by Michael Kelly

by Michael Kelly

Thom Shanker and David Sanger are reporting in the New York Times today that both Defense Secretary Gates and Secretary State Rice advocated for Bush to shut down the enemy combatant detainee operation at Guantanamo Bay, citing Bush’s own public hope that it could be closed as well as the growing domestic/international negative impact that G’tmo continues to have on U.S. (essentially putting America in the role of hypocrite when it pushes for strengthened human rights elsewhere). However, Vice President Cheney, backed by Attorney General Gonzales successfully convinced the president otherwise, noting that there is no clear answer on what else to do with the detainee population.

There are about 385 detainees still being held at G’tmo, some of whome are awaiting trial four years after their capture before the hotly contested and legally questionable military tribunals. Secretary Gates did, however, successfully kill plans to build a $100 million courthouse and extended detention compound at G’tmo, arguing that to move forward with that project would amount to admitting that the detainee operation would be more permanent in nature than the government has been willing to admit thus far.

Typically when a Secretary of Defense and Secretary of State align on a given foreign/security policy issue, they carry the day. That Gates and Rice were unable to sway the president to effectuate his own repeated promise to close the facility in the face of countervailing arguments from the Vice President and Attorney General speaks volumes about the continuing success of Cheney’s hypnotic spell over the president. Whether that effect will be ameliorated on this particular issue by the imminent demise of Gonzales remains to be seen; but I doubt it. Cheney has proven time and again that he’s quite comfortable being the lone voice on issues that he cares about while (usually successfully) concealing his tracks.

Friday, March 23rd, 2007 10:15 am | Posted in: Law Blog, International Criminal Law, Counterterrorism, Criminal Law, Public International Law, International Humanitarian Law, International Human Rights Law | Trackback | 0 Comments
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by Michael Scharf

Terrorism is not funny.  But America’s counter-terrorism policies and tactics sometimes border on the absurd.

Exhibit A: Just last week the AP ran a story that reported that the FBI had issued a “cautionary bulletin,” stating that “suspected members of extremist groups have signed up as school bus drivers in the United States.”  (See Cleveland Plain Dealer, March 17, 2007, at A7).  The article went on to report that the FBI spokeman, Rich Kolko, said “There are no threats, no plots and no history leading us to believe there is any reason for concern.”  Wow, that’s useful.

Exhibit B: When I was in the airport yesterday I heard over the loud speaker the all-too familiar words: “Warning, the terrorism threat level has been raised to Orange.”  Orange (“high”) is the second highest threat level, just below “severe” and above “elevated.” In my job I fly often, and since the Advisory System was launched in March 2002, I can’t remember ever hearing that the threat level was less than orange.  During an Orange Threat we’re supposed to be hyper vigilent for suspicious behavior, but it’s like having one-too many fire drills, no one is paying attention anymore.

Exhibit C:  Who can forget FEMA’s prescription for surviving a dirty bomb or biological attack: put up plastic sheeting with duct tape to create a “safe room” when directed by authorities.  (See Washington Post, August 6, 2002, at A1).  This created long lines at Home Depot, but it immediately struck me as about as useful as the “duck and cover” drills the government required when I was a kid  – as if hiding under a school desk would save you from an atomic blast.

We can laugh at it, sure, but then one thinks, “what is this really about?”  Is this merely CYA so that government officials can deflect blame if there is another major terrorist incident?  Do government officials want to keep us in a state of intense fear to justify their legislative agenda?  And what’s the cost to society?

If you want to read a thought provoking book that attempts to answer those questions, I recommend, Bob Mueller’s “Overblown: How Politicians and the Terrorism Industry Inflate Security Threats, and Why We Believe Them”  available at:

For an upcoming AIDP American National Section Conference, I’m contemplating convening an interantional symposium of experts to discuss and debate this issue, and I invite your ideas about possible speakers.

