The first lesson for the ICC is clear: more celebrities. The SCSL’s trial of former Liberian President Charles Taylor, which began in 2007, attracted little attention from the international media until recently, when actress Mia Farrow and supermodel Naomi Campbell appeared as witnesses. Since these ladies became involved in the trial, the Western media has become suddenly interested in war crimes committed in Liberia and Sierra Leone (though the movie Blood Diamond also helped make the subject matter sexier).

The ICC, meanwhile, has begun investigations into crimes in five countries – Uganda, the Democratic Republic of Congo, Central African Republic, Sudan, and Kenya – and the media still doesn’t know where those places are, let alone which non-celebrity was responsible for the mass murder of thousands of other non-celebrities. The ICC should start scouring its case to see if Sudan’s President Omar al-Bashir ever met with Britney Spears, or if any of Congolese rebel leader Thomas Lubanga’s child soldiers wound up as part of the cast of Glee. The court needn’t restrict itself to celebrity witnesses though; just look at Charles Taylor’s defence lawyer, the Grandmaster Flash-quoting Courtenay Griffiths. Perhaps general awareness of the ICC could be boosted by the addition to the bench of Judges Judy, Reinhold, and Simon Cowell?

But despite its A-list witnesses, the SCSL could follow the ICC’s lead in one respect: securing a more reliable budget. Although the SCSL has cut the number of charges Charles Taylor faces from 17 to 11, the trial continues to drag on four years after it began. Each year the SCSL is forced to turn to international donor countries to acquire its $18M budget. The ICC, by contrast, has a permanent funding structure (the largest source of funds being the European Union), over 500 permanent staff, and an annual budget over $100M. The SCSL’s tight budget has led some to call for reducing the list of charges against Taylor further, the logic being that even a few successful charges will be enough to secure a life sentence.

Though ad hoc tribunals may not have the funding to compete with the ICC, they have a better track record of actually gaining custody of those they lay charges against. Charles Taylor and Slobodan Milosevic, who died while in the custody of the ICTY, are only the most prominent examples. The ICC, by contrast, has only taken custody of four of the sixteen individuals who have been indicted (two others have died, and three appeared voluntarily).

Why such a poor track record? In part, it is because the ICC has aimed too high, laying charges against even current national leaders such as Sudan’s al-Bashir. The experience of ad hoc tribunals shows that it’s best to go after individuals only after they have fallen from power, and have little to offer to friends still in high places. It’s true that the SCSL indicted Taylor while he was still President of Liberia, but by that time (summer of 2003) he had lost control of much of the country, and would soon resign and be exiled. The ICC, by contrast, has gone after al-Bashir while he is still in full control of Sudan (notwithstanding the autonomous southern region).

The difficulty with attempting to charge those still in power, is that they are still in power, and so have the ability to influence other states. For this reason al-Bashir was recently able to visit neighbouring Chad, where he was welcomed by the government. Chad has ratified the Rome Statute which established the ICC, Article 59 of which requires member states to comply with ICC arrest warrants. However, Chad has justified its refusal to comply by referring to an African Union (AU) resolution urging African states to defy the ICC on the al-Bashir case – even though the AU had removed that clause from the resolution shortly prior to al-Bashir’s visit to Chad.

The tribulations of the trials at the SCSL and ICC demonstrate that international justice remains hugely dependent on politics. These bodies focus mostly on African conflicts which are of little interest to the international media, their budgets are dependent on Western donor countries, and arresting the accused requires cooperation from countries which are often ill-disposed towards the courts while the suspects are still in power. A permanent institution such as the ICC would seem to indicate that progress is being made towards a world in which international crimes are brought to justice. Yet in practice we seem no further along than when ex post facto victor’s justice was meted out in the Nuremburg trials after the Second World War. At the very least, the ICC and ad hoc tribunals should improve by learning from each other.

And if the odd supermodel pops up in the trials, who are we to complain?

INTERNATIONAL JUSTICE: SUDDENLY COMPELLING

On July 16^th in the Chinese port city of Dalian, the explosion of two oil pipelines caused thousands of barrels of oil to begin gushing into the sea. The slick has since expanded to cover hundreds of square kilometres of water and spread upwards of 90km down the coast. The spill – and China’s cack-handed response – is clearly modelled after the U.S.’s ongoing gulf coast saga – but it’s a pale imitation. Unlike the American spill, there seems to be no threat of the oil being carried to other nations’ coasts. Yet even Australia has managed to pull off a massive spill affecting its neighbours. If China wants to get into the oil spill big leagues, they’ll have to find a way to go international.

But while the international oil spill scene is characterised by intense competition, there is a notable lack of corresponding cooperation. It’s all well and good to give neighbours’ coasts an old fashioned “slicking”. But as any eighth-grader who gets caught TP-ing someone’s house because my friend Alan can’t keep his mouth shut knows, there must be a time for cleaning up as well. Unfortunately, international law provides few answers about who is responsible for cleaning up international spills.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter explicitly excludes any “wastes derived from the exploration and exploitation of sea-bed mineral resources”. As a result, it will likely not apply to oil spills. The UN Convention on the Law of the Sea is more promising. It specifies at article 194 that “states shall take […] all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source”, and specifically, “pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil”. However, for the U.S. oil spill UNCLOS is of limited value because America has not ratified the treaty. Instead President Reagan in 1983 directed government agencies to treat most parts of the treaty as customary law.

