How to Nab Julian Assange

Aug 272012
 

As you may be aware, Julian Assange, founder of WikiLeaks, has been holed up in the Ecuadorian Embassy to avoid deportation/trial/etc.  In the Christian Science Monitor, Kantathi Suphamongkhon makes a case for how Assange could be arrested without breaking international law.  ”How to arrest Julian Assange without violating international law” is an interesting read.

In other news, Russia warns the United States against “violating” international law in the Syria conflict.  While this is not solely a human rights issue and the United States does not have a stellar human rights record, it is always ironic to to be lectured by Russia, China, Syria, and the like.  Free Pussy Riot, anyone?

Banning International Law (Again)

Feb 292012
 

I do not wish to harp on the issue of banning international law in state courts, but alas, I will…

Many US states are concerned about Islamic Sharia law overtaking their judicial systems, so many states – beginning with Oklahoma – have decided to take action banning Sharia law, thus often prohibiting state court judges from considering principles of international law.  (The vast majority of issues before state courts would never involve international law.)

The web site Gavel to Gavel, which bills itself as “a review of state legislation affecting the courts,” has a rundown on states banning use of Sharia or International Law.  Take a look.

This & That

Dec 162010
 

One of the wider-reported state ballot initiatives in the November 2010 US elections was the state of Oklahoma’s decision to prohibit international law, including Islamic/Sharia Law.

In the election’s aftermath, there are news reports of more US states considering a ban on religious/foreign law, including Arizona and Florida.

I normally stay out of US political issues, but it seems like much ado about nothing – is there any documented evidence of a US court adopting (or considering to adopt) Sharia law?   Seems far-fetched to me.

Equally as far-fetched is the amount of political controversy generated by the US Senate’s proposed ratification of the new START treaty.   News agencies are reporting that the Senate will consider the treaty before the instillation of the new Congress.

A Note on Crimes of Aggression

Sep 162010
 

Earlier this summer, I blogged about the addition of crimes of aggression to the International Criminal Court’s jurisdiction.  The ICC adopted the resolution after years of controversy, and since the resolution’s adoption, there has been increased debate on the new crime’s potential effectiveness.

The ICC’s ability to prosecute a crime of aggression revolves around a very loose definition, and determining when such a crime has been committed will be primarily (but not exclusively) decided by the United Nations Security Council.   This creates a host of issues, including whether any state or person will actually face the charge; whether actions such as humanitarian missions could be considered acts of aggression; and whether the crime will become politically charged by the political actors on the Security Council.

I find the definition to be too malleable, and obstacles standing in the way of effective enforcement are immense.  I could write at length explaining this, but in the interest of delivering a concise blog, I thought it might be helpful to at least highlight other resources/opinions on the matter.

First, the Council on Foreign Relations has published a brief look at the crime, which is summarized:

The idea of holding national leaders to account for waging wars of aggression has moral appeal and historical pedigree.  But whether the International Criminal Court can try such cases is a thornier issue.

The full text can be found here.

Another contrarian view can be found at the Foreign Policy Blog, in a posting written by David Bosco.   He chronicles a potentially controversial, yet pragmatic position.

Finally, if you are interested in a longer, more detailed study of the problem, you should consider Oscar Solera’s writings.  Mr. Solera has written extensively about adopting a standard for a crime of aggression, and earlier this year, before the ICC Conference, published a paper, The Definition of the Crime of Aggression: Lessons Not Learned.   For those invested in the topic and unfamiliar with Mr. Solera’s writings, I highly recommend it.

Chevron/Ecuador – A Reader’s Question and New Developments

Sep 022010
 

As I noted Tuesday, a North Carolina US District Court sided with Chevron in its attempt to compel documents related to the documentary “Crude” as well as requiring respondents to attend a September 8 deposition.

The court reached its holding based on evidence that the plaintiff’s lawyers had committed fraud in the Ecuadorian proceedings.  The district court stated:

While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any court.

I received a reader question regarding the validity of a US court recognizing such fraud and “intervening” in ongoing litigation in another nation.

Would this be uncommon?  Perhaps, but that is not what occurred in this particular instance.  Hopefully, I can provide a satisfying, if overly simplistic, explanation.

Chevron is in ongoing litigation in an Ecuadorian court.  Chevron recently claimed that they became aware of footage from a documentary, shot by an American documentary team, that indicated that individuals involved in the Ecuadorian case might have engaged in fraudulent behavior.  As a result, Chevron wanted footage from the documentary to use in their case.

Chevron went to a US district court to compel the documentary makers to turn over the footage to Chevron.  By doing so, Chevron did not directly ask the court to intervene in the Ecuadorian proceedings, but to merely compel “discovery” of the documentary footage.