Michael P. Scharf

President of the AIDP American National Section

Professor of Law and Director

Frederick K. Cox International Law Center

Case Western Reserve University School of Law  

Thursday, March 22nd, 2007 5:29 pm | Posted in: Law Blog, Counterterrorism | Trackback | 0 Comments
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ICC prosecutor says Bush, Blair could face war crimes investigation

by Greg McNeal


Writing in the comments, GoochE320 says: “You should elaborate on what you mean by ’sovereignty issues.’…”

First off, thanks to GoochE320 who is our first commenter!  Welcome aboard, tell your friends about us, etc. 

Indeed, let me clarify.  The sovereignty issues I refer to are U.S. notions of sovereignty.  The very American idea that foreign governments/institutions will not tell the U.S. how to conduct its affairs–including who we prosecute or don’t prosecute.  I’m not taking a position on this notion here, other than to say that it is a real one which could pose an obstacle to the U.S. handing over a former President.  Some representative concerns voiced by U.S. ICC opponents are best summed up here:

Given the importance of the United States in promoting world security and keeping in mind our national security interests, the United States has been and should continue to be concerned with the adverse effects that the ICC, as currently proposed, might have on our foreign policy decisions and the threat of ICC prosecution facing everyone in our military chain of command, from the President as Commander-in-Chief to our soldiers, sailors, airmen and marines who carry out American military operations. In addition to these compelling foreign policy and national security concerns, the ICC poses a serious concern under the U.S. Constitution.

I use the term “sovereignty issues” to sum up the concerns of opponents. 

According to a Jurist report:

US President George Bush and UK Prime Minister Tony Blair may one day face war crimes charges before the International Criminal Court (ICC) at The Hague, according to ICC Chief Prosecutor Luis Moreno-Ocampo.  Moreno-Ocampo said Sunday that the ICC could investigate allegations of war crimes stemming from the conduct of coalition forces in Iraq, so long as Iraq agrees to ratify the Rome Statute and accede to ICC jurisdiction.

A related Telegraph report states: “Luis Moreno-Ocampo urged Arab countries, particularly Iraq, to sign up to the court to enable allegations against the West to be pursued.” 

Back in 2002, Kenneth Roth of Human Rights Watch predicted such a possibility, although he was speaking more about British troops than Tony Blair himself:

 The ICC thus could prosecute British forces for war crimes committed in Iraq, even though American forces would be exempt. The ICC would act only if British authorities were unwilling or unable to seek justice, but even this limited oversight is significant.    

The Pentagon detests the ICC and wants to deny it any operational impact. But that is no longer an option for Britain. The criminal liability of its troops is now on the line. 

The scenario seems overblown to me.  I can’t imagine a circumstance where the United States would allow the ICC to prosecute a former president.  There are far too many sovereignty issues.  Moreover, with only 60% of Americans supporting referral of Darfur to the ICC— a case which does not implicate sensitive issues of American sovereignty – I think it unlikely there would ever be support for allowing a former president to be prosecuted in the ICC. 

Thursday, March 22nd, 2007 3:34 pm | Posted in: Law Blog | Trackback | 3 Comments
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The Interesting Case of Detainee Hicks and His Father

by Greg McNeal

Austalian Guantamo Detainee David Hicks’ has been helped from time to time by the sympathetic comments of his father, Terry Hicks.  However his father’s statements have not always been so helpful.

Today, Terry Hicks described his apprehension about visiting the prison and seeing his son for the first time in three years. 

While his father comes off as sympathetic in many media accounts, as early as December 14, 2001 in The Daily Telegraph (Local Section P. 2, no direct link available), Terry Hicks was quoted saying about his son: “I think of a terrorist as someone with a bomb strapped to him, but he is a terrorist in our yes as he’s fighting against his own kind.” 

Terry Hicks may in fact be called as a witness against his son.  Colonel Davis, Chief Prosecutor for the Office of Military Commissions stated “”The very first interviews I can find when someone referred to him as a terrorist was Terry Hicks,”

It will be interesting to see how Terry Hicks plays into things and if he takes the stand, it certainly will make for headlines. 

