Posts in the category ‘Criminal Law’
BY Larissa Smith
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Commercial Law
Criminal Law
Finance
Public International Law
Taxation
Privacy in Switzerland Under Threat from the IRS
Woody Allen once said, “If only God would give me some clear sign! Like making a large deposit in my name at a Swiss bank.” For decades, the notion of having a Swiss bank account has been viewed as a status symbol. With roughly 27% of the world’s foreign holdings in 2008 (an estimated $2 trillion – Bondi, Bradley J. 2010), the Swiss have certainly cornered the international market on discretely protecting assets. In short, Switzerland has been the prestigious place for Americans to hide money from the IRS. But thanks to proceedings between the IRS and the Swiss Parliament, such references may soon become no more than an outdated joke.
This past summer, the IRS took serious steps in an international attempt to cut down on tax evasion through the use of offshore accounts in Switzerland. The IRS has entered into an agreement with the Swiss Parliament to release over 4,000 names of U.S. citizen clients of UBS AG with significant holdings in Switzerland.
The trouble began when the IRS decided to investigate UBS for helping Americans evade US taxes. UBS was facing potential criminal prosecution, which could have threatened the very existence of one of the largest and well-reputed banks of our time. In a move to save the bank, UBS executives pressured the Swiss government for ways around the secrecy banking laws to give the…
Justice Prevails?: Notes on a visit to the ICTY
On Thursday, October 20th, I found myself in The Hague, the so-called ‘legal capital of the world’, evaluating my sense of international citizenship. What better way to spend one’s vacation then to visit the International Criminal Tribunal for Ex-Yugoslavia (ITCY)? As a self-fashioned ‘global citizen’, I decided to spend a few hours observing the trial of Zdravko Tolimir (IT-05-88/2), a commander within the Bosnian Serb Army. Tolimir is currently indicted for genocide, conspiracy to commit genocide, exterminations, murder, persecutions, forcible transfer, and deportation in the time period of July to November 1995.
Visiting the ICTY
The Hague is a rainy place with old, colonial buildings and extensive bike paths. En route to the ICTY I passed by the International Court of Justice and a handful of other international legal bodies. After locking up my bike, I prepared for the building security. The guard was friendly and informed me that he had a masters degree in international law from Romania – but that everyone at the UN had to start at the bottom.
After a second checkpoint, we were allowed access to the courts. The observation area was empty, save two guards. Every chair had accompanying headphones which worked with simultaneous translator devices, allowing access to the proceedings in English, French, Bosnian/Croatian/Serbian (BCS), and Albanian; but speakers in the room played the audio aloud in English. The observation…
BY Brett Hodgins
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Criminal Law
Human Rights
Public International Law
Satirical
The More You Know: Lessons in International Justice
Today, holding world leaders responsible for crimes committed while in office can generally be achieved through one of two bodies: the International Criminal Court (ICC); or ad hoc tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY), or the Special Court for Sierra Leone (SCSL). But for international justice enthusiasts, which route is preferable? In fact, each option has its own advantages and disadvantages, and perhaps these bodies could learn some lessons from one another.
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…
Regionalization of International Criminal Law on the African Continent?: Ubuntu and Amnesty
On 15th December 2009, the African Court on Human and Peoples’ Rights (ACHPR) rendered its (much awaited) first decision – In the Matter of Michelot Yogogombaye v The Republic of Senegal.[1] In the case, Michelot Yogogombaye brought an application against Senegal with a view to suspend Senegal’s ongoing legal proceedings against Hissène Habré, former President of Chad.[2] Habré is suspected of complicity in crimes against humanity, war crimes and acts of torture in Chad between 1982 and December 1990.[3] Yogogombaye alleged that Senegal had violated the legality principle by amending their Constitution to authorize “retroactive application of its criminal laws, with a view to trying exclusively and solely Mr. Hissène Habré”.[4] Although the ruling did not move beyond the merits in finding that Senegal had not accepted the Court’s jurisdiction,[5] some of the arguments outlined deserve attention. In this case note I will focus on the arguments on the issues of amnesty to draw out the regional flavour in the approach.
Amnesty and Ubuntu: Shared objective?
An interesting feature in the judgment was that Yogogombaye urged the Court to order that Senegal utilize the philosophical concept of ubuntu to develop a national “Truth, Justice, Reparations and Reconciliation” Commission for Chad on crimes committed between 1962 and 2008.[6] Ubuntu (or African Humanity) is a philosophy that attempts to capture the intersection of justice and humanity…
Piercing the Veil of State Immunity: Exceptions to the rule
Incumbent head of state immunity at international law is a multi-layered issue. Whether an incumbent head of state always has immunity therefore depends on certain variables. In this short piece, I will discuss the current state of the law on state immunity.
