Williams College Law Journal, Volume I, Issue I

Williams College Law Journal

Vol. 1, Ed. 1

Photo credit: Jessica de la Cuesta Model: Nari Miller

Letter from the Editor

Dear Readers, It is with great pleasure that I give you the first issue of the Williams College Law Journal. The Journal was established to provide a written outlet for undergraduates with an interest in the field of law and to generally educate students by exposing them to legal discourse. As the publication of this issue accomplishes the former, I can only hope that the articles the editors and I have chosen for the inaugural issue accomplish the latter.

This Journal would not have been possible without the assistance of the Williams College Office of Student Life, the encouragement of the Williams College Law Society, the dedication of our editors, and the courage and efforts of our contributing authors. So, it is with tremendous gratitude that I acknowledge their assistance.

Without further ado, I present the Williams College Law Journal. I hope that you not only enjoy the selection provided but also feel encouraged to submit your own work to future issues.

Sincerely, Jessica de la Cuesta Editor-in-Chief

Disclaimer: The Williams College Law Journal is published by students of Williams College. The content of and the views expressed in the published articles, however, are solely the responsibility of the individual authors and do not necessarily reflect the views or policies of the Journal, its editorial board, or Williams College.

Table of Contents Domestic Law Polar Bears, the Endangered Species Act, and the Politics of It All Jordan Freking

Lincoln’s Precedent Nick Krause

Interview Activism According to Professor Alex Willingham Emanuel McMiller

International Law Lessons from Christmas Island: Asylum Seeking in Australia Amy Nguyen

Omar al-Bashir: The International Criminal Court’s Folly in Pursuing a Genocidaire John Hoover

DOMESTIC LAW

Polar Bears, the Endangered Species Act, and the Politics of It All Jordan Freking

In the United States, taking the environmental effects of a given action into consideration is not

necessarily the first thing people do. This could be for a lot of reasons, but capitalism is definitely a major factor, as the quest for capital often comes at the expense of the environment. Moreover, when the detrimental consequences are considered, it is difficult to imagine every possible way in which the environment could have been affected. One may begin with the most apparent effects, like natural resource depletion or the harm done to humans in a particular geographic area, but there is usually a multitude of other ways in which damage has been done. For example, with regards to global warming, we may think about how the consumption of oil via transportation could lead to holes in the ozone layer, which could in turn lead to an increased chance for humans to develop a variety of cancers, and if the consumption of oil does not decrease, the earth will be left without one of our most precious natural resources. What else could go wrong? Despite the notion that humans are the most important beings on the planet, we need to remember that our actions affect the other living things on this planet as well.

One such victim of human selfishness has been the polar bear. Due to the plethora of human induced

factors that have led to global climate change, the natural habitat of the polar bear is at risk. Regardless of whether or not one wants to believe in global warming, the fact is that temperatures in Alaska and western Canada “have already increased by as much as 3-4°C in the past fifty years.”1 It may not seem like a significant increase, but translated into the more commonly used unit of temperature in the United States, that is almost 40 degrees Fahrenheit warmer in only 50 years! Additionally, the Arctic Council has reported in its Arctic Climate Impact Assessment (ACIA) that in 2007 the sea-ice extent fell to a record low of 1.63 million square miles, which is “one million square miles below the average minimum sea-ice extent between 1979 and 2000, and 50% lower than conditions in the 1950s to the 1970s.”2 Polar bears use the ice for hunting, migrating, living, and 1

William C. G. Burns and Hari M. Osofsky. “Adjudicating climate change: state, national, and international approaches,” in Biodiversity, Global Warming, and the United States Endangered Species Act: The Role of Domestic Wildlife Law in Addressing Greenhouse Gas Emissions (2009). Cambridge: Cambridge University Press: 154.

2 Ibid.

basically every aspect of their lives. To put it simply: if there is no ice, there will be no polar bears.

In response to this crisis, the Center for Biological Diversity submitted a petition to the United States Fish and Wildlife Service to request that polar bears be listed on the threatened or endangered species list under the Endangered Species Act (ESA).3 The Endangered Species Act has two key sections that apply to the case of the polar bears. The first is Section 7 which mandates that: all federal agencies ‘insure through consultation with the Secretary’ that all actions authorized, funded, or carried out by such agencies are ‘not likely to jeopardize the continued existence’ or ‘result in the destruction or adverse modification’ of ‘critical habitat’ of any listed species.4 Simplified, this states that any action a federal agency performs must not negatively affect, in any way, the environment that is essential to a species’ existence.

The second pertinent subsection is Section 9, which is not only applicable to federal agencies, but to state and local agencies as well, and it: prohibits, inter alia, the ‘taking’ of any endangered species in the United States or upon the high seas, [where] ‘take’ means ‘to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. ‘Harass’ is further defined as any ‘act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding or sheltering,’ [and finally,] ‘harm’ includes ‘significant habitat modification or degradation where it…injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.’5 Restated, Section 9 is essentially saying that any given governmental agency may not, in any way, cause harm to an animal on the endangered species list.

The last consideration to take into account when dealing with violations of the ESA is the finding of the Tennessee Valley Authority v. Hill decision. It mandated that if a venture that is currently a work-in-progress is found to be in direct violation of the ESA, it must be halted despite any economic consequences.6 Given the wording of the ESA and the finding of Tennessee Valley Authority v. Hill, the placement of polar bears on the endangered species list should have been a relatively straightforward issue. Unfortunately, this was not the case, largely because of politics. The Bush administration, as a Republican, conservatively-aligned 3 4 5 6

Ibid, 157.

Ibid, 147.

Ibid, 148.

Ibid, 147.

political entity, was reluctant to admit that global warming was the primary cause of the possible extinction of an entire species because such an admission would be contrary to the ideologies that many conservative republicans hold. This was made evident by its reluctance to comply with the case put forward by the Center for Biological Diversity, and in the U.S Fish and Wildlife Service’s refusal to give an official statement on the matter until legally coerced. Finally, after the Arctic Council published irrefutable, scientific evidence, the Fish and Wildlife Service made a statement. They concluded that “polar bear populations throughout their distribution in the circumpolar Arctic are threatened by ongoing and projected changes in their sea ice habitat,[and that] the best available science indicates that temperatures will continue to rise and sea-ice extent will continue to decline.”7 Even though this statement was released, it was done like any conservative political entity would have, in that it carefully skirted recognizing global warming and greenhouse gases as the source of the problem. Despite this being a success for the Center for Biological Diversity and environmentalists at large, it was a limited victory because the polar bear was only placed on the threatened species list, which lessened the amount of restorative actions and protections that could be done to help the polar bear.

As recently as June of 2011, a federal judge has chosen to uphold the 2008 decision stating that polar bears should be listed as threatened.8 It is true that, at the very least, the polar bear should be listed as threatened, but that alone does not do justice to the species. Polar bears deserve to be listed as endangered. If the “best available science” states that the ice—the livelihood of the polar bears—is melting at a rapid rate, polar bears and their “critical habitat,” which are both covered under sections of the Endangered Species Act, are in danger of extinction. Some people cast doubt upon this claim by stating that they have seen an increase in the amount of polar bears in various parts of the arctic. That does not change the fact that they are in danger of being extinct.

In analyzing the many issues surrounding the polar bear debate, one thing is clear: something needs to be done. Humans cannot continue to act as if they are the only important beings on this planet. Our actions are responsible for the imminent extinction of the polar bear and many other plants and animals on this planet. It may be nearly impossible to quantify exactly how much the polar bear is worth in economic terms, but that does not mean that we can continue to ignore the problem. It seems as if the federal government does not want to admit that the polar bear is endangered for exactly this reason; the actions that would be required after making this critical terminological shift would be complicated and therefore difficult. If the polar bear were listed as endangered, the government would be forced to deal with the larger issue of global warming. It would have 7 8

Ibid, 159.