Thursday, March 22nd, 2007 3:01 pm | Posted in: Law Blog, Counterterrorism | Trackback | 0 Comments
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On What We Can Become – Thoughts Prompted by Mike and the “Lucifer Effect.”

by Christopher Blakesley

Mike’s comment on the “Lucifer Effect” reminded me of thoughts I have been having over the past several years on the impact of good literature on helping us understand ourselves, the law, and each other. I have been writing these down and in my books and articles. I have expanded upon them in works currently in progress or at press.

Herman Melville’s genius helps us to understand our tendency to hate and to demonize “the other” as “the enemy,” as a means to compensate for our own frustrations, neuroses, and general inadequacy to cope.

“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick. He piled upon the whale’s white hump the sum of all the general rage and hate felt by his whole race from Adam down; and then, as if his chest had been a mortar, he burst his hot heart’s shell upon it.” Herman Melville, Moby Dick (1851).

Melville’s lovely and powerful novel provides a prism through which we can see our own potential for destructive rage, which may blind us, preventing us from placing limits on our own conduct or even seeing our conduct as being evil. He makes us look at ourselves and face our potential for evil. Melville’s insight penetrates to the core of the major danger facing many societies today. He allows us to sense how values, morals, and “the law” can be manipulated to cause feelings that produce bile, fear, and hatred, which prompt actions that actually erode the very values claimed as the cause for the action. Sometimes a group is manipulated to feel a certainty that all truth, right, justice, or God reside with them. This manipulation may prompt evil action. Indeed, even the sense that one must act in certain ways to protect his or her group can be manipulated. Evil erupts, if the opportunity arises.

Another masterful work that has had a tremendous influence on me is Primo Levi’s “The Drowned and the Saved.” Levi’s idea of what it means to be human is poignant and radiant. Levi wrote that he was “trying to answer the most urgent question: How much of the concentration camp world is dead and will not return ….? How much is back and is coming back? ….” As you know, Levi was a survivor of Auschwitz in 1944, who eventually committed suicide (or so most believe) by falling down the deep center of the circular stairwell of his apartment building. It seems that his torture continued throughout his life and included the haunting and terrifying question: why do otherwise good people allow themselves to commit or to acquiesce to the commission of the most heinous acts?

In the face of terrorism or crimes against humanity, fear may become rage and people turn to vengeance. Fear is easily manipulated into rage. This causes what Albert Camus called an ugly, infernal dialectic–a self-destructive death dance. See Albert Camus, Appeal for a Civilian Truce in Algeria (lecture given in Algiers, Feb. 1956), reprinted in Albert Camus, Resistance, Rebellion, and Death 131 (J. O’Brien trans., 1960; Albert Camus, Reflections on the Guillotine, essay, in id., at 174, 198; Albert Camus, Neither Victims Nor Executioners (D. MacDonald trans., 1972). Leaders with a melodramatic bent, blind their adherents to any humanity on the other side. The people are made to believe that they are fighting the devil himself, and that all truth is being destroyed. We demonize, using terms like:

Humans easily fall into the trap of being manipulated to demonize “others,” calling them “terrorists,” “evil-doers,” or other villainous epithets to generate hatred and to justify criminal acts against them. This was not lost on Adolf Hitler, who, in his Mein Kampf, referred to Germany’s failure in World War I, as being in part due to not having sufficiently utilized this propaganda tactic of “making monsters of their enemies” in the eyes of the German Volk.

Albert Camus, in his Appeal for a Civilian Truce in Algeria, describes this as falling into a miasma of evil, an “infernal dialectic that whatever kills one side kills the other too, each blaming the other and justifying his violence by the opponent’s violence. The eternal question as to who was first responsible loses all meaning then . . . [Can’t we] at least . . . refrain from what makes it unforgivable . . . . the murder of the innocent.”

These are a few of the thoughts I have put down in my recent book, Terrorism and Anti-Terrorism: A Normative and Practical Assessment (Martinus Nijhoff/Brill/Transnational publishers 2006), noted in the book section of this blog, and have developed further in speeches and articles in progress.