Beyond the realm of international treaties, much of the regulation of the offshore oil industry is carried out by special national regulators. These include the U.S.’s Minerals Management Service (MMS), the Norwegian Petroleum Directorate, Britain’s Health and Safety Executive, and Australia’s Department of Minerals and Petroleum Resources. In Canada the Canada-Newfoundland Labrador Offshore Petroleum Board (CNLOPB) regulates the industry, since Newfoundland-Labrador is the only province where offshore drilling currently occurs.

National offshore oil regulators do little to coordinate standards with one another. They lack even uniform sex and drugs corruption standards. A prominent example is the absence of coordinated regulations requiring the presence of an “acoustic switch” on offshore rigs. This is a failsafe device which can be remotely (and reliably) used to close off a gushing well on the sea floor in the event of an accident – such as that on the Deepwater Horizon rig. Acoustic switches are required on rigs in Norway, Brazil, and Canada, and they are present in British operations in the North Sea. Yet in a 2003 report to the MMS, requiring acoustic switches was not recommended because “they tend to be very costly”. As a result, acoustic systems are not present on American rigs.

The lack of coordination between oil regulators stands in stark contrast to the kind of international cooperation seen in other industries. IOSCO, the International Organization of Securities Committees, allows national (and provincial) securities regulators to unify policy approaches, while central banks are currently negotiating their third set of global banking standards through the Switzerland-based Basel Committee.

With the ever-increasing global demand for oil, offshore spills affecting multiple countries will likely be inevitable. Some day China will catch up with the pros in this respect, leaving behind their current small-town spills. But if oil-producing countries and their national regulators don’t do more to agree on standards for preventing and cleaning up international spills, then the international dimension of spills will remain one-sided. In that respect, perhaps all of the offshore oil producers will remain amateurs.

BUSH LEAGUE

Yet Mike Bakunin, who recently left SOAR to establish a sister branch in Rivière Ouest (Manitoba) with a more awesome acronym, claims that these groups don’t just advocate violence. “For those who think that anarchists are just about chaos and firebombing, that’s not the case. Groups like FFFC Ottawa give the rest of us a bad name – we can actually engage with the issues as well as anyone. Now obviously the summit will be focusing on economic and financial matters, so we think that we can best get our message across if we zero in on those issues as well. It’s hard to convey complex messages like that with firebombs…not impossible though.”

As an example, Mike points to the debate over a proposed international bank tax. Although countries including Britain and the U.S. were initially pushing for a tax on banks to pay for bailouts when they became necessary, countries whose banks never needed to be bailed out such as Australia, Brazil, and Japan – with Canada leading the way – opposed the idea. Now as an alternative the Canadian government is proposing an idea called “embedded contingent capital” (ECC); essentially bonds issued by banks which would automatically convert into shares in times of crisis, providing instant extra capital. Finance Minister Jim Flaherty and Julie Dickson, the head of the Office of the Superintendent of Financial Institutions (OSFI), have recently been touting the merits of ECC. “The problem,” Mike says, “is that because there’s so much uncertainty about what would trigger the conversion, buyers of the bonds will demand a hefty risk premium which may end up costing the banks more than the tax would have. Plus, in a time of crisis, the conversion of the bonds might scare away other investors and exacerbate capital flight. So I think we have to fight ‘the man’ on this – even if ‘the man’ is Julie Dickson.”

It’s clear that ECC won’t be the only financial reform discussed at the summit. Reform of the Basel Accords – international banking regulations – will be a major focus. The Basel Committee on Banking Supervision (BCBS), based at the headquarters of the Bank for International Settlements in Basel, Switzerland, is composed of representatives of the central banks of developed and emerging market countries. It was created in 1974 in an effort to harmonize banking regulations across borders. Agreements among BCBS member states – called the Basel Accords – were negotiated by national leaders, finance ministers, and central bank governors. These agreements do not operate like treaties in the normal sense, with each country signing and ratifying them, but rather are intended as an international standard that national bank regulators can use when creating their domestic regulations. Implementation is left to each country’s discretion, but most regulators do in fact implement the accords (95 national regulators have committed to implementing the most recent accord by 2015). They aren’t applied uniformly however, since national regulators may include local variations on the rules.