Deborah Zabarenko, “Polar bears’ threatened status upheld in court,” Reuters (2011): accessed October 15, 2011, http://www.reuters.com/article/2011/06/30/us-climate-polarbears-idUSTRE75T6CK20110630

to penalize many of the large, economically beneficial corporations for their actions related to greenhouse gas emissions, and they would have to take a political stance on global warming. This situation is similar to that which occurred, or is occurring, with the financial crisis. Republicans do not want to support a plan that comes from Democrats, and Democrats do not want to support anything with a Republican ideology. Despite the possibility that a solution could actually be created, the partisanship that exists in the United States prevents many possibly, albeit unknown, beneficial resolutions from coming into existence. The officials who work for the United States government need to become cognizant of the fact that their inaction will lead to the extinction of the polar bear. There may be no quick fixes to the worldwide crisis that is global warming, but we need to get the metaphorical ball rolling, and do something. By listing the polar bear as an endangered species, perhaps experts will come up with a long term plan of action that can save the polar bear and create a legal precedent on similar matters as they pertain to global climate change and the extinction of other species.

Lincoln’s Precedent Nick Kraus The American Constitution is arguably one of the most influential documents ever written; its direct result, the most powerful nation in the world. Testing the longevity and vitality of the still experimental republic, the Civil War was an essential event in the history of the country. President Abraham Lincoln took the challenge of the war in stride, confronting the Southern secessionists with aggressive political and military offensives. Claiming secession was unconstitutional, Lincoln’s primary objective was the preservation of the Constitution. Defining the Union as perpetual, the seceding states forever members of the Union and, as such, revolutionary under Article IV Section 4, he claimed that “if destruction of the Union by one or by a part only of the states be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.”1 Lincoln, associating the survival of the Union with the vitality of the Constitution, did not take his position lightly and proceeded to make a number of controversial decisions, including the suspension of Habeas Corpus and the Emancipation Proclamation, invoking his self-proclaimed right and duty as Commander-in-Chief in a time of war to supersede some constitutional governmental rights in order to protect the Constitution itself. While some may deem Lincoln’s actions as a despotic abuse of power, in reality they were and are still entirely within the rights of the president to ensure the preservation of the Constitution and were entirely legally justifiable. Lincoln’s efforts to expedite the federal legislation process were fully encompassed by his role as Commander-in-Chief and were necessitated by the extraordinary circumstances, serving solely to protect the Constitution in a time of crisis. However, despite his eventual victory in the Civil War, Lincoln’s decisions did create a dangerous precedent which has been abused more frequently than most would care to admit.

The executive powers vested in the office of President of the United States reside, in no small part, in his role as Commander-in-Chief of the military. No specific powers for this position are defined; it is simply stated in the Constitution that “the President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States.”

Without any specific assignments or restrictions of power we must consider the role of the Commander-in1

Lincoln, First Inaugural Address

Chief in within the context of the Constitution as a whole. That is, we must consider the general design of the Constitution to determine what the Commander-in-Chief may or may not do. In his address to some Chicago clergymen, Lincoln asserts, “as Commander-in-Chief of the army and navy, in time of war, I suppose I have a right to take any measure which may best subdue the enemy.”2 As far as Lincoln was concerned, his primary duty was to protect the nation. Whereas in some necessary cases, restrictions were specified in the Constitution, many sections were purposefully written to grant vague or undefined powers. These sections have been found to be purposefully unspecific so as to foster the evolution and flexibility of the law. As with the broad powers found to be granted Congress by the necessary and proper clause in McCulloch v. Maryland, the open-ended role of Commander-in-Chief is able to access a broad range of authority in order to accomplish its goals.3 As chief officer of the nation’s army and navy, the primary goal of the Commander-in-Chief is military victory.

Lincoln’s assertion of power during the Civil War clearly falls in line with the vague, empowering words of the Constitution.

It is apparent that, as Commander-in-Chief and leader of the military, the President is meant to secure victory (as any good general should) and ensure the safety of the United States and its people by all means available to him. The question is what those means constitute. The position of chief executive officer grants the President many powers, military might being one of the most influential. During a normal state of affairs, the powers of the Commander-in-Chief are limited; however, during a state of emergency such as the Civil War, these powers are expanded dramatically as the role of the military rises to the forefront of national affairs. In the Prize Cases, the Supreme Court clearly ruled that, “a war may exist where one of the belligerents claims sovereign rights as against the other.” As such, even without an official declaration of war or further military measures, a state of war may legally exist in the nation.4 A time of war by definition necessitates military action of some kind, thrusting the Commander-in-Chief to the foremost position of power in the nation.

Even Benjamin Curtis in his Executive Power admits “in times of great public danger, unexpected perils… may imperatively demand instant and vigorous executive action.”5 Curtis, however, believed that the Civil War did not constitute such an exceptional case and feared Lincoln would establish a system. Here he was erroneous.

A war which has consumed the entire nation must be considered exceptional and, due to the rare nature of the event, will not establish a system of abuse of powers. Such a state of emergency, necessitating military 2 3 4 5

Curtis, Executive Power McCulloch v. Maryland. 6 Mar. 1819.

Prize Cases. 10 Mar. 1863.

Curtis, Executive Power

dominance, is easily determined generally, as it would involve obvious hostilities. During the Civil War, the determination was even easier, given that the public voted for martial law.6 Martial law, in assigning governance to the military, assigns the leader of that military, the Commander-in-Chief, complete control over state affairs, including legislation. Between his role as executive in a time of national strife and his martial powers, Lincoln had just claim to the full scope of his clout.

As the most supreme commander in the military during a time of war, the President is provided extensive powers, given that it is his “bounden duty to put down the insurrection… the means and instruments to suppress it are lawfully in his hands”.7 The executive powers are not specifically defined by the Constitution, as they are designed to protect the Constitution. The document could not be protected under extreme circumstances if the compromised law itself defined the manner in which protection should be achieved.

Furthermore, measures meant to restrain governmental power may, in times of crisis, actually hinder the defense of the very document they are meant to uphold. The sole point where the Constitution mentions its own defense is in Article II in the presidential oath, where the executive officer is sworn to “execute the office of President… and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” In the oath, the executive duties of the President and the protection of the Constitution are separated; they are two independent tasks. As such, the defense of the nation, of the very document declaring these laws, cannot be restrained by any limitations on the executive branch, but must be considered an additional duty of the office of the President. The oath mandates that in a time of emergency, it is the responsibility of the President to ensure the survival of the Constitution.

Lincoln, along with many other Americans, was convinced that Southern secession was unconstitutional.

In his First Inaugural Address, Lincoln states, “One part to a contract may violate it – break it, so to speak – but does it not require all to lawfully rescind it?”8 Since the Constitution had already been defied, extraordinary measures were both allowable and needed in order to maintain the “contract.” Had the intention been to enforce strict adherence to a set of guidelines in a time of crisis, an entire constitutional article would have been written outlining emergency powers of the government. As this was not the case, we are left only with the tasking of the matter to the President in his oath. Due to the lack of any indication of restrictions pertaining to this charge, it must be assumed that, in these times of necessity, the President is granted access to the full force of 6 Benjamin A. Kleinerman “Lincoln’s Example: Executive Power and the Survival of Constitutionalism.”

Perspectives on Politics 3.04 (2005): 801-16.

7 Bates, Opinion on the Suspension of Habeas Corpus 8 Lincoln, First Inaugural Address

governmental power in order to “defend the Constitution of the United States.”