Wednesday, March 21st, 2007 11:07 pm | Posted in: Law Blog, International Criminal Law, Counterterrorism, Criminal Law, International Human Rights Law | Trackback | 1 Comment
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Interesting Political Ripple Effects of ICJ Genocide Ruling…

by Michael Kelly

Carla Del Ponte, chief prosecutor for the International Criminal Tribunal for the Former Yugoslavia, came out swinging against the ICJ’s recent decision that Serbia did not commit genocide in Bosnia in 1995 when Bosnian Serb nationalist forces massacred over 8,000 Muslim men and boys in Srebrenica.

Not only was she miffed at the court’s finding, but she criticized the E.U.’s response to it as overly “muted,” noting that there was no ackowledgement in the E.U.’s response that genocide had in fact occurred, a point of contention still in dispute politically for the Balkan region. Although the ICTY found that genocide had occurred, as did the ICJ – even though it refused to hold Serbia responsible, politicians in Republika Srpska (the Bosnian Serb region of Bosnia-Herzegovina) and Belgrade are still resisting that characterization.

In fact the Serbian Prime Minister of Republika Srpska, Milorad Dodik, has denied that genocide took place – although he did apologize for what he called heinous crimes. This set off a political firestorm in Srebrenica and has caused the city’s Muslim population to seek special autonomous status within Republika Srpska. Local Muslim politicians are threatening to take their populations out of the city and out of that part of Bosnia unless they get what they want. Sadik Ahmetovic, an MP, said, “If there is any morality in the international community, it will not allow the victims of genocide to be ruled by those who committed genocide on them. Either Srebrenica will be outside the jurisdiction of the Serb Republic or we shall all move out of Srebrenica.” The town was 90% Muslim before the war, but is now a majority-Serb city.

Ms. del Ponte’s concerns are understandible. Speaking to the press about her disappointment with the E.U.’s response, she said, “This is truly a potentially devastating development given the tribunal’s completion strategy.” (The ICTY plans to wrap up its affairs by 2010). She also noted that she was “worried that we will never see Mladic and Karadzic in our custody. That would have a devastating impact on international justice and on our battle against impunity.” Allowing the Serbs to continue sheltering the two masterminds of the genocide would be a travesty indeed.

Wednesday, March 21st, 2007 5:02 pm | Posted in: Law Blog | Trackback | 0 Comments
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ICJ Opinion in Bosnia v. Serbia

by Mark Drumbl

In February, the International Court of Justice (ICJ) ruled that, although Serbia was not directly responsible for committing genocide in Bosnia, it was responsible for having failed to prevent genocide at Srebrenica. The ICJ did not award damages against Serbia.  It ruled that the issuance of the judgment alone constituted satisfaction for Bosnia.

Although the ICJ is not a criminal court, this judgment is of considerable importance for criminal lawyers.  This is because the ICJ ruled that individual criminal responsibility under the Genocide Convention, which is the basis for institutions such as the ICTY, does not extinguish state responsibility under the Genocide Convention.  In my view, this is an important finding.  As I argue in my forthcoming book, Atrocity, Punishment, and International Law (Cambridge University Press, 2007) (more info in books section of this blog), it is important for law in the wake of atrocity to be pluralist and diverse — to welcome criminal, civil, restorative, and local modalities of accountability.  To the extent that accountability can be horizontally expanded to include more than just individual criminal responsibility for a handful of perpetrators, we can move toward a broader actualization of justice. Insofar as the ICJ relied heavily on the work of the ICTY in its opinion, this suggests the emergence of a cooperative international community of courts.

To be sure, the ICJ judgment has led to a lot of disappointment. Many observers in the Balkans do not undersand how Serbia could have been found not to be directly responsible for genocide. For a lot of folks, the judgment is legalese. Others see the ICJ concerned with its own legitimacy and, hence, walking a narrow tightrope in which it gave a bit to all sides. In an interview I did with Croatian media, even when I pointed out the groundbreaking nature of the ICJ’s ruling holding a state responsible for failing to prevent genocide, the response was: well, it couldn’t have been that serious in that no damages were awarded.  But awarding damages against an entire state also gives rise to difficult questions. Who ends up paying? All citizens of that state? Is that fair? Although prosecuting a small number of criminal defendants undercaptures the many layers of public responsibility that make atrocity truly massive, sanctioning an entire state may lead to overcapture in that individuals who resisted are found responsible.  How to strike the balance? I consider some of these questions in my own published work. I hope that these are some topics that commentators and posters on this blog will consider as well.