The first agreement, now called Basel I, was agreed in 1988. It was designed around the concept of minimum capital requirements: the minimum amount of cash banks have to keep on hand relative to their total assets (loans they are owed). Basel I created 5 categories of assets based on risk level, and required banks to keep capital equal to 8% of the assets, weighted according to risk. It was implemented by BCBS member states by 1992. The second accord, Basel II, was agreed in 2004, and served to “upgrade” the original accord, creating a three-pillar structure. The first added nuance to the capital requirements of Basel I, distinguishing between three different categories of risk. The second gave new tools to regulators to better review compliance with capital requirements. The third pillar promoted market discipline in order to foster stability and predictability. Negotiations for Basel III were undertaken in response to the recent global financial crisis, and the G20 summits are a key part of the process. Proposed changes to Basel II include: revising the categories of capital (tiers) to improve transparency, strengthening risk coverage requirements, introducing a leverage ratio to supplement the risk rules, requiring the creation of capital buffers to promote counter-cyclicality, and a minimum liquidity standard for international banks. G20 finance ministers see the eventual implementation of Basel III as inevitable.

Mike believes it’s crucial for the protestors to have their voice heard while the Basel negotiations proceed in Toronto. “In pushing for a stateless society, we have to make the most of times when the different parts of the machine – government and big corporations and banks – turn on one another. First they’ll fight about international regulations, and then the next step is complete mutual annihilation. Basically what I’m saying is that we want the most stringent risk coverage and capitalization rules possible.”

The challenge for the collectivist anarchists is ensuring that they have a clear position on every financial reform issue, lest they appear to the public as an incoherent rabble. “Right now at our meetings we’re trying to hammer out what stance we’ll take on phase 2 of the International Accounting Standards Board’s new Financial Reporting Standards, and their impact on the life insurance industry.” Finance Minister Flaherty has supported Canadian life insurers in their appeal to the board for an exemption from the new rule. “On the one hand, big corporations shouldn’t be exempt from accounting best practices, but on the other hand these new rules would definitely create a lot of volatility for insurers– particularly with regard to long-term products. So I guess we’re not sure if this is a step forwards or backwards in the march to the destruction of the state. We hope to have decided by next week.”

Despite the complexity of the negotiations, Mike is confident his group’s nuanced message will get across to the public and to world leaders. “I’m optimistic. We’ll print out our arguments in an executive summary, and see if we can submit if for consideration by the delegates.”

Asked if there was a backup plan for conveying their opinions, Mike considers: “…probably firebombs.”

THE FIRE REPRESENTS EMBEDDED CONTINGENT CAPITAL

“There are important questions about due process raised by this case,” Ms. Wu commented, “particularly since large parts of the case were heard behind closed doors.”

Ms. Wu announced that she intended to introduce a broad set of reforms to the Chinese justice system, which would greatly strengthen the principles of judicial impartiality, transparency, and fairness.

“If we are able to pass these reforms, after rigorous debate in the People’s National Congress, it will be a great step forward for the cause of justice in China.”

She also noted that tendency of Chinese courts to give exceptionally harsher sentences to those who plead not-guilty (leading to nearly universal pleas of guilty, as in the Rio Tinto case) goes against the principle that a defendant should be presumed innocent. She expressed concern that such cases as these were hurting the reputation of China’s justice system internationally.

Several high-profile international cases had indeed strained relations between China and various Western countries recently. China’s execution on December 29, 2010 of British citizen Akmal Shaikh for drug trafficking, despite emphatic pleas from the British government to consider the defendant’s mental incapacity, drew sharp criticism from British politicians, as well as from Amnesty International. A spokesman from Britain’s Foreign Ministry today welcomed Ms. Wu’s comments.

“During the Akmal Shaikh case, we began to be concerned that China didn’t have regard for procedural fairness in the criminal law,” the official chuckled; “looking back, it seems silly now!” Asked whether he had continuing concerns about China’s justice system, a spokesman for British opposition leader David Cameron responded, “No, I think today’s announcement wraps everything up.” Even Philip Alston, a UN special rapporteur who had earlier described China’s treatment of Shaikh as a violation of international law has backed down, commenting: “Violating international law? What does that even mean!?”

The Shaikh case was not the only cause of friction between China and the West, however. The 11-year prison sentence given and recently upheld, to Liu Xiaobo—a democratic activist—for “incitement to subvert state power” originally brought condemnation from the U.S. and E.U. But in the wake of Ms. Wu’s announcement of reform, these positions were reversed.

“The Chinese government obviously wants to see justice done,” an anonymous E.U. official noted, “and they know what they’re doing, so I think we should just back off.”

A statement released on behalf of U.S. President Barack Obama stated: “On second thought, Liu Xiaobo was clearly guilty. I don’t even remember why we ever protested; if you break the law, you must pay the penalty. It’s not as if China is locking people up randomly without a trial or anything.”

Even Amnesty International has reversed its earlier call for China to increase transparency surrounding its use of the death penalty. A statement on the organisation’s website reads:

“The Chinese government’s announcement that China’s criminal justice system will be reformed to reinforce procedural fairness demonstrates its commitment to international standards of justice. We hereby request that our supporters cease calling for further reform. Click below to send a thank-you email to the Chinese government.”

The uniform praise from the international community has bolstered Ms. Wu’s standing within China, according to many commenters. Should her proposed reforms succeed, she may even consider a run for the Presidency at the next election.