Thus far it is clear that President Lincoln, due to the extraordinary nature of the Civil War, properly utilized his executive and military powers in order to preserve the Constitution and the nation. Opposition to these points has been raised on the grounds that Lincoln far overstepped his abilities as President, encroaching on those of Congress, and that the precedent Lincoln established provides the President with grounds for near dictatorial power. While there is cause to fear the standard put in place by Lincoln, the powers called upon by the President are clearly within his dominion. The cases of Ex parte Merryman and Ex parte Milligan are prime examples of the claims that Lincoln overextended executive power. Addressing the suspension of Habeas Corpus, Merryman claims that the power lies with Congress only. Milligan states that martial law, such as was declared along with the suspension, cannot exist where civil courts are operating. The argument laid out above supports the fact that the President, in a time of crisis, must act as Commander-in-Chief and act in the defense of the nation. The ability to achieve such a goal lies not only in military strength, but also in political force. The suspension of Habeas Corpus was directly related to the defense of the nation because it expanded the power of the courts to punish confederates and their sympathizers. As Bates states, “it is a power necessary to the peace and safety of the country.”9 The President, as Commander-in-Chief, is best suited to make such decisions as he is directly tasked with matters of war and national defense. Furthermore, in order to more directly address Milligan, it is necessary to understand the extraordinary nature of the Civil War. Powers such as revoking Habeas Corpus may easily be considered unnecessary in an ordinary war; however, the Civil War, which encompassed the entire nation, was no ordinary war.

Though Lincoln claimed his actions were necessary, it is impossible to determine, even in retrospect, whether certain decisions were truly necessary. Had he avoided making any of these controversial decisions, the war may still have been won by the Union. As such, while his ability to claim such extensive powers is clear, Lincoln did set a bad precedent with his wartime decisions. As Curtis puts it in Executive Power, “The uses of power, even in despotic monarchies, are more or less controlled by usages and customs.”10 The times were desperate and, as such, it may have seemed to Lincoln that his only option was an extreme extension of executive power. Lincoln reiterates time and time again the importance of his ‘necessity test’, even going so far as to “[imply] that this standard, rather than popular opinion, will better limit the spread of martial law”.11 These warning are not sufficient, though; as Kleinerman goes on to write, the public is not sufficiently aware of 9 Bates, Opinion on the Suspension of Habeas Corpus 10 Curtis, Executive Power 11 Kleinerman, Lincoln’s Example

constitutionalism to act as the necessary electoral deterrent to the abuse of these powers and, without this check, the definition of ‘necessary’ has been stretched to its limits. Using the example of 9/11 and the detainment of suspected terrorists, Kleinerman asserts that the powers of the executive branch have been stretched to their limit. As opposed to the definite crisis that was the Civil War, the war on terror is formless on all fronts, lacking a foreseeable end and a clear enemy. Thus the ‘necessity test’ is insufficient to prevent the abuse of these powers, as Lincoln had hoped. While they may have seemed necessary at the time, it is unclear whether the benefit was worth the current cost of constitutional indiscretion.

The powers of the President, acting as Commander-in-Chief in a time of war, are extensive so as to provide for the defense of the nation. In extreme circumstances where the Constitution itself is threatened, these powers are expanded from simply military and executive authority to encompass the entire weight of governmental authority. These powers may not be expressly in opposition to constitutional law; however, they do encompass the entirety of federal power expressed in the Constitution. As, in a time of peace, Congress has the power to pass such legislation as the Emancipation Proclamation and to suspend Habeas Corpus, it follows that, in a time of constitutional crisis, the President gains these powers for the sake of practicality. Emergencies call for action, not deliberation, and it is the sole duty of the executive to ensure the Constitution survives such emergencies as the Civil War. This being said, Lincoln should not have been so quick to invoke his emergency powers as the precedents he set have had severely negative consequences in current governmental decisions.

As was feared by the Founding Fathers, the executive has begun to increasingly exercise power to influence governmental affairs and lessen the importance of Congress. The ‘necessity test’ may have seemed effective to Lincoln; however, it established a precedent which, while clear to Lincoln, has increased the temptation to abuse executive power.

Dr. Alex Willingham Talks Activism, Then and Now Emanuel McMiller

Dr. Alex Willingham was educated at the Southern University, Baton Rouge (1963), the University of Iowa (1965), and the University of North Carolina (1974). He has been part of the Williams Political Science department since 1989. Since joining the faculty, he has served as Chair of the African- American Studies Program, Director of the Multicultural Center, and faculty advisor of the Williams College Law Society. He is considered an expert in African-American history, especially the Civil Rights Movement, and the interaction between politics and race. In the following interview, he discusses the forms activism has taken from the 1950s to the present.

What initially made you focus on the issues and subject areas that you [specialize] in now, predominantly civil rights? What made you feel that you had to get more involved and what made you delve even deeper into the subject area [i.e., Political Science] that you’re teaching?

Well, I guess first of all I did like politics and political science and stuff like that, but, frankly, my biography coincides very closely with attacks on… [the]elimination of racial segregation. When I was born, all those laws were in place. When I started coming to maturity in college and young adulthood, they were very much under attack. So it was hard to avoid to tell you the truth. I had some profs, in undergrad particularly, who were very interesting, exciting and dynamic, and that was part of it as well.

While you were in undergrad and grad school in the 1960s, did you take an active part in those student movements at the time, whether it be attacks on racial segregation or otherwise?

Well, I guess the answer probably is yes and no. It’s no insofar as one talks about an active role in SNCC and the organizations that were effective at that time. We had two major confrontations when I was at undergraduate school at Baton Rouge, a typical southern segregated city. And I was supportive in those. By the time I got to graduate school in Iowa, I made a departure from that. I went one way, because I [was now] in the Midwest. By 1968, I went UNC, so I [was] back in the South, and I got involved in a little activity down there.

I did not see myself as an activist in terms of SNCC. Once I got into academia, I knew my concern and my responsibility was the classroom. It was to support things in the classroom that were worthwhile, but it wasn’t to do propaganda for students that I [happened to be] teaching.

What do you think is the main obstacle confronting the Civil Rights Movement today?

We’re not talking about something that just happens in two or three weeks, or a month or so.

I would rather say that the Civil Rights Movement came and then came to a conclusion. Not that race is out of the question, or off the table or anything, but it does leave for us lessons about tactics, and ways of thinking about stuff.

In regards to the Occupy Wall Street, this may be the movement that is evolving at this new point in history. I don’t like something that says there is no leader, but I see their point. This is the same thing that SNCC did in 1960.

Me and several of my friends are worried that as we got comfortable jobs, and so forth and could be pointed out as [people] who did fairly well, that good numbers of Black people did not make it, and continue to live in situations that we would say were racially problematic.

There are some concerns out there that we would want to address. [Particularly], what is needed here is [further development] in these [underprivileged] communities, not of respect from white power structures or petty bourgeoisie black leaders but the capacity of our communities to respond to important issues.

The world is becoming increasingly technological, and most of the discussions that we have are taking place in the online community. Do you think that there may be a danger in limiting ourselves to online activism and online protest, and not being active physically?

Where do you see the future of student-based activism and protest?

I got a feeling it’s always going to be there, and it’s going to recur. I would have to say that the Occupy Wall Street is the basis of stopping to think. It’s sounding very youthful.

There’s been a lot of talk about the Occupy Wall Street Movement, and I’ve noticed that you tried to differentiate the Civil Rights Movement from the Occupy Movement. How would you describe the difference between them, and what’s the danger of putting them in one category together?

When we look at the political history of the country, we have to think about movements as coming and going, and we need to be more sensitive about the peculiarities of those movements, especially the progressive ones.

Plus, I like to respect those people in other movements for what they did.

Every one of these movements was met with all kinds of skepticism. When that first early activity occurred, let’s just call that April of 1960. It was 1968 when Martin Luther King, Jr. was killed. That’s nearly a decade.

Well, I’m just going to tell you. I don’t have a lot of faith in [the internet] myself. After the Murdoch situation, I’m rather suspicious about communication.

At the same time, whatever instruments are there are going to be used, so I can’t oppose it. I suspect that people will get to know one another better on a faceto-face basis though when possible.

I would have to say, though, that every generation adjusts to its particular situation. There’s no doubt that the long distance telephone in ’60 became very useful, and it was relied on by many people (for purpose of organizing).

Are there any words of advice you have for student activist organizations in terms of the role that they can play in the future of society?

