is necessary that all parties are open to each others’ views and create a plan that encompasses all interests and goals.  If one party — the controlling military troops — just wants to move on, it may be difficult for the other parties to want to communicate and create a common plan.

Likewise, visitor Mr. Onderak shared the practical challenges to building the rule of law in Iraq.  As a civil servant, he lived in a tiny trailer without running water or windows.  He left the barracks only with 48 hours notice to the military, and was then accompanied by eight armed soldiers and carried his own pistol and wore armor.    Admirably, Mr. Onderak left his wife and three children for a year as what he perceived as his duty to serve his country and also to give back to the Iraqis.

Mr. Onderak realized that much of the success of creating local buy-in to institutional reform depended on slowly cultivating a culture that valued the rule of law.  Astutely, he spent his first month just listening and asking questions to orient himself to the local system and culture.  His approach was then comprised of much more than rewriting laws and training lawyers.  Rather, he worked creatively to help internalize a respect for law.

For example, he questioned the possibility of cultivating respect for the rule of law if judges worked in dilapidated make-shift courthouses whose walls could be kicked in. Thus, he lobbied the Iraqi government to invest $250 million (an unexpected boom in the local budget came with rising oil prices) for the physical reconstruction of the courthouses.  At the same time, he recognized that the public needed to believe in the administrators of justice.  Consequently, he worked with the media to profile the success of local criminal trials to convey that law breakers would be held accountable and that judges would follow fair procedure (for example not accepting coerced confessions as evidence).

Mr. Onderak focused on raising the public’s esteem for the local judges, whom he called “the bravest people” he knew, by assuring that the public noticed when they were visited by diplomats.   This simple strategy seemed to raise their prestige as evidenced by an increased interest of the government in the judiciary.  Mr. Onderak also recognized that mistrust of the security forces directly undermined building the rule of law.  So he orchestrated visits to local schools by Iraqi police forces to chip away at this distrust through opportunities for face-to-face interaction.   The program made the police feel like heroes, perhaps exemplified most by the fact that they began to visit schools on their own and placed photos of the events on their office walls.

Yet, understanding that such gestures would not go to the core of changing ingrained habits, Mr. Onderak also focused on providing training to all law enforcement actors in order to begin strengthening their understanding of rule of law principles.

Seemingly impressed with Mr. Onderak’s heroic work, 2L Nate Dineen wrote that

he made a very clear point to illustrate that it was important to make sure that the Iraqi people bought into the idea of a society with rule of law. . . . How can this possibly occur if a society is either not familiar with a system or does not have faith in it?  Onderak stated that the judiciary in Karbala was the strength of the rule of law in the region. . . .Through his actions it must have elucidated that he truly cared to see improvements in Karbala’s rule of law.  From the lobbying to build new courthouses to the desire to elevate the status of the judges, the judiciary and society must have seen the commitment, if not from one man, but from a nation.

Both Mr. Tobin and Mr. Onderak helped to bring the world to the MULS classroom by blowing life into the concepts and experiences we have been learning about.  Most importantly, they revealed that assuring lasting peace requires more than just military intervention, but perhaps more importantly, also necessitates creating the cultural norms to support rule of law reform.

One of our alums who attended, Evelyn Ang, sent me this clip in light of what we had talked about regarding the impact of changing media. Truly an amazing video! Another alum, Amy Koltz, noted, “I found the speakers engaging and the presentations thought-provoking — I’m amazed at the group of presenters you were able to pull together and bring to Marquette.”  She also provided a link to this article from Haaretz on media coverage of Israel and noted that it could have been a presentation in the conference. Our own program manager and conference planner, Natalie Fleury, heard this story on NPR Monday morning about Al Qaida’s training manual on the Internet, directly linking to Gabriel Weimann’s talk on Saturday.

And, from 2L part-time law student (and full-time veterinarian) Marty Greer, came this summary of the conference for those who missed it:

The presenters were from all over the United States and the world: Israel, Belgium, Italy, California, Missouri, Pennsylvania, Massachusetts, and Wisconsin. Their backgrounds included journalism, academia, law, and conflict resolution. To say it was a rich and diverse experience sounds too trite for what happened there. These sad and overused terms cannot begin to describe the energy in the room. It was one part educational experience, one part idea exchange, and one part light bulbs going on over the attendees’ and presenters’ heads. Each of the presenters introduced new and exciting concepts – new even to the people heavily steeped in these areas. For the scholars, it was easy to see new ideas coming together and evolving into new research and a new paper. For the journalists, they developed a new appreciation of how their work can aid in reducing and resolving conflict. For the attorneys and others involved in the practice of conflict resolution, this was a great source of theoretical and hands-on experience that could be applied in the field. For those with short attention spans, each presentation was short, concise, and to the point. This allowed the opportunity for many viewpoints to be presented and plenty of time for the attendees and fellow presenters to delve into the topics they were most intrigued by. All in all, this was a unique and valuable experience, where we were allowed to rub shoulders with the leaders in these fields.

In future blogs, I will link to the webcasts and slideshow when they become available, and to the abstracts for our articles as they arrive.  My thanks to all our speakers and our great planning team here for a terrific conference.

Cross posted at Indisputably.

