Using Indictment as a Negotiation Tactic

Earlier this month, the prosecutor of the International Criminal Court issued an arrest warrant for Sudan’s president, Omar Hassan al-Bashir, for crimes against humanity and war crimes connected with Darfur. The warrant raises again the timeless question of peace versus justice. (See articles by Marquette visiting professor Lisa Laplante on outlawing amnesty and me on balancing peace versus justice in negotiating peace.) Is it more important to have peace on the ground (or at least hope for it) or to attain justice (in the manner of prosecutions)? Darfur presents this issue in a quite pressing manner.

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.

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Canada Orders U.S. Army Deserter to Return to the United States

Private First Class Kimberly Rivera had been seeking leave to remain in Canada “on humanitarian and compassionate grounds” to avoid prosecution for deserting her post in the U.S. Army.  Her claim, like the claims of other U.S. soldiers seeking to avoid further duty in the Iraq War in Canada, has been rejected, and, unless that decision is reversed, she is supposed to return to the U.S. by January 27th.

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.

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Reparations for “Terrorists”?

Should victims of human rights violations with alleged or certain ties to groups that use terrorism receive reparations? This complex and sensitive dilemma has begun to arise in countries implementing reparation programs pursuant to the recommendations of their truth and reconciliations commissions.

Reparations law has special relevance to the transitional justice paradigm, as countries seek to respond to widespread human rights abuses — situations in which the line between victim and perpetrator often blurs. New case studies reveal the serious challenges of implementing administrative plans of reparations that first require that recipients be qualified. While some issues are purely technical and logistical, others — those that hold the potential to generate new forms of harm and even new rights violations — beg further discussion and clarification. Certainly, as the recognition of the right to reparation grows, so do the legal issues pertaining to its practical application. In the realm of international human rights law, new cases offer opportunities to continue defining the parameters of this right, as noted in an ever-growing jurisprudence with respect to remedies law.

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