One of the things that happened in the civil rights movement that I remember very well was the way some of us got very connected to that activity and ended up drifting away from their classwork. Some of the active ones (in the movement) didn’t graduate.

And that kind of bothers me.

Make sure you got your eyes on the prize, which is the work you want to do. I can’t say don’t get involved in other things, because some of that can be very educational.

INTERNATIONAL LAW

Lessons from Christmas Island: Seeking Asylum in Australia Amy Nguyen

Christmas Island is the home to many tropical bird species, nesting sea turtles and the unique red

crab migration, all evidence for its boast as the “Galapagos of the Indian Ocean.”1 Roughly the size of Boston, Christmas Island is a seemingly benign island territory that sits 200 miles off the coast of Indonesia, over 1,600 miles away from its sovereign Australia .2 With a little over 1,400 inhabitants, mostly of Chinese and Malaysian descent3, the island appears to cater mostly to the average tourist seeking a tropical getaway. However, Christmas Island is also a popular destination for another group; namely, over 3,0004 asylum seekers from countries such as Iran and Sri Lanka, who are today’s generation of boat people.

Christmas Island embodies the asymmetric relationship between the state and the individual, revealing

that with respect to asylum seekers, international law prioritizes state sovereignty over individual rights.

According to the 1951 Convention on Refugees, a refugee is an individual who “owing to the well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country….”5 An asylum seeker, then, is an individual who escapes his or her country and seeks asylum (in the form of legal protection and material assistance) in another country. To do so, the asylum seeker must effectively demonstrate that he or she fits the criteria for a refugee.6 Because states inherently lack an interest in asylum seekers, industrialized nations often increase barriers for applying for asylum. Thus, for places such as Australia, where immigration policy is more progressive, there has been an influx of refugees who would have otherwise escaped to other nations, resulting in congestion in the application process. In the context 1 Christmas Island Tourism Association. Web. 06 May 2011. <http://www.christmas.net.au/index.html>.

2 Central Intelligence Agency. “Christmas Island” CIA - The World Factbook. Web. 06 May 2011. <https://www.cia. gov/library/publications/the-world-factbook/geos/kt.html>.

3 Ibid 4 Maley, Paul and Paige Taylor. “Christmas Island shuts up shop to new asylum-seekers.” The Australian. 23 March 2011.

5 United Nations Refugee Agency, “Convention and Protocol Relating to the Status of Refugees.” Accessed December 2, 2011.http://www.unhcr.org/3b66c2aa10.html.

6 United Nations Refugee Agency, “What is a refugee?.” Accessed December 2, 2011.http://www.unrefugees.org/ site/c.lfIQKSOwFqG/b.4950731/k.A894/What_is_a_refugee.htm.

of the shipwreck tragedy that took place along the coast of Christmas Island last December and the recent riots taking place in its detention center, Australia’s immigration policy toward asylum seekers has revealed how even as a state attempts to uphold the values of an agreement, it will protect its own autonomy over the rights of noncitizens in the absence of a binding agreement.

To understand the state of Australia’s immigration policy today, one must have an understanding of its

evolution. According to James Jupp, it was not until 1972 that Australia’s White preference policy was essentially nullified by the Whitlam government when it declared that race, skin color and other such determinations were not a legitimate basis for immigration control. Before 1972, there was legislation such as the Migration Act, which required that incoming individuals, such as immigrants or asylum seekers, have a permit to legally enter the country. Under the guise of preventing social unrest, the Immigration Department would only give out permits to those they assessed to be white enough.7 Since 1972, Australia has taken extensive policy measures to move away from the White Australia mentality to an acceptance of a multicultural Australia.

Even so, the crash of a 100-passenger Indonesian fishing boat against the rocks of Christmas Island’s

coast in December 2010 has shown that the boat people of the 1970s are not merely a generational occurrence.

The tragedy, which resulted in 28 people losing their lives, has led to criticisms of the coastal security as well as a call by Prime Minster Julia Gillard for a regional protection framework.8 The Commander of Border Protection Command Admiral Tim Barrett has been under fire from the government and the media for the coastal security’s failure to detect the vessel crashing along the coast. The lawyer defending Admiral Barrett has asserted that there was no obligation or duty from the government for the Border Protection Command to establish a “system of continuous surveillance of Australia’s maritime domain.” Additionally, he has gone on further to say that there is “no government mandate of any agency to provide continuous surveillance of Christmas Island.”9

The Law of the Sea (LOS) Convention imparts certain duties on coastal states to ensure safety. In its

capacity as a coastal state, Australia violated its duties under LOS Convention Article 24, which highlights the duty of states to “give appropriate publicity to any danger of navigation, of which it has knowledge within its territorial sea.” In the Christmas Island shipwreck, Australia violated this duty by neither identifying the boat nor effectively communicating with the fishing boat the dangers of the coast. Because it failed to properly warn the vessel of the danger of the coastline, Australia may be brought into international court by another state on 7 Jubb, James. From Australia to Woomera: The Story of Australian Immigration. Jupp, James. From White Australia to Woomera: the Story of Australian Immigration. New York: Cambridge UP, 2002. Print: 6-10.

8 Brown, Justin. “The terrible trade of human smuggling; Christmas Island deaths highlight the risks to which smugglers expose asylum seekers.” The Vancouver Sun. 17 Dec. 2010: 17.

9 Guest, Debbie. “Border chief in firing line over Christmas Island boat tragedy.” The Australian. 03 May 2011.

behalf of its passengers. The passengers on these smuggling boats are individuals who are escaping persecution from their respective states – as such, no state will willingly represent these passengers, resulting in a deficit of protection for the individual. It is commonly accepted that international law pertains mostly to states. Therefore, in a situation where a state does not accept responsibility for its own nationals, the individual is left more or less unprotected. However, these individuals are afforded different levels of protection depending on where they are, underlining states’ often asymmetric use of international law for their own means.

One example of this asymmetric use is territory. States have considered territory expansively in

conversations regarding their own claim to resources and rights while doing the opposite in regard to human rights obligations. The Law of the Sea is a testament to this fact. With multiple conditions that allow for states to expand their scope of power in the sea (such as multiple zones: territorial zone, contiguous zone and exclusive economic zone), it is striking that this same expansive nature is not extended to human rights. An asylum seeker must step foot on the mainland before he or she can apply for asylum.

Territory is often seen as the most permanent constant in international law because land cannot

disappear (thought it can become submerged in the case of islands such as the Maldives). Interestingly, while territory has physical permanence under international law, its use for non-material purposes (in this case, asylum) is much more limited. Whether the state encounters the individual on the ocean or on its territory changes the legal relationship between the state and the individual. Because the state encountered the individuals at sea, they are likely to be seen as passengers on a vessel that is engaging in innocent passage, unless they are arriving under the auspice of harming the pace, good order or security of Australia (Article 19 of LOS).

As such, Australia’s only obligations to these passengers are the ones associated with the law of the sea and basic human rights obligations. States define their territory depending on what benefits they can derive from the situation.

Regardless of the geographical consideration, Australia still more or less observes ultimate authority

over what happens to the individual, despite the change in the kinds of obligations it must observe under international law.

The recent shipwreck off Christmas Island has attracted greater attention to the increasingly deplorable

conditions of the island’s immigration detention center. In March 2011, a full-scale riot took place that resulted in violence against the guards and a mass breakout of detainees, setting off criticisms that the facility is overcrowded, understaffed and run-down.10 In 2000, the United Nations Human Commissioner on Refugees 10 Taylor, Paige. “No action against detainee accused of stabbing guard.” The Australian. 05 May 2011: Local

(UNHCR) issued recommendations for reception standards for asylum seekers in the European Union, which includes recommendations such as education for children asylum seekers and basic necessities such as food, water and shelter. The condition of the Christmas Island detention center has deteriorated to the point that it can be said that Australia has not heeded the recommendations made by the UNHCR. Thus, if commonly accepted and made into customary law, Australia would have to make a number of changes. However, these recommendations have not been accepted as customary law. Moreover, even if they were, it is unlikely the UNHCR is a powerful enough international body to enforce the law.