In addition to several distinguished law professors, the inter-disciplinary and international panelists will include:

• Professor Eytan Gilboa, Director, Center for International Communication, Bar-Ilan University, and Visiting Professor of Public Diplomacy at the University of Southern California
• Professor Martin Euwema, Department of Psychology, University of Leuven
• Frediano Finucci, Late Night News Chief, Ufficio Centrale del telegiornale La7 Televisioni Spa Telecomitaliamedia
• Andrew Lee, University of Beijing
• Professor Alain Verbeke, Professor of Law, Universities of Leuven and Tilburg; Visiting Professor, Harvard Law School
• Professor Doug McLeod, UW-Madison School of Journalism & Mass Communication
• Professor Gordon Mitchell, Professor of Communication, University of Pittsburgh; Deputy Director, Ridgway Center for International Security Studies
• Professor Gabriel Weimann, Department of Communications, Haifa University
• Indira Lakshmanan, Journalist, Bloomberg News

You can find more information about the Conference on our website, and I will be blogging more about what we learned next week after the Conference.

Last summer, among much hand-wringing that the indictment would only make it more difficult for peace to be negotiated, Judge Richard Goldstone wrote a top-notch op-ed for the New York Times explaining the fallacy of that concern. Goldstone, as the former prosecutor for Rwanda and Yugoslavia, understands this balance between peace and justice quite well. As Goldstone notes, the peace process in Darfur is hardly working as it is.

In the meantime, the indictments may delegitimize the government in the eyes of the Sudanese people, especially the elites in Khartoum. In 1999, after the International Criminal Tribunal for the Former Yugoslovia issued its arrest warrant for President Milosevic, an opposition group called Otpor turned it into a political weapon with the slogan, “He is finished.” Mr. Milosevic lost the elections in 2000. Although other factors contributed to his fall, including lost wars and corruption, the indictments played their part by demonstrating his isolation.

In Sudan’s 2009 elections, some citizens may rally behind their president. Others may not. In the story of the emperor’s new clothes, a little boy is the only one who has the innocence to point out that the emperor is naked. The arrest warrants for President Bashir reveal to the world what type of regime holds power in Khartoum. They should also push the Security Council to apply real pressure on the Sudanese government. The council and its member states should make President Bashir’s government an international pariah, imposing sanctions against its leaders and, most important, Sudan’s oil exports, which have so effectively insulated the regime. The prosecutor’s message might make some people uncomfortable, but that does not mean we should shoot the messenger. This crisis should galvanize the Security Council to take serious action.

The Security Council heeded Judge Goldstone’s call and supported the ICC. Last week the viewpoints of two religious figures opened the debate again about peace versus justice. Franklin Graham, in his NYT op-ed entitled “Put Peace Before Justice,” argued that arresting Bashir would just create more chaos. As he says, “justice without peace would be a hollow victory.” On the other hand, and on the same page, Desmond Tutu argued that African leaders should support the International Criminal Court in its work. I, for one, find it hard to aruge with one of the greatest living symbols of peace and justice.

Darfur presents such a hard choice because we can’t see the light at the end of the tunnel. Will the indictment actually help the people of Darfur? Could the situation get much worse? Is this just to make us (the West) feel better? It will be much easier to write the lessons of Darfur and this indictment twenty years from now. Right now, we cross our fingers and hope.

Cross posted at Indisputably.

I was a bit startled the first time I heard about U.S. soldiers seeking refugee status in other countries to avoid serving, or continuing their service, in the Iraq War.  There have been a number of such cases in Canada, and at least one in Germany.  (And I should note before continuing that I’m not sure that “humanitarian and compassionate grounds” are quite the same as asylum; still, the remainder of this post focuses on these soldiers’ ability to establish asylum.)

Under U.S. law, the basic definition of a “refugee” is someone who “is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” and Canada’s definition is similar.  Generally speaking, as students in my refugee law seminar learn, volunteer soldiers who desert their posts do not qualify as “refugees” under this definition.

Volunteer soldiers who fear prosecution for deserting have difficulty proving two important elements of the claim.  First, that they face “persecution,” rather than prosecution. Second, even if being tried and imprisoned for desertion is “persecution,” that the trial and imprisonment is “on account of” any of the forbidden grounds.  Having volunteered to become soldiers, it is difficult for them to establish genuine religious or political objections to service.  Furthermore, it is difficult to establish that the government targets them for punishment due to any of their beliefs or characteristics; rather, they are targeted along with anyone else who refuses to serve in the army as promised.

But the question of exactly what sort of service the soldiers promised to provide is the window through which some U.S. soldiers have tried to establish refugee status, arguing that their service in Iraq went beyond what they had volunteered for.  In July, a Canadian appeals court ruled that “dodging orders that are ‘contrary to the basic rules or norms of human conduct’ is enough grounds to apply for refugee protection. ‘Military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve. . . . ‘”  

In other words, if the soldiers could demonstrate that what they were being required to do was not what they agreed to do, but something terrible and against the law, i.e., “contrary to the basic rules or norms of human conduct,” then, this court held, they could perhaps demonstrate that their punishment was on a forbidden ground.

Even were that the case, however, circling back around to the first issue I raised, it seems unlikely that trial and imprisonment for desertion in the United States will be deemed severe enough to rise to the level of “persecution.”  This BBC article states that the only U.S. soldier that Canada has deported so far was sentenced to 15 months in prison when he returned here.  In the end, whether to deem a punishment “persecution” or “prosecution” is a judgment reflecting the decision-maker’s impression of societal values, and it is difficult to imagine a Canadian decision-maker determining that a volunteer soldier’s 15-months sentence for desertion was so unfairly punitive as to rise to the level of persecution.