For now, Ms. Wu can rest assured that her comments on the Rio Tinto case have reassured Western leaders – particularly in Australia, where officials had expressed concern about the tough sentence handed down to one of their citizens. Australian Foreign Minister Stephen Smith[1] thanked Ms. Wu for her commitment to revisit the case:

“Once again, we’ve seen China’s commitment to the principles of freedom and justice. I don’t think we need to worry about Stern Hu’s fate anymore,” Smith declared. He went on to dismiss concerns that the proposed reforms won’t be acted upon.

“We have the Chinese government’s word on this – what more do you want? If they didn’t follow through, I think they’d look quite the fool.”

Transparency, here we come!

For some reason Canada seems unwilling to practise flag-planting as much as other countries. Today we have the excuse that most of our flags are hanging over Olympic podiums. But this wasn’t always the case, and our nervousness about throwing flags around is putting our claims of Arctic sovereignty at risk. These claims are important, and could translate into tall cash, since shrinking ice coverage and advancing technology will make it more practical to extract resources such as oil and natural gas from the Arctic seabed in the future.

Don’t let the United Nations Convention on the Law of the Sea (UNCLOS) fool you into thinking that flag-planting isn’t a legal basis for an Arctic claim. According to Part VI of the UNCLOS, states have an exclusive right to extract minerals and other non-organic resources from the seabed of the continental shelf extending from their territory. States are required to make any claims to continental shelves within 10 years of their ratification of the UNCLOS, and claims must be supported with scientific data showing the outer limit of the continental shelf. Because Canada ratified the treaty in 2003, it has until 2013 to submit its claims.

While Canada has been nerdily collecting the required scientific data, other countries have been taking decisive action. In 2007, Russia sent someone 4.3km to the bottom of the ocean under the North Pole to plant a Russian flag. Last fall, Russia also announced plans to drop paratroops on the North Pole this spring (an exercise planned by Artur Chilingarov, the same man behind the undersea flag-planting expedition).

The natural response is that flag-planting and similar gestures are legally insignificant. As then-Minister of Foreign Affairs Peter MacKay put it, “this isn’t the 14^th or 15^th century”. The unimportance of such moves is underscored by the amount of energy all sides put into talking about how unimportant they are. After MacKay’s response to the flag-planting incident, the Russians agreed that it had no legal bearing. MacKay more recently (as Minister of Defence) responded defiantly to the announcement of the paratrooping mission, which the Russians again emphasised had “no legal meaning”. The Danish government also agreed that the undersea Russian flag doesn’t have “any impact on any legal claims”. They should know: Denmark planted flags on the disputed Arctic rock called Hans Island in 1984, 1988, 1995, 2002, and 2003.

Canada put one flag on Hans Island in 2005, Stephen Harper has visited the Arctic four years in a row, and the Canadian Forces have been carrying out Arctic training missions with increasing regularity. But to solidify its Arctic claims, Canada needs more of these unimportant, legally insignificant gestures. Boring old scientific data backing our claims may technically help us in international law, but it won’t do any actual good against the might of undersea foreign flags, since overlapping claims under the UNCLOS will have to be negotiated by the states involved.

In the meantime Canada should be making it rain flags on the Arctic seabed. There is a unique opportunity right now since the world’s flag-planting champions, the Americans, haven’t yet ratified the UNCLOS, and as such haven’t submitted any claims to the continental shelf. If in the meantime Canada acts to create “facts on the ground”, we could gain the same benefits that possessors have in domestic property law. Canada should also be wary of Russian invitations to hold a dialogue on the issue, continuing in April at a meeting of Arctic Council nations in Moscow. According to an article by Canadian time-travellers from the future, Russia will spurn an invitation to become a founding member of the Circumpolar Arctic Treaty Organisation in 2015.

It’s difficult to exorcise someone from property which they possess. Admittedly, the UNCLOS ascribes no importance to moves such as planting flags on the seabed or having politicians visit certain areas. All of the important players in the scramble for the Arctic continental shelf also agree that these actions are legally meaningless. But if you believe that, then I’ve got a patch of Arctic seabed to sell you – dollars or roubles accepted.

IGNORE THEM, UNCLOS

Why, therefore, do we need laws regulating or banning gambling? The fact that problem gambling is a myth takes care of a Hartian positivist/utilitarian justification. This leaves only Fuller and his “natural law”, which in this case amounts to antiquated Victorian morality. With such a foundation, I’d bet that today’s gambling laws are little different in substance from those of a hundred years ago.[1]

Such questions are all the more relevant today because of the rise of online gambling. Anyone who has watched movies on Megavideo knows that there are two rules: 1) there’s a 72-minute limit, and 2) popup ads for a certain gambling website – let’s call it “MartyMoker.com” – are ubiquitous. But are these kinds of betting sites legal? The truth is that in Canada today the answer is not entirely clear.

The situation is complex because online gambling by its nature involves cross-border transactions. It is clear that running an unregulated online casino from within Canadian territory would be illegal. But what about Canadians betting on websites based in other countries? At the present time, there seem to be no laws addressing this question. Internationally however, there are several models we could follow.