When states fail to act, international organizations must bear the duty of punishing these states on

behalf of the rest of the international community. Especially in the realm of human rights, these international bodies attempt to protect the individual when their own state fails to do so. In the preamble to the Convention on Refugees, the UNHCR is given the authority of “supervising international conventions providing for the protection of refugees” and accessing the “effective co-ordination of measures taken to deal with this problem.”

However, the framers of the convention did not mean for the UNHCR to be a strong international body (i.e., “noting” the presence of something is not exactly the greatest statement of confidence in comparison to “asserting” their existence). Unless the UNHCR asserts itself more as an international authority, asylum seekers will continue to be left to the care of domestic infrastructures.

Years before the riots, there was a movement within the Australian government to establish a mandatory

code of conduct for all detainees, which would grant power to the detention officials to take away privileges from individuals who violated the code.11 The purpose of the code was to establish disciplinary measures to curb the amount of crime taking place within the detention centers. Establishing such a code is significant because it highlights the difficulty in the relationship between the state and the asylum seeker. The receiving state has jurisdiction over the asylum seeker, though he or she is not a national of the state. Under Article 2 of the Convention on Refugees, “every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.” Most of the obligations in the Convention on Refugees that the state must uphold are applicable to refugees, not asylum seekers. The Convention on Refugees defines states’ obligations to asylum seekers in a very narrow capacity and leaves it up to states to implement these limited provisions domestically.

In a system that lacks a treaty with a specific and binding set of rights and obligations, states are left to

decide just how substantively they will meet these mandates. To implement a system where there is a binding 11 Manley, Paul and Paige Taylor. “Asylum claim decisions in a state of chaos.” The Australian. 02 May 2011

treaty on asylum seeking, states would have to give up some of their sovereignty. Were the UNHCR to use its supervision authority to create a treaty on asylum seeking, Australia would have to cede its power to facilitate policy domestically to the international community. Australia would have to give up some of its power on behalf of individuals who are not even their nationals. Generally, the only reason a state would ever compromise in this manner is if there is somehow a sense of reciprocity – that if state A does not observe the agreed set of conditions for citizens of state B, state B would do the same for citizens of state A. As Beth Simmons argues, mobilizing for human rights is difficult because there is a lack of reciprocity.12 No state would ever agree to a substantive treaty on asylum seeking on the fear of reciprocity. The state would not want to admit to causing its own nationals to leave the country to escape the state’s persecution. Consequently, the UNHCR will be effective in regulating the treatment of asylum seekers only when it creates interest that rest outside the realm of human rights.

This is perhaps the greatest tragedy of all. The policies that have allowed for the shipwreck tragedy and

the detention center riots to take place are legal under international law and allow for the state to have broad latitude in their treatment of asylum seekers. Any obligations in its immigration policy are mostly directed at individuals who the Immigration Department has identified as refugees. Therefore, Australia has enormous incentives to decrease the number of asylum seekers – it has an incentive to intercept ships of boat people before they reach the shore so as to decrease the population in its detention centers and to decrease its obligations to individuals who could become refugees. This is why the number of asylum applications made in industrialized countries has been in decline over the last ten years13 even though the total number of displaced persons in the world has risen to its highest level since the 1990s14. International law on refugees offers the legal framework that may allow for states to justify their actions, but it in no way offers political solutions or substantive guidance. For this reason, Australia cannot be entirely faulted for showing issues of late with their immigration policies and practices. Ultimately, however, international law favors state sovereignty over individual rights, which leaves asylum seekers at a loss for protection under international law.

12 Simmons, Beth. “Theories on Compliance.” International Law course packet. Spring 2011.

13 United Nations High Commissioner on Refugees. “Asylum Levels and Trends in Industrialized Countries 2010.”

2011.

14 Lejeune-Kaba, Fatoumata. “Number of forcibly displaced rises to 43.3 million last year, the highest level since mid 1990s.” The UN Refugee Agency. 15 June 2010.

Omar al-Bashir: The International Criminal Court’s Folly in Pursuing a Genocidaire John Hoover On July 14, 2008, the Chief Prosecutor of the International Criminal Court filed an application with the tribunal’s Pre-Trial Chamber I for a warrant for the arrest of incumbent Sudanese President Omar Hassan Ahmad al-Bashir. The move came after years of struggle on the part of Prosecutor Luis Moreno Ocampo in his attempts to bring the perpetrators of crimes against humanity in Darfur to international justice. Yet even after securing an international indictment for a myriad of crimes against humanity and finally genocide in mid-2010, the prosecutor has had little success in bringing Sudanese nationals to trial before the international tribunal.

The warrant itself, though intended to prosecute the most serious of human rights violations, was received amid extreme controversy by the international community. Given the currently volatile state of Sudan, many political analysts and leaders doubt the true viability of arresting the sitting Head of State. Though President Omar alBashir of the Republic of Sudan is indisputably guilty of the numerous crimes against humanity for which the International Criminal Court has indicted him, the impotence of the warrant and al-Bashir’s political position as the leader of a nation constantly on the edge of devastating civil war create a unique case for delaying his detention until the nation’s overall security can be achieved.

The current conflicts in Sudan arise from a lengthy history of division between the country’s numerous

regions and ethnic groups. Beginning in the 17th century, northern Sudan converted increasingly to Islam and was subject to ceaseless inter-tribal warfare. Muslim tribes from the north would incessantly raid southern settlements for slaves to sell to the Ottoman Empire. Sudan was conquered by the Turks in 1820 and unified for the first time by the Ottoman armies.1 In the late 19th century, Sudan was transferred to British control, where imperialist doctrines sowed the seeds for future division. The British treated northern and southern Sudan as essentially separate nations. After 1922, movement between the north and south even required a permit.

Southern children were educated as Christians, clashing with the entirely Muslim education offered to students in the north.2 In 1953, southerners won only 9 out of 99 seats on the transitional parliament, despite the fact 1 2

Diana Childress, Omar al-Bashir’s Sudan (Minneapolis: Twenty-First Century, 2010), 18-19.

Ibid., 24-27.

that a quarter of the population resided there.3 On January 1, 1956, the British government, under pressure from the newly freed Egyptian regime, finally declared independence for the Sudanese people, allowing them to build their own representative government. Even in this supposed democracy, however, the southern sections of the country continued to be grossly underrepresented. Following a series of military coups d’état that imposed harsh Muslim Sharia law even in the south, guerilla groups such as the Anya-Nya began to resist the northern regime.

In 1983, under the rule of Gafaar Nimeiri, the Southern People’s Liberation Movement/Army (SPLM/A) arose as an organized force against the northern military and soon began to gain territory and support.4 Nimeiri’s successor, Sadiq al-Mahdi, only escalated the violence, arming large groups of herdsmen against a specific tribe, the Dinkas. In order to pay these militias, Sadiq allowed wide-spread looting and pillaging, a tactic that alBashir would employ two decades later.5

By the late 1980s, Sudan was on the brink of chaos. Nimeiri’s economy had all but collapsed, and unrest

could be felt throughout the country. On the night of June 31, 1989, Omar al-Bashir, then a brigadier general, took control of the capital with his military forces, effectively staging his own coup d’état under the pretext of saving the country from Sadiq and “rotten political parties.”6 Al-Bashir immediately arrested his political opposition and dissolved the sitting parliament and political parties. Dissent was rampant, and the war with southern Sudan raged on for over a decade. By late 1999, both sides were growing weary of conflict. The military chewed up over 40% of the country’s budget, most of which came from oil mined in the South.7 The SPLM/A was losing, and the southern people, many of them now refugees, were ready for peace. Finally in 2000, both sides were brought to peace talks in Nairobi by the Intergovernmental Authority for Development (IGAD).