Monday, March 19th, 2007 7:06 pm | Posted in: Law Blog, International Criminal Law, Public International Law, International Human Rights Law, Tribunal Materials | Trackback | 2 Comments
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On Terrorism and Whistle-blowing

by Michael Scharf

“U.S. Lets Whistle-Blowers Lose Jobs,” read the front page headline in this morning’s newspapers (USA Today, March 14, 2007). Should we be concerned?

Without government whistle-blowers who had the courage to go to the press, we wouldn’t know about the Watergate scandal in the 1970s or the Iran-Contra scandal in the 1980s. We wouldn’t know that the government tried to mislead the public by denying the existence of genocide in Bosnia and Rwanda in the 1990s. We wouldn’t know that the FBI ignored information about the 9/11 hijackers in 2001. We wouldn’t know that United States personnel engaged in inhumane practices at Abu Ghraib prison in Iraq. We wouldn’t know that the United States runs secret torture prisons in Eastern Europe. We wouldn’t know that the National Security Agency routinely engages in domestic wiretapping without warrants. We wouldn’t know that the levees supposed to protect New Orleans were inadequate. And we wouldn’t know that U.S. forces recently massacred innocent civilians at Haditha, Iraq. These disclosures initiated vital public debate and prompted important corrective actions and reforms.

Despite the federal and state laws that purport to facilitate such whistle-blowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they have gone public with their important information. The Supreme Court has recently opined that the First Amendment does not apply to government whistleblowers; lower courts have required “irrefutable proof” of wrongdoing before the protections of the federal and state whistle-blowing statutes will apply; and none of the federal and State whistle-blowing protection laws consider journalists an appropriate whistle-blowing outlet, despite the power of the media to bring about change.

To remedy this situation, Federal and State whistle-blowing laws should be amended to protect government officials from retaliation who disclose information to the media if the whistleblower (1) reasonably believes that her allegations are accurate and that disclosure is necessary to avoid serious harm; and (2) has exhausted internal procedures unless she reasonably believes that disclosure would subject her to retaliation, or that the employer would conceal or destroy the evidence if alerted. This amendment will send a signal to government insiders that they are encouraged to report government wrongdoing to the press when necessary (evaluated under an objective standard) to prevent serious harm to the public. The harm in question can be physical (such as death, disease, or physical abuse), financial (such as loss of or damage to property), or psychological (such as invasion of privacy, or inducing terror). Lower level harms, such as injustice, deception, and waste, would under most circumstances not be sufficient to meet this standard. The requirement of reasonable belief about the accuracy of the claim will ensure that reckless whistleblowers are not protected. Finally, the requirement that the whistle-blower must first attempt to go through established channels before publicly revealing the information in question will preclude precipitous whistle-blowing or unnecessarily undermining the employer-employee relationship.

In sum, the government whistleblower who discloses information to the press should no longer be treated as an enemy of the state, but rather such a person is like the knock at the door that wakes one in a house on fire—unwelcome, but better than sleeping until the fire reaches the bed. For more on this issue, see my forthcoming article, “On Terrorism and Whistle-blowing,” to be published in the Case Journal of International Law (2007), available now at my SSRN site at:

Michael P. Scharf Professor of Law and Director Frederick K. Cox Internaitonal Law Center

Case Western Reserve University School of Law

Thursday, March 15th, 2007 3:33 pm | Posted in: Law Blog | Trackback | 0 Comments
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“The Lucifer Effect”

by Michael Scharf

As President of the American National Section of the AIDP (International Association of Penal Law), it is my great pleasure to launch this new outlet for scholarly discourse with an essay that examines an issue at the very core of international criminal law.