In the United States, prohibition is the rule. The 1961 Wire Act, which banned gambling using phone lines, has been used by the federal government as the basis for strong action against international gambling websites with American customers. The Unlawful Internet Gambling Enforcement Act updated the Wire Act and required financial institutions not to transfer funds to gambling sites. This led to the arrest of two Canadian heads of an “e-wallet” company which had transferred money from U.S. residents to online casinos. More recently, the Gibralter-based parent company of the aforesaid “MartyMoker” site paid over $100m to the U.S. government after admitting to targeting Americans in its advertising (though the Megavideo ads remain).

Clearly the American government’s efforts are misguided. Having sampled both interpersonal and internet-based gambling, I can attest that the latter is to be preferred. By providing your credit card number to an online gambling site, you only risk personal insolvency – which is much less painful for my thumbs than becoming indebted to a bookie. For this reason, the British approach – legalisation and regulation – is far more practical.

The 2005 UK Gambling Act made online casinos legal, with regulations to keep internet gambling free of crime, fair and open, and to protect minors and vulnerable adults. The British government has even attempted to work with other countries to draft a code of conduct for online gambling sites, though the U.S. did not participate in these talks. An approach similar to Britain’s has been adopted in other EU countries. But if Canada must choose a system, my personal recommendation is to follow the Caribbean nation of Antigua’s lead.

Antigua has made itself a haven for online casino corporations catering to Americans, who make up a majority of their customers despite the U.S. government’s policies. Furthermore, Antigua has actively stood up for the industry. In 2003 Antigua filed a complaint with the WTO against the U.S. for its anti-internet gambling laws, arguing that the laws in question were inconsistent with the U.S.’s obligations to allow for the free flow of goods and services. The American laws were upheld in a 2005 appeal as “necessary to protect public morals or to maintain public order”. However the WTO held that the American Interstate Horseracing Act, which allows for interstate electronic betting on horse races, creates a discriminatory policy, since equivalent international betting is prohibited. The U.S. has been ordered either to allow comparable international gambling (an International Law of the Seabiscuit?), to outlaw all electronic gambling equally, or to pay compensation to other WTO members. So far the U.S. has not implemented the WTO orders, and Antigua now seeks permission from the WTO to violate American intellectual property law as an enforcement mechanism.

Antigua’s openness to online gambling companies isn’t just logical from a legal standpoint, it’s good business. I myself have contributed several hundred dollars to the Antiguan economy just while writing this article. But if Canada followed Antigua’s lead in international electronic gambling, we could be the next E-Vegas! Just imagine: instant access to a wide variety of home-grown internet gambling operations, with all the corresponding social benefits…

In the meantime, if any burly fellows are asking around for someone of my description named Rusty Shackleford, I don’t know anything about it.

THAT'S ME WITH THE ORANGE HAT

No, an example of the proper response can be seen in Britain today, where an inquiry into the decisions leading up to the Iraq war, headed by Sir John Chilcot, has been underway since July. As the inquiry’s website makes clear, this is not a criminal tribunal, and it is not placing anyone on trial. Rather its purpose is to accurately establish what happened, and to identify lessons that can be learned (though have no fear: if the inquiry finds that mistakes were made, “it will say so”).

Britain’s Iraq inquiry is a nice, typical piece of theatre, with a colourful cast of characters. Those gaining the most attention include Jack Straw, Foreign Minister in 2003; Lord Goldsmith, the former Attorney General; Sir Michael Wood, the Foreign Office’s most senior legal advisor; Wood’s deputy Elizabeth Wilmshurst; as well as good old Tony – and his sidekick Gordon, the soon-to-be-former Prime Minister, will even make an appearance.

The plot is certainly no Lost, but it’s been interesting. In 2002 the UN Security Council passed Resolution 1441, which called on Iraq to comply with weapons inspections. Paragraph 12 is clear that a failure to do so on Iraq’s part would result in the Security Council immediately reconvening to discuss further action. After the resolution was unanimously passed, both the US and UK representatives made it explicitly clear that there was no “hidden trigger” to allow the automatic use of military force in the event of a violation. In the words of the UK representative: “There is no ‘automaticity’ in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion.”

A few months later in 2003, the Bush administration had decided that the British government had decided that military action against Saddam Hussein was necessary. To the extent that they needed justification, the UK government wanted to use Resolution 1441 as the basis for its action. Sir Michael and Ms. Wilmshurst advised Jack Straw that this course of action was illegal. Mr. Straw insists he did not ignore this advice – he merely “did not accept” it. Meanwhile, Lord Goldsmith likewise advised Mr. Blair that the war would be illegal. He later changed his mind based on the legal principle of “I got a letter from Jack Straw” and “American lawyers said it was okay”. Even then however, he warned that although the case for war was “reasonable”, silly old “courts” could disagree. After military leaders and civil servants demanded a yes or no answer, Lord Goldsmith decided military action was legal after all – three days before the invasion commenced. Ms. Wilmshurst resigned in protest, telling her superiors that the invasion was a “crime of aggression.”