In 2002, procedures for ensuring peace were established, and in July both aggressors ratified the Machakos Protocol, calling for a lasting ceasefire.8 In January 2005, the Government of Sudan signed the Comprehensive Peace Agreement (CPA) with the SPLM/A, providing for joint rule under the transitional Government of National Unity, secular law in the south, and the option for southern Sudan to vote for its own independence in

3 Ibid., 32.

4 Robert Collins, A History of Modern Sudan (Cambridge: Cambridge UP, 2008), 180-185.

5 Diana Childress, Omar al-Bashir’s Sudan, 8.

6 Ibid., 52.

7 Robert Collins, A History of Modern Sudan, 191.

8 Edward Thomas, Against the Gathering Storm: Securing Sudan’s Comprehensive Peace Agreement (London: Royal Institute for Foreign Affairs, 2009), 2.

January 2011.9

While the situation in the southern regions of the country was improving under al-Bashir’s leadership,

new fighting was erupting in the western states, an area known as Darfur. Since his rise to power, al-Bashir had always favored western tribes such as the Missiriyya and Beni Halba over the Fur, Zaghawa, and Masalit as a result of historically-ingrained, inter-tribal tensions.10 He intentionally disenfranchised them by cutting his new state borders through the Fur homelands, creating two minorities instead of a majority. The tribes also strongly opposed the strict Sharia law imposed by al-Bashir’s government. In 2002, members of these tribes, among others, formed the Sudanese Liberation Movement/Army (SLM/A), a group notably separate in goals and organization from the SPLM/A.11 Another group with a different political agenda created the Justice and Equality Movement ( JEM) to fight the Sudanese government.1 Both of these militias began raiding army garrisons and together in 2003 assaulted the Sudanese air force base at al-Fasher.12 Al-Bashir’s military was already weakened from direct war within the south, so he opted for a different strategy. Instead of targeting the rebels, he attacked the civilians. He recruited groups of young Arab herdsmen into a newly-created Popular Defense Force. Most of the men joined not out of loyalty to the government, but rather from the promise of gaining property from those they defeated.13 These militias came to be known as the janjaweed, or “devil riders.”14 They used a scorched earth policy, burning through villages as they came upon them. By 2006, the Sudanese government came under intense pressure from the African Union (AU) to end aggressive action in Darfur, and in May of that year the Darfur Peace Agreement was signed. The AU deployed a peacekeeping force, yet it found that it was too small to quell the violence. It requested assistance from the United Nations, and in 2008 the joint AU/UN Hybrid Operation in Darfur (UNAMID) was created to bring a more stable peace to the area.15

Despite the apparent pull towards peace, the United Nations was not finished with Darfur. In 2004 the

UN Security Council had created a Commission of Inquiry on Darfur.16 The Commission reported that large human rights violations had occurred in the region, but it had failed to find enough evidence to suggest that genocide had taken place. Nevertheless, the Commission recommended referral of the case to the International 9

Ibid., 3.

10 Diana Childress, Omar al-Bashir’s Sudan, 71.

11 Ibid., 71.

12 Ibid, 72.

13 Lucas Buzzard, “Holding an Arsonist’s Feet to the Fire? - The Legality and Enforceability of the ICC’s Arrest Warrant for Sudanese President Omar al-Bashir,” American University International Law Review 24.5 (2009): 907.

14 Robert Collins, A History of Modern Sudan, 276.

15 Diana Childress, Omar al-Bashir’s Sudan, 76.

16 Lucas Buzzard, 908.

Criminal Court (ICC) under Chapter VII of the UN Charter.17 On March 31, 2005, the United Nations Security Council referred the “situation in Darfur” to the Prosecutor of the International Criminal Court.18 In early 2007, Luis Moreno Ocampo had arrest warrants issued for both Ahmad Harun, a Sudanese minister, and Ali Kushayb, a leader of the government-supported janjaweed militias. Both were indicted in connection with acts of genocide in Darfur.19 The Sudanese government outright refused to surrender the two men, with one high-ranking official promising to “slit the throats” of anyone who attempted to extradite his fellow citizens to the ICC, prohibiting any possibility of apprehending the accused. Following this and other acts of defiance, Ocampo opened an investigation on Omar al-Bashir, the sitting President of Sudan.20

In 2008 Ocampo argued his case before a chamber of the ICC and an arrest warrant was issued. The

tribunal stated quite confidently that “there are reasonable grounds to believe that Omar Al Bashir is criminally responsible under article 25(3)(a) of the Statute as an indirect perpetrator, or as an indirect co-perpetrator, for war crimes and crimes against humanity and that his arrest appears to be necessary under article 58(l) (b) of the Rome Statute.”21 It was demonstrated that the Sudanese government had issued a “general call for the mobilization of the Janjaweed Militia” and had continued to direct this group throughout its military campaign.22 The court continued to describe the ways in which these groups engaged in acts of pillaging, “widespread” and “systematic” violence against civilians as described under article 8(2)(e) of the Rome Statute, “murder, extermination, forcible transfer, torture and rape, within the meaning of articles 7(1)(a), (b), (d), (f ) and (g) respectively of the Statute, throughout the Darfur region.” Finally, noting that he was the de jure and de facto leader of Sudan and was in “full control of all branches…of the State of Sudan,” the Chamber placed responsibility for the illegal counter-insurgency plan on Omar al-Bashir.23 However, the Chamber concluded that the Prosecutor had provided an insufficient and “erroneous standard of proof ” for genocide and advised him to return with more solid evidence, though public documents do not state exactly what was missing from the application.24 On February 3, 2010, after collecting more depositions, Ocampo returned to Pre-Trial Chamber 17 Omer Yousif Elegab, “Indicting the Sudanese President by the ICC: Resolution 1593 Revisited,” International Journal of Human Rights 13.5 (2009): 1.

18 United Nations. Security Council. Resolution 1593. United Nations. United Nations, 2005. <http://www. un.org/Docs/journal/asp/ws.asp?m=S/RES/1593(2005)>.

19 Victor Peskin, “Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan,” Human Rights Quarterly 31.3 (2009): 666.

20 Ibid., 654.

21 The Prosecutor v. Omar Hassan Ahmad al-Bashir, No. ICC-02/‌05-01/‌09, International Criminal Court, 4 Mar. 2009, <www.icc-cpi.int>, 3.

22 Ibid., 4.

23 Ibid., 7.

24 Ibid., 4.

I with a new application for a warrant with the charge of genocide. Ocampo presented enough evidence to satisfy the judges that forces under al-Bashir’s control had “committed the crimes of genocide by killing, genocide by causing serious bodily or mental harm and genocide by deliberately inflicting conditions of life calculated to bring about physical destruction.”25 These acts fall under the definition of genocide as stipulated by the Convention on the Prevention and Punishment of the Crime of Genocide and the Rome Statute, two documents widely ratified and accepted as international law. The Prosecution again followed the argument that, as acting head of the Sudanese armed forces, Omar al-Bashir was responsible for the acts of genocide committed by his troops.26

Al-Bashir is not the first sitting Head of State to be indicted by an international court, and, in analyzing

the viability of his warrant, one must consider the precedents for such judicial decisions. One of the most prominent cases is that of Yugoslavian President Slobodan Milošević, who was the sitting President during the Yugoslav Wars and Bosnian Conflict. As part of its response to the situation in Bosnia, the UN Security Council created an ad hoc tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY), which was mandated to investigate and prosecute crimes against humanity committed in Yugoslavia since 1991.27 The ICTY formally indicted Milošević in 1999 on charges of war crimes (the additional charge of genocide was not added until after Milošević was apprehended).28 In 2001 he was arrested by security forces, and, when attempts to prosecute him within Yugoslavia failed, he was extradited to The Hague for prosecution by the ICTY.29 Milošević died from a heart attack while he was on trial; yet the attempt to prosecute him for crimes committed while he was acting Head of State shows a strong push for criminal accountability in the context of political leaders. However, one will notice a large difference between the case in Yugoslavia and the current situation in Sudan. In the Yugoslavian conflict, NATO had effectively neutralized aggressive components of Milošević’s military, and, once he fell out of power, security forces could quite easily and forcefully arrest him. Unfortunately, this is not the case in Sudan; al-Bashir is still firmly in power, and any attempts to forcibly remove him from his post would unquestionably lead to war.