Revisiting old tensions: Horizontality
Incumbent head of state immunity hugs the boundaries of the verticality/ horizontality discourse. Although derived from customary international law, state immunity is rooted in the horizontal level through its objective of maintaining a peaceful coexistence[1] between States and ensuring states’ sovereignty. As underscored in Arrest Warrant[2], courts at the horizontal level cannot interfere with head of state immunity because such an action would hinder the effective performance of the official’s duties. At this level, there is no exception for State official immunity – not even for derogation of jus cogens norms.[3] Although this may seem a high price to pay to grease the wheels of international camaraderie, some argue[4] that absence of immunity in relation to human rights violations is more likely to hinder international cooperation than it is to significantly increasing protection of human rights.[5]
Peeling back the layers: Ratione materiae and Ratione personae
Viewed through a human rights lens, the finding of absolute immunity in Arrest Warrant is contentious. However, I argue that in failing to make a clear distinction between ratione materiae and ratione personae, the Arrest…
Judicial Reform Coming to China! International Community Elated!
April 1: This morning, China’s Minister of Justice Wu Aiying held a press conference in which she declared the need for greater judicial transparency. The announcement came in the wake of a decision involving four executives of the mining corporation Rio Tinto, who were accused of bribery and stealing trade secrets. The defendants were sentenced to 7-14 years in prison, including 10 years for Australian Stern Hu.
“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…
Eroding Impunity for International War Crimes: Criminal Tribunals or National Reconciliation Commissions?
Next week, the International Criminal Tribunal for the Former Yugoslavia is hosting a conference to look back at the 17 years of criminal trials they have held since their founding. Looking back and looking forwards at the legacy of the ICTY and truly calculating its impact is a daunting prospect. Since its creation, the ICTY has been charged with prosecuting the most egregious violations of international humanitarian law during armed conflicts in the Balkans in the early 1990s. The UN Security Council established the Tribunal with Resolution 827 in 1993, with the conviction that “the prosecution of those most responsible for the commission of atrocities during the conflicts would contribute to the restoration of peace and security in the former Yugoslavia.”
Almost two decades later, the spectre of armed conflict no longer looms on the horizon for the former Yugoslav republics, but questions of nationalism and identity are still pervasive. Today’s peace in the Balkans is an uneasy one, punctuated by political flareups. The 2008 declaration of independence by Kosovo is but one example of the recent history of contested outcomes; the matter is still before the International Court of Justice.
But perhaps the ICTY has helped to entrench the notion of turning to courts – whether domestic or international – as a recourse for grievances. “Assessing the Legacy” of the ICTY considers exactly these questions. Although…
How I Learned to Stop Worrying About International Law and Love Toothless Inquiries
Increasingly in recent history, it has been the case that when egregious violations of international law occur resulting in thousands of deaths, the Western world will (afterwards) act to see justice done. Prominent examples include the activities of the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia, and, to an extent, the International Criminal Tribunal for Rwanda. But what is the proper response when it is Westerners who egregiously violate international law, resulting in thousands of deaths? If you answered “something similar”, then you are wrong. Shame on you.
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;…
Corruption of Waldo: Where in the world is President Umaru Yar’Adua
The Nigerian president, Umaru Yar’Adua, has been away from his country since November 2009. No one has seen him. The official line is that he is in Saudi Arabia receiving treatment for an undisclosed illness. On January 12th 2010, he finally acknowledged his countrymen’s concern by calling BBC radio to make a brief public statement to prove that he was not yet beyond death’s door. On January 13th, a federal court declared that Vice President Goodluck Jonathan can perform all presidential duties while the president is away. However, the judgement is ambiguous: Jonathan’s new role lends him no substantive constitutional authority to be acting president, except that transmitted to him by the president.
What has been most bewildering about the president’s absence is the subtle yet apparent lack of leadership that continues to cloud Africa’s most populated nation. Legally, the January 13th ruling was supposed to put the country back on track. Yet, the judgement has failed to soothe tempers. As recently as January 27th 2010, the Nigerian cabinet and Senate continue to be at odds regarding who is governing their country. The question seems to remain: how do we account for the governing activity from November 2009 to now? In particular, what of the 2010 budget that is being negotiated in the president’s absence? It is true that in the time Yar’Adua has been away,…
Drugs Are Winning the War on Drugs
It’s been forty years since US President Richard Milhous Nixon first declared war on drugs, famously stating: “You’re either with us, or you’re with the drugs.” Yet today, the world is facing defeat at the hands of drugs – mankind’s greatest, and most seductive, adversary.
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…