Clearly, the above situation is nothing like other examples of leaders who ignored international law and were held to account, such as Slobodan Milosevic or Charles Taylor. For example, Britain’s leaders come from a rich, white country. Nevertheless, there are some kooks out there – such as Lord Bingham, the former Senior Law Lord of the UK – who believe that if international law was breached, then legal redress would be desirable. They couldn’t be more wrong.

International criminal law isn’t like domestic criminal law, except that they both disproportionately affect poor people (or countries). International law has the additional guiding principle that those who break the law need not be charged for their crimes if it would offend the sensibilities of the court to do so. This means that Western-run courts such as the ICC won’t prosecute British or American leaders because it would be undignified to subject such esteemed individuals to the ordeal. Underlying this sentiment is the knowledge that countries like Britain created the ICC, so Western exemption from its remit is implied.

More importantly, there are policy reasons why our (the Western world’s) leaders can’t be subjected to prosecution for violations of international law. Firstly, leaders like Mr. Blair and Mr. Straw have the duty to protect their countries. But to protect us from those who pose a threat to us, our leaders must be free to attack those who don’t. Put another way, our leaders shouldn’t have to worry about being prosecuted every time they make a decision to take action in self defence. That’s the problem with domestic criminal law. You know how if you were about to be attacked by someone on the street you’d be helpless because a crippling fear of prosecution would prevent you from defending yourself? No? Well I’m sorry but the whole argument relies on this logic.

The outcome of Britain’s Iraq inquiry is almost a foregone conclusion. Despite overwhelming evidence, the committee will likely not conclude that there was a decisive breach of international law. Rather, it will find that, although errors were made, British leaders made their difficult decisions in good faith. Such a conclusion is for the best, and should be more than enough justice for the thousands of Iraqis, Americans, and British who have died as a result of the Iraq war. Anything more could risk the dangerous precedent that the West, in addition to creating international criminal law, must be subject to it as well.

Blair and Straw Man

]]> http://www.legalfrontiers.ca/2010/02/how-i-learned-to-stop-worrying-about-international-law-and-love-toothless-inquiries/feed/ 2 http://www.legalfrontiers.ca/2010/01/should-canada-gyp-the-roma/ http://www.legalfrontiers.ca/2010/01/should-canada-gyp-the-roma/#comments Fri, 22 Jan 2010 11:00:26 +0000 Brett Hodgins http://www.legalfrontiers.ca/?p=559 Surprisingly for such a boring country, Canada has on occasion been described as “cool”.[1] But if we want to stick with the cool international crowd, we have to keep up with the latest trends. Most Canadians probably think that discrimination against minorities went out of fashion years ago, but lately one old classic has come back in vogue: persecuting the Roma (also known as Romani, or Gypsies).

Many Canadians may find picking on members of a small diaspora community unappealing. But like other trends such as Ugg boots or skinny jeans, just because we find them distasteful doesn’t mean we can ignore them. And there’s no denying that discrimination against the Roma is back in style – just look at Europe.

According to Amnesty International, and despite a 2007 ruling against the practice by the European Court of Human Rights, Roma children in the Czech Republic and Slovakia are still routinely placed outside mainstream schools in “special schools,” ordinarily reserved for children with mental disabilities. In Serbia and Romania, groups of Roma have been evicted from their “unlawful settlements” (which, in Serbia, were then bulldozed), and forced into even more makeshift accommodations. To be fair though, as one Romanian Vice-Mayor noted, this was really positive discrimination since the evicted Roma were provided with free metal barracks to live in – the lucky devils! In Hungary, incidents of violence against the Roma have been…

Surprisingly for such a boring country, Canada has on occasion been described as “cool”.[1] But if we want to stick with the cool international crowd, we have to keep up with the latest trends. Most Canadians probably think that discrimination against minorities went out of fashion years ago, but lately one old classic has come back in vogue: persecuting the Roma (also known as Romani, or Gypsies).

Many Canadians may find picking on members of a small diaspora community unappealing. But like other trends such as Ugg boots or skinny jeans, just because we find them distasteful doesn’t mean we can ignore them. And there’s no denying that discrimination against the Roma is back in style – just look at Europe.

According to Amnesty International, and despite a 2007 ruling against the practice by the European Court of Human Rights, Roma children in the Czech Republic and Slovakia are still routinely placed outside mainstream schools in “special schools,” ordinarily reserved for children with mental disabilities. In Serbia and Romania, groups of Roma have been evicted from their “unlawful settlements” (which, in Serbia, were then bulldozed), and forced into even more makeshift accommodations. To be fair though, as one Romanian Vice-Mayor noted, this was really positive discrimination since the evicted Roma were provided with free metal barracks to live in – the lucky devils! In Hungary, incidents of violence against the Roma have been on the rise, with 16 recorded by the National Police in 2008, resulting in 4 deaths.