The case against Charles Taylor is another example where an arrest warrant was issued for a sitting

25 The Prosecutor v. Omar Ahmad Hassan al-Bashir, No. ICC-02/‌05-01/‌09, International Criminal Court, 12 July 2010, <www.icc-cpi.int>, 7.

26 Ibid., 9.

27 Payam Akhavan, “Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism,” Human Rights Quarterly 31.3 (2009): 626.

28 Lilian A. Barria and Steven D. Roper, “How Effective Are International Criminal Tribunals? An Analysis of the ICTY and the ICTR,” International Journal of Human Rights 9.3 (2005): 7.

29 Payam Akhavan, 626.

head of state. Following the Sierra Leone Civil War, the UN Security Council gave a Chapter VII mandate to establish the Special Court for Sierra Leone (SCSL) to investigate alleged war crimes committed during the conflict.30 In 2003, the Court found reasonable grounds to indict the President of Liberia, Charles Taylor, for his role in human rights violations and aid to the Revolutionary United Front, a rebel group active in Sierra Leone.

Taylor was arrested in Nigeria in 2006 and soon extradited to Liberia for trial, where he will likely be convicted by the end of 2011.31 Here, the Head of State was again placed on trial for crimes committed during his term in office, yet he was not forcibly apprehended by security forces while in his own country. In addition, Taylor had already left office by the time he was placed into custody.32

There is significant controversy among international critics as to whether or not Heads of State should

be immune from prosecution. The tenets of conventional diplomatic immunity are outlined in the 1961 Vienna Convention on Diplomatic Relations; however, the convention is moot on the point of immunities for a Head of State.33 There are traditionally two forms of immunity that can be applied to a Head of State. The most important to common affairs is immunity ratione personae, which dictates that a sitting Head of State is inviolable and immune from prosecution by foreign courts even if suspected of crimes against humanity; alBashir would currently be subject to this immunity. A second form is immunity ratione materiae, which protects former Heads of State from prosecution even after they have left office. This is to alleviate individuals from responsibility for state actions and to prevent states from influencing one another by prosecuting those who act on their behalf.34 This doctrine, if allowed to dictate international law, could permanently prevent the prosecution of Heads of State for crimes against humanity.

International judgments themselves are conflicting and indecisive. The Arrest Warrant Case of 2000 adjudicated by the International Court of Justice asserted that an arrest warrant issued by Belgium for the incumbent Foreign Minister of the Congo on crimes against humanity was illegal because it “failed to respect the immunity from criminal jurisdiction” that arises from political office.35 In contrast, the Special Court for Sierra Leone found that it could fully disregard Taylor’s customary immunities because it was “part of the machineries of international justice” and was given a Chapter VII mandate over all crimes committed in Sierra 30 Manisuli Ssenyonjo, “The International Criminal Court and the Warrant of Arrest for Sudan’s President Al-Bashir: A Crucial Step Towards Challenging Impunity or a Political Decision?” Nordic Journal of International Law 78 (2009): 408.

31 Ibid., 409.

32 Manisuli Ssenyonjo, 408-409.

33 Lucas Buzzard, 913.

34 Ibid., 915.

35 Ibid., 915.

Leone.36 In the first case, Belgium’s right to prosecute was denied on the grounds of ratione personae, yet Taylor’s similar immunity was overcome by the SCSL. The difference is presumably the fact that Sierra Leone, similarly to the ICTY, was given Chapter VII authorization by the UNSC to pursue any case within the confines of the civil war. Therefore, it becomes clear that definite and special jurisdiction must be established in order to pursue cases against Heads of State.

Article 27 of the Rome Statute, the ICC’s charter, states that it “shall apply equally to all persons without any distinction based on official capacity, [particularly] official capacity as a Head of State or Government.”37 However, Sudan has never ratified the Statute and is therefore customarily not subject to it in any way, shape, or form. The Vienna Convention on the Law of Treaties prevents requirements for states and third parties to adhere to treaties they have not ratified. In fact, in 2008 the Sudanese government sent a cable to the UN Secretary General stating its intention to never accede to the Rome Statute.38 In order to purse al-Bashir and others in Sudan, the ICC would need additional legal support, and in 2005 it was found.

On March 31 of that year, the UN Security Council passed Resolution 1593, which referred the situation in Darfur to the International Criminal Court as a Chapter VII mandate.39 Similar resolutions had created ad hoc tribunals such as the SCSL, ICTY, and Rwandan ICTR. Chapter VII of the United Nations Charter acts as an effective elastic clause for use by the Security Council and asserts that decisions made by the body act as international law and are binding for all UN member states. By receiving a referral from the Council, the ICC had obtained jurisdiction equivalent in force to that of the earlier ad hoc tribunals and could assert its powers under the Rome Statute over Sudan. This includes Article 27 of the Rome Statute, which eliminates Head of State exemptions. From that point on, President al-Bashir was within the court’s reach.

Although the ICC has the ability to prosecute al-Bashir for his crimes relating to Darfur, many continue to doubt the sagacity of such a course of action. Previous cases had resolved with positive effects, yet it is unsure whether they could be applied to al-Bashir’s situation. In the former Yugoslavia, the ICTY had served to create a certain element of deterrence for those involved in human rights violations. Indictments of leaders such as Radovan Karadžić and Ratko Mladić served to distance them from the political sphere and dramatically lower their abilities to continue committing crimes.40 In these cases, indictments stabilized the country. However, indicting a sitting Head of State without clear means to apprehend him has resulted in the opposite effect in 36 Ibid., 916.

37 United Nations. Rome Statute. United Nations, <http://untreaty.un.org/cod/icc/statute/romefra.htm>, 18.

38 Lucas Buzzard, 920.

39 Resolution 1593, 1.

40 Payam Akhavan, 634.

Sudan. Immediately following the arrest warrant, al-Bashir expelled over a dozen aid agencies from the country, leaving more than one million people without access to food, water, and healthcare services and catastrophically worsening the country’s humanitarian situation.41 The warrant caused a strong “turtling” effect on the part of the Sudanese government, which was attempting to protect itself from a massive confrontation by the international community.

Following a reaction such as this, one must consider the heavy cost-benefit ratio of pursuing accountability in human rights cases. As Professor Payam Akhavan states, there are two sides to this debate: “the ‘judicial romantic’ blindly pursuing justice in contrast with the cynical ‘political realist.’”42 Each side has its own goals and outcomes that must be carefully considered. The former wishes to create a world in which the threat of prosecution by an international tribunal would indefinitely deter crimes against humanity (i.e., leaders would understand that acts such as ethnic cleansing unequivocally lead to arrest and trial). Yet, in many cases, searching for this form of justice comes at a cost. Threats of prosecution that arise in the midst of a conflict can lead those in power to prolong hostilities if only to hold onto office and remain out of reach. The path to immediate pacification and a timely end to conflicts lies in offering immunity. This strategy provides significant incentives to bring about peace and allows leaders a comfortable way out. Reconciliation commissions, especially those used in post-war Rwanda, proved to be incredibly effective in rebuilding relations within the country, something that tribunals alone could never accomplish. However, these bodies were used mostly to placate the general population, not those who incited and led the mass killings of 1994 Rwanda. To many, impunity for a sitting Head of State responsible for mass ethnic cleansing is simply unacceptable.

On this note, one must consider the positive effects that have arisen from al-Bashir’s indictment. Since the warrant was issued, observers have noticed a significant squeeze upon the Sudanese government’s actions.