This morning’s headline in the country’s most-read newspaper (USA Today, March 14, at 7D) asked “Do we all have a dark side?” Discussing psychologist Philip Zimbardo’s new bestseller, “The Lucifer Effect: Understanding How Good people Turn Evil” (Random House $27.95), the newspaper quoted a number of experts who agreed that “nearly everyone would treat others viciously or look the other way at abuse under certain conditions.”

A decade ago, this conclusion would not have seemed so self-evident. In 1996, the bestseller on point was Daniel Jona Goldhagen’s “Hitler’s Willing Executioners” (Knopf, $27.00), which hypothesized that the Holocaust was a product of the German people’s unique cultural predisposition to “eliminationist anti-Semitism.” Shortly after the publication of Goldhagen’s book, however, the modern war crimes tribunals for the former Yugoslavia, Rwanda, Sierra Leone, and Iraq, began to prove that the Holocaust was far from unique; rather human beings are universally capable of doing the things the Germans did.

What are the circumstances that can lure out the dark side of human nature and push us across the thin line between civilized conduct and barbarism? What transforms ordinary people into savages? Thirty years ago, Stanley Milgram and Philip Zimbardo each explored this question under laboratory-like conditions. Milgram’s famous experiment proved ordinary college students would subject other college students to painful shocks if encouraged by an authority figure and told the victims deserved it. Zimbardo’s experiment proved college students assigned to play the role of guards would, if unsupervised and undisciplined, begin to abuse other college students assigned to play the role of prisoners, resulting in Abu Ghraib-like misconduct.

The importance of the modern war crimes trials is that they have confirmed Milgram and Zimbardo’s findings in the real world. Through documents and witness testimony, the war crimes trials have shown us how provocation, incitement, and propaganda can raise hatred and fear to such an extent that ordinary people can turn on their neighbors in a bloodthirsty way. Throw in official sanction, coercion by persons in authority, pressure from assenting comrades, and opportunities for personal gain. Then add a long history of ethnic tension, and you have the ingredients for massive crimes against humanity.

Unfortunately, those ingredients exist in numerous countries. Consequently the questions raised by the savagery in the Balkans, Rwanda, Sierra Leone, and Iraq – how to preserve minority rights, when to recognize claims to self-determination, how to apply preventive strategies, and when to use force – are likely to confront us again and again in the coming years.

Michael P. Scharf Professor of Law and Director Frederick K. Cox International Law Center

Case Western Reserve University School of Law

Thursday, March 15th, 2007 3:29 pm | Posted in: Law Blog, International Criminal Law, International Humanitarian Law | Trackback | 3 Comments
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Italian Court Steps up to Convict Agrentine “Dirty War” Culprits

by Michael Kelly

A.P. is reporting today that five former members of Argentina’s military were convicted of murdering three Italians during what is known as the “dirty war” that occurred in Argentina in the 1970’s. Under the dictatorship of the junta, about 9,000 Argentines vanished, or “were disappeared” as the government undertook a brutal campaign of repression against leftist and other anti-government activists. International human rights groups put that figure at 30,000.

The Italian court ruled in the case against Jorge Eduardo Acosta, Alfredo Ignacio Astiz, Hector Antonio Febres, Antonio Vanek, and Jorge Raul Vildoza. The convictions for kidnapping, torture and murder garned them sentences of life imprisonment. All were tried in absentia according to Italian law. The first four are under arrest for related crimes during that period in Argentina, however, it remains unclear whether Buenos Aires will hand them over to Italian authorities. The fifth man, Mr. Vidoza, remains at large.

Although the validity of trials in absentia have been long debated, they are sometimes useful undertakings, as in this case, when the stories of the victims can be told with reasonable accuracy and the world’s attention can be brought to bear on the most heinous of crimes. The trial in absentia of Pol Pot for the unfathomable cimes of the the “killing fields” in Cambodia is another example. He later died, making a live trial impossible. This is the second time that Italian courts have ruled on the Argentine dirty war. Perhaps if more national courts conducted trials in this vein against the atrocities of tyrants and their lieutenants, fewer such crimes would be committed.

Thursday, March 15th, 2007 2:57 pm | Posted in: Law Blog, International Criminal Law | Trackback | 0 Comments
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