How can Canada keep up with such proactive trendiness? Other countries give a clue as to the best way to proceed. Switzerland, France, Germany, and several Scandinavian countries are reportedly planning to deport large numbers of Roma back to Kosovo, from which they fled due to widespread discrimination and inter-ethnic violence. Italy has gone further, invoking emergency powers created by a 1992 law intended to cope with natural disasters in order to forcibly evict groups of Roma. They’ve made sure that there’s no opportunity for legal redress. Coupled with inflammatory anti-Roma rhetoric from the Italian media and local politicians, this has led to record numbers of attacks on Roma in Italy.

Has Canada missed the opportunity to get in on this blast from the past of a trend? Perhaps not. In July, Canada re-imposed its visa requirement for travellers from the Czech Republic, largely due to surging numbers of refugee claims by Czech Roma. As Immigration and Multiculturalism Minister Jason Kenney noted at the time, all those Roma claims were “undermining our ability to help people fleeing real persecution” – not the sissy faux-persecution outlined above. Today, despite reassuring the Hungarian government to the contrary in October, the Canadian government is considering re-imposing the visa requirement for Hungary because of Roma refugee claims as well.

These moves won’t alone cement Canada’s place among the hip discriminator crowd – particularly since we also reintroduced the visa requirement for Mexico in July due to large numbers of Mexican refugees fleeing rising levels of drug-related violence at home – but it’s a start. They at least demonstrate that we get the central idea of this trendy new wave of discrimination: the application of ostensibly neutral law in a way which disproportionately affects the target group. In each of the European examples mentioned above, the government in question defended its treatment of the Roma by claiming that it was merely applying the law in a rigorous, disinterested manner. In Italy, for example, the government has emphasized that its emergency powers are intended to deal with the “nomad emergency”, and so could apply to any nomad community within Italy – not just the Roma. By the same token, Canada’s refugee crackdown will affect all weak refugee claims, and not just those European Roma whose persecution the government has decided isn’t “real”.

Finally, for those bleeding hearts who don’t think we should discriminate against a historically disadvantaged group just because all the cool countries are doing it, there’s another good reason to pick on the Roma. Immediately prior to and during World War II, when anti-Semitism was still the hottest fashion, Canada consciously and systematically turned away large numbers of Jewish refugees who had managed to escape Nazi-controlled Europe, in some cases sending them back to the Germans. Now if we historically used immigration law to turn away one minority group facing certain death, and then years later didn’t do the same to another group facing sub-genocidal discrimination at home, then not only would we risk being uncool, we’d be inconsistent.

Then imagine how foolish we’d look!

Friends only to the hunchbacked?

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[1] By no less than that bastion of hipness, The Economist magazine!

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The United States has led the world in the long campaign against drugs. A major offensive began in 1988 with the adoption of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which 184 countries have ratified. This convention requires its members to criminalise drug trafficking and possession, and remains in force today. The move, coupled with “Say no to drugs!” and “I learned it by watching you!” public awareness campaigns, must have been successful, as it prompted drugs to strike back. In the 1990s, drugs targeted and killed prominent celebrities, including Kurt Cobain, River Phoenix, and Chris Farley. Refusing to be deterred by these terrorist tactics, the world soldiered on in the war.

In 1998, the UN General Assembly Special Session on Illicit Drugs was held. The session concluded with the adoption of a political declaration, which included commitments to achieving “significant and measurable results in the field of demand reduction,” and to “eliminating or significantly reducing the illicit cultivation of the coca bush, the cannabis plant and the opium poppy” by the year 2008. That these goals have not been met is an understatement. According to a 2009 report by the United Nations Office on Drugs and Crime (UNODC), global opium production doubled between 1998 and 2008, from 4000 metric tonnes to 8000, while cocaine production remained steady at around 800 metric tonnes. But even worse has been the loss of allies in the war.

The Netherlands was of course the first country to fall to the enemy. In 1976 the Dutch began a new policy of distinguishing between “hard” and “soft” drugs, and no longer enforcing the laws against personal possession of the latter – though leaving them on the books in order to comply with the 1988 convention. Drugs took Portugal next, via the 2001 decriminalisation of all personal drug possession. According to this regime, there remain administrative penalties for possession, and trafficking is still a criminal offense. Similar approaches have been adopted in Spain, Italy, the Czech Republic, and the Baltic states – each falling one after another to our relentless foe.

More recently, Latin America has been on the brink of capture. In August Mexico decriminalised the possession of small amounts of any drug. Enemy agents or fellow travellers on Argentina’s Supreme Court next ruled it unconstitutional to prosecute individuals for personal possession of marijuana, and other traitors on Columbia’s Supreme Court followed suit. Brazil and Ecuador could be lost any day now. Canada has not escaped unscathed; drugs took the city of Vancouver – already sympathetic to the enemy cause – in September 2003 with the opening of a safe injection site for drug users.

The International Narcotics Control Board (INCB), the independent and quasi-judicial control organ that monitors the implementation of the United Nations drug control conventions, has not given up on those countries lost to drugs. It maintains that the 1988 convention requires countries to actually enforce, and not just have, criminal laws against possession. In its 2008 report, the INCB continued to recommend that no government treat cannabis as a “soft drug”, and urged that all safe injection programs be terminated. UNODC, however, is wavering. Although in its 2009 report (cited above) it insisted that repealing controls on drugs was not the correct response to failure in the war, it also acknowledged that drug users should be treated with medical help, rather than criminal retribution.