Elements of the government began to see “accountability” as a large factor in decision-making, understanding that the international spotlight was on them.43 From the attempts to place blame, serious divisions between government forces and the janjaweed militias arose, lessening their effectiveness at targeting civilians. Many also see the 2008 ceasefire in Darfur as a direct result of this increased international attention, though it is impossible to say whether or not it would have happened in the absence of al-Bashir’s indictment. A month after the warrant, President al-Bashir also promised that his government would pursue its own investigations and prosecutions regarding atrocities in Darfur, though this was quite likely a move made to please the international 41 42 43

Ibid., 648.

Ibid., 652.

Ibid., 648.

community and to allow the Sudanese government the ability to place blame where it saw fit.44 While the ICC’s action may have lessened al-Bashir’s inclination to cause conflict, it proved to be too strong. These benefits cannot outweigh the resulting removal of humanitarian support for over a million refugees.

In 2008, the International Criminal Court had several other options to pursue. In many cases, the simple threat of prosecution can have the desired effect of prohibiting violence. By mid-2004, Côte d’Ivoire was on the brink of ethnic conflict. Radio and television broadcasts spread hate messages, and genocide could have broken out at any point. In November of 2004, the UN Security Council passed Resolution 1572, condemning any incitement to violence and threatening prosecution by the ICC.45 This move effectively halted escalation of the conflict and promoted peace without having to appeal to international courts for assistance. Although this example occurred before any violence had broken out, its basic principle can be applied to the case of alBashir. By seriously threatening a warrant for al-Bashir, the UN and ICC could have reached their desired effect without causing the expulsion of non-governmental organizations from the country. The Sudanese government would have then become aware that it was being watched by the international community and would likely have taken action to appease international observers, giving all the positive benefits of an actual warrant without alBashir’s deleterious closed-door response.

The ICC also neglected to consider the basic enforceability of the warrant it issued. There are essentially four ways for someone to be apprehended and brought before the Court. The first and most simple path is for the accused to turn himself in. This event is rather unlikely to occur in the case of Omar al-Bashir. The second is for al-Bashir to be arrested by Sudanese officials and extradited. Given his currently solid position of power, this option does not appear viable. The third possibility is for a UNAMID or other internationally mandated body to forcibly arrest him. This path would unquestionably lead to war and would unacceptably destabilize the nation; the African Union would also prohibitively oppose this course due to its initial stance against al-Bashir’s warrant. The final and most practicable option is to arrest al-Bashir while he is in another country that is party to the Rome Statute before sending him to the ICC for trial, yet even this option would prove difficult.46 The Rome Statute, the document that defines and limits the ICC’s powers, creates a difficult case for arresting Heads of State while abroad. Article 27 of the Statute states quite clearly that “[the] Statute shall apply equally to all persons without any distinction based on official capacity.”47 This clause effectively eliminates 44 45 46 47

Richard Cockett, Sudan: Darfur and the Failure of an African State (New Haven: Yale University, 2010), 245.

Payam Akhavan, 639.

Lucas Buzzard, 931.

United Nations, Rome Statute, 18.

any assumed immunities given to Heads of State. However, the ICC has no executive branch with which to carry out its own arrests and therefore relies on member states to act on its behalf. The Rome Statute naturally includes limitations on the requirements placed upon states by the Court. One such limitation is outlined in Article 98(1) of the Statute, stating, “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State.”48 In the case of Omar alBashir, individual nations still respect his immunity ratione personae and in most cases refuse to apprehend him under Article 98(1).

Since the 2008 warrant, al-Bashir has enjoyed a surprising ability to travel outside of Sudan. In 2009 he visited Egypt with impunity in an apparent act of defiance against the warrant. Later in the year, he also visited Libya without any consequences.49 From these instances, it would appear that the ICC’s conventional methods of bringing the accused to trial are wholly ineffective for al-Bashir. Western nations are also loath to invoke traditional universal jurisdiction and forcibly apprehend al-Bashir. The United States sees Sudan as a “strong partner in the War on Terror”50 and would not support exceedingly strong action against its government.

Chinese investors are increasingly active in the Sudanese economy, and Russia relies on the Sudanese army as a market for military equipment. Altogether, these nations’ interests in continuing positive relations with the government of Sudan rule out the possibility of any supported international action against al-Bashir.

It would appear that the International Criminal Court has issued an unenforceable warrant. Together with the Court’s lack of a strong arm to pursue al-Bashir, his current stability within his own country, and the refusal of other nations to take al-Bashir into custody, bringing him to trial would be nearly impossible. Yet even if al-Bashir were to be arrested, the effects would be unlikely to resolve the violence in Sudan. In fact, it would likely lead to a drastic increase in hostilities.

In 2005, the Sudanese government signed the Comprehensive Peace Agreement with the SPLM/A, effectively ending over ten years of civil war. The Agreement specifically allowed for southern Sudan to vote for its independence in January 2011.51 However, since 2005 tensions have continued between northern and southern Sudan, particularly in the oil-rich region of Abyei. In May of 2008, violence again broke out in this

48 Ibid., 69.

49 “Wanted Bashir ‘Drops Uganda Trip’,” BBC, 16 July 2009.,<http://news.bbc.co.uk/2/hi/africa/8154730.stm>.

50 Payam Akhavan, 647.

51 “South Sudan Referendum: 99% Vote for Independence,” BBC, 30 January 2011, <http://www.bbc.co.uk/ news/world-africa-12317927>.

area between northern and southern forces. The clashes killed 89 people and displaced 50,000.52 Many see Abyei as a potential flash point to reignite war within Sudan, and any instability could easily lead to resumed conflict.

Another point of concern is wealth-sharing between the two newly-shaped states. Significant oil resources lie in the south, yet most refineries are in northern Sudan.53 Disagreements on where funding and wealth should be allocated have also caused issues. President al-Bashir has stated his concerns regarding stability within the south.54 However, he swears to respect southern Sudan’s decision, a promise that another leader in his place may be less likely to make. Instability lies even within the north itself. Al-Bashir rests atop an increasingly fragmented and separated body politic, one that would quickly implode without significant leadership. Given the current state of his own country, simply removing al-Bashir from his government would have enormously destructive effects upon its stability and would unquestionably cause a power struggle and eventual war.

Once one has considered the entire picture surrounding the situation in Sudan, it becomes clear that the ICC has made a mistake in issuing a warrant for President Omar al-Bashir. The Sudanese government’s initial reaction proved disastrous to the humanitarian goals within Sudan and backfired on the ICC. The Court’s profound inability to apprehend al-Bashir and bring him to trial shows the warrant’s overall futility and foolishness. Additionally, the effects of a successful execution of said warrant would without doubt destroy the tenuous peace Sudan is currently enjoying. Such a result would be entirely unacceptable. However, as previously stated, it would be difficult to allow al-Bashir to escape with impunity. In order to achieve its goals of accountability and further the deterrent international atmosphere it hopes to create, the ICC could have initially threatened prosecution in order to cool off hostilities within Sudan, restraining itself from more provocative action. Once al-Bashir stepped down from power, it would be much easier to circumvent his immunity ratione personae. However, there is little that can be done to alleviate the current situation. Retraction of the ICC warrant would be deleterious to any sense of deterrence already present among Heads of State, especially within Africa. At this time, the best route that can be pursued is a Security Council deferral under the Rome Statute, which would postpone the warrant’s effect for at least a year. However, no recourse will be able to fully relieve the current situation of the International Criminal Court and the international community. While accountability for human rights violations must be pursued wherever and whenever practical, it is in many cases much more propitious to uphold the status quo as opposed to seeking idealized and costly international justice.

52 Edward Thomas, Against the Gathering Storm: Securing Sudan’s Comprehensive Peace Agreement, 18.

53 Ibid., 19.

54 “Bashir Doubts South’s Viability,” AlJazeera, 8 Jan. 2011, <http://english.aljazeera.net/‌news/‌afri ca/‌2011/‌01/‌2011171839053529.html>.

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