This is allowed under a federal US statute  [28 U.S.C. 1782(a)], which allows, under certain circumstances/procedural guidelines, a US federal court to order a respondent to produce documents or testimony for use in a foreign court case.  The court weighed many factors, and ultimately allowed Chevron to have access to the footage.

The US district court did not intervene in the Ecuadorian case; instead, they allowed Chevron have access to potential evidence that was located in the United States.

Of course, that was over simplistic, and only representative of this one sub issue.  This case has been going on for years, both in Ecuadorian and United States courts.  This is merely the most recent in a string of developments and litigation tactics pursued by both sides.

This case is ultimately about whether toxic waste was deliberately dumped by Texaco into the Amazon.

Chevron has instigated proceedings in multiple jurisdictions (from the US to Ecuador and back), and recently the plaintiffs have pointed to Texaco’s (now part of Chevron) internal audits that show that they were aware of the contamination.

On August 28, the Ecuadorian plaintiffs filed a brief to quash subpoenas in part based on these internal audits.  The audits can be downloaded in pdf here and here.

News Alert: Suit Filed Against Targeted Killings

Aug 312010
 

The Associated Press is reporting that the ACLU and the Center for Constitutional Rights have filed a suit against the President and CIA Director to block targeted killings of people overseas on Constitutional grounds.  This is directed at the United States’ target killings of terrorist suspects abroad.  According to the article:

The lawsuit was filed for the father of a U.S.-born cleric believed to be hiding in Yemen. It seeks a court order saying targeting and killing U.S. citizens violates the Constitution and international law except when there’s no other way to stop an imminent threat.
The cleric is believed to have helped inspire the attempted bombing of a Detroit-bound airliner Christmas Day. He’s on the CIA’s list of targets.
The CIA says it follows American law.
The full article can be found here.  This is certainly something I will be following.

Chevron/Ecuador UPDATE

Aug 302010
 

For a few weeks I have been posting regarding the ongoing Chevron trial in Ecuador.   On August 17, I blogged about Chevron’s attempt to compel discovery regarding footage obtained in making the documentary film “Crude.”

Today Dennis L. Howell, United States Magistrate Judge in the United States District Court for the Western District of North Carolina ordered the production of documents related to the case by September 1 and to participate in a September 8 deposition.  The order stated, in part:

To the extent that the subpoena seeks materials that may arguably be subject to an attorney-client privilege, an exception to such privilege exists, “the crime-fraud exception,” where attorney-client “communications are made in furtherance of a crime, fraud, or other misconduct.” In re Sealed Case, 754 F.2d 395, 399 (D.C.Cir.1985). While respondent has argued that it would be inappropriate for this court to apply its American view of the role of an “independent court appointed expert” to that of an auxiliary court appointed in an Ecuadorian court, it is very clear from the words used by plaintiffs’ lawyer in the meeting – - some few weeks before the expert sitting in the room was in fact appointed by the court – - that Chevron did not know that the expert report was being ghostwritten by experts for the party opponent, that it would be important for no one at the meeting to tell Chevron that such had occurred, and, to the amusement of those in attendance at the meeting, Chevron would not realize what had happened to them with the independent report.  While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any court. If such conduct does not amount to fraud in a particular country, then that country has larger problems than an oil spill.

The trial (and drama) continues…

On Sharia Law…

Aug 302010
 

Last week I blogged that a Saudi Arabian court was considering snapping a defendant’s spinal cord, which is justified under Sharia law.   The posting initiated several private discussions with friends and colleagues regarding the acceptance of Sharia law under international law.

I follow a variety of developments in international law ranging from political issues to business law to human rights, but at some point these spheres intersect.   I am often conflicted about the intersection, and to what degree human rights concerns should effect international business/political relations.  This concern is certainly not unique, and papers/articles on these issues have been written/dissected ad nauseam.

One of my biggest intrigues is whether countries practicing strict Islamic law will evolve into more open, less rigid, and less violent systems of justice.  And in the meantime, how should other nations, businesses, general society, and international organizations confront Sharia law?

I am going to do something unusual by linking the Washington Post’s blog on faith.  Ali Gomaa, Grand Mufti of Egypt, discusses whether “Sharia law [is] reconcilable with modernity.”

I am linking neither to join the political discussion on constructing a Mosque near the site of the World Trade Center nor to create a discussion on the validity of Islamic beliefs.  Instead, I wish to highlight Mr. Gomma’s argument concerning Sharia law as I try to process it against the reality of how Sharia law is practiced in Islamic nations.

What are your thoughts?

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