Throughout the war, the United States has remained steadfast against the enemy. In 1999 the US and the government of Colombia unveiled “Plan Columbia”, based on the creative idea that a “war” against an abstract concept can in fact be waged using conventional military force. Under this agreement, the US provided hundreds of millions of dollars to Colombia in (almost exclusively) military aid, to allow the Colombian government to carry out aggressive operations against drug-trafficking rebel groups. The Merida Initiative, unveiled in 2007, is a similar arrangement between the US and Mexico whereby significant funding will be provided for Mexican anti-drug security forces.

Yet even the United States, with its famed stomach for costly, never-ending wars, may be losing its resolve. In October the US federal government directed its prosecutors to stop pursuing actions against medical marijuana users and suppliers, focusing instead on higher-level drug traffickers. Perhaps this signals the beginning of an acknowledgement by America of the growing international consensus that aggressively criminalising drug use merely strengthens large criminal drug cartels. Or perhaps there was more to President Obama’s youthful flirtation with the enemy than meets the eye. This certainly never would have happened under Obama’s predecessor, who had merely been an alcoholic in his youth.

We now find ourselves on the defensive in our war against drugs, reeling from ever-stronger attacks from our cunning foe. But we must not surrender. To do so would be to fall into a terrible world where drug use runs rampant – a horrifying alternate universe where even our own university campus could be saturated with drugs and drug paraphernalia, and where student views on drug use could run from indifference to outright enthusiasm. To avoid this nightmare scenario, we must not let drugs win the war on drugs.

Our diabolical enemy

Striking a blow against Somali piracy, the momentous Dutch decision responded to a simple question: with no credible Somali government, who else was going to do it? And why shouldn’t a country enforce laws for someone else – look at Belgium’s fancy “universal jurisdiction” law. These questions go to a problem at the heart of public international law today: the “law is power” conundrum. In private international law, states in recent history have been moving further and further from a power-based model towards one founded on international comity. Globalisation rhetoric would have us believe that public international law is doing the same, but the Somali piracy issue belies this notion.

Somalia today, along with a handful of other places such as Pakistan’s tribal regions and Longueuil, provides the only instance outside of 18^th century political theory of a “state of nature”, a law-free area devoid of central authority. Unfortunately for Rousseau, these places have turned out to be distinctly Hobbesian. How is law to impose itself in the void? Simply put, it doesn’t. The only law in Somalia is power, and as money, weapons, and territory shift from one faction to another, so does the power and the law. After the movie “Black Hawk Down”, the international community gave up on creating a Somali government, and was content with chaos until it fostered the pirates now plaguing the international shipping world. So it once again became necessary to impose law – this time on Somalia’s seas.

How could the world of laws force pirates to abide by the rules? First there was the comedy comity approach: a year ago the UN Security Council imposed sanctions on the pirates, to be enforced by the titular Somali central government. Unfortunately, as one news source understated it, “enforcing the sanctions poses steep challenges […] as those responsible for much of the anarchy plaguing the country are well outside any traditional finance system.” So it became necessary to lay down the real law: power. This came in the form of Combined Task Force 150, a US-led international naval force (soon to include Canada’s HMCS Fredericton) patrolling the region around Somalia’s coast. Of course for good measure, the naval operation was given legal legitimacy by UN Security Council Resolution 1838. Resolution 1851 even allows states to conduct land-based operations in Somalia to combat piracy.

From a legal perspective, it’s more comforting to see a Dutch court take action against a teenage would-be she-pirate than it is to see unilateral military force deployed in a legal vacuum. Nevertheless, at the very least we can be reassured that the lawless Somali “state of nature” is restricted to affecting just the unfortunate residents of that non-state. The only problem is that in a world where law is power, a territory with no central authority is equally lawless for locals and foreigners.

Prior to the outbreak of large-scale Somali swashbuckling, some Europeans found it very convenient to have a legal no-man’s-land in Somalia. The UN Environmental Program found that Italian and Swiss companies dumped toxic waste in Somali waters in violation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (BCCTMHWTD?). Other Western companies capitalized on the non-existence of a Somali government to help themselves to the fish, shrimp and lobster of Somalia’s territorial seas – and used prohibited fishing methods. The pirates with their brute force have been more effective than the “government” at combating these practices. The Belgians would understand: if the pirates didn’t enforce these laws, who else would?

The power dynamics that impel all public international law tend to be hidden (sometimes successfully, sometimes not) behind international dialogue. But in Somalia, where there is no one to have a dialogue with, the driving force at the core of public international law – power – is open for all to see. In this legal void foreigners can treat the territory as a restraint-free playground; pirates can then hijack foreign ships with (relative) impunity; and finally, foreign militaries can crack down on the pirates.

And with the Dutch ruling, so can foreign courts! Though if they had started sooner there might not be so many wannabe-pirates enjoying swashbuckler hospitality as we speak…

Circumnavigating the globe, eh?...