A World of Knowledge

It is odd that Americans are so reluctant, if not hostile, to looking abroad for ideas about how to do things, such as education, voting methods, healthcare, etc. The principles and ideas that underpinned this nation’s founding did not emerge from nowhere: They were inspired by, or even directly drawn from, Enlightenment thinkers from across Europe; certain elements of British law and government (ironically), such as the Magna Carta and English Bill of Rights; and of course the Greeks and Romans, from whom we borrowed specific methods, institutions, terminology, and even architecture. (The U.S. Senate is explicitly inspired by the original Roman Senate, with senatus being Latin for council of elders.)

Americans make up less than five percent of humanity. The U.S. is one of nearly 200 countries. Its history as a nation, let alone as a superpower, is a relative blink in time; as a point of reference, the Roman-Persian wars lasted over 600 years, nearly three times America’s lifespan. Conversely, many countries are much younger, including most of the world’s democracies, providing fresher or bolder perspectives on certain issues not addressed or contemplated by our more conservative system.

Given all that, it stands to reason that someone, somewhere out there, has done something that we have not thought of or figured out, something worth studying or implementing. It is statistically unlikely that we are the only people or nation to know everything, giving our narrow slice of time, humans, and experience. The fact that so many innovators, inventors, and other contributes this country have come from all over the world proves the U.S. has always tacitly accepted the idea that the rest of the world has something to offer.

In fact, this would be in accordance with the vision of most of the nation’s founders, who were far from nationalistic. Their debates, speeches, and correspondences reveal them to have been fairly worldly folks who were open to foreign ideas and perspectives and sought to integrate the country into the international system. From Jefferson’s cherished copy of the Muslim Koran, to Franklin’s open Francophilia and Madison’s insistence that we respect global public opinion and norms, the supposed dichotomy between patriotism and internationalism is a false one at odds with one’s service to the nation.

It is all the more ironic because one of the few schools of philosophy to originate in the United States was pragmatism, which emerged in the 1870s and postulated, among other things, that people promote ideas based on their practical effect and benefit (i.e., regardless of their national or foreign origin). It should not matter where our solutions to certain problems come from it matters that they are solutions, and thus beneficial to our community, in the first place.

Patriotism v. Globalism?

Americans have created this false dichotomy between patriotism and “globalism”, as if caring about international law, global public opinion, and the ideas of other nations is somehow intrinsically “un-American”. This would have been absurd to the Founding Fathers, who by today’s standards would be labeled globalist elites.

None other than James Madison, the father of the constitution, insisted that “no nation was so enlightened that it could ignore the impartial judgments of other nations and still expect to govern itself wisely and effectively”. In Federalist 63, he stressed the importance of respecting the consensus views of other countries and even believed that global public opinion could help keep ourselves in check:

An attention to the judgment of other nations is important to every government for two reasons: The one is, that independently of the merits of any particular plan or measure, it is desirable on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy: The second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion, or momentary interest, the presumed or known opinion of the impartial world, may be the best guide that can be followed.

Madison even adds that America would flourish if it considered the judgments and views of the world:

What has not America lost by her want of character with foreign nations? And how many errors and follies would she not have avoided, if the justice and propriety of her measures had in every instance been previously tried by the light in which they would probably appear to the unbiassed part of mankind?

Madison was far from alone in this view. Most of the founders, including Alexander Hamilton, John Adams, John Jay, and Thomas Jefferson, shared this sentiment, which is reflected in the U.S. Constitution. The Supremacy Clause states that international treaties are the supreme law of the land, even superseding conflicting domestic laws. The little known Offences Clause commits Congress to safeguard the “law of nations”, which we now cause international law. The Supreme Court has consistently upheld America’s commitments to international law; in one of its first cases, Ware v. Hylton, it ruled that the U.S. was bound by the terms of its peace treaty with Britain—even if it meant striking down a patriotic but conflicting state law. Many other cases—Missouri v. Holland, U.S. v. Curtiss-Wright, and The Paquete Habana, among others—followed suit.

Back in Madison’s day, most nations were monarchies in some form. Yet even then Americans saw the merit in garnering their respect or learning from them. Now that we have a more diverse community of nations—including dozens of democracies and allies—we have even more reason to take seriously our commitments to the world and our openness to its ideas.

Srebrenica and the ICTY

Last week was the 25th anniversary of one of the worst atrocities in the world, and the first in Europe, since the Second World War. From July 11th through the 22nd, over 8,000 men and boys were rounded up and massacred in and around the town of Srebrenica, in present day Bosnia-Herzegovina. The victims were targeted Serbian paramilitary forces for being Bosniaks, a predominantly Muslim ethnic group that were among the peoples vying for an independent state following the collapse of Yugoslavia.

The crimes in Srebrenica were part of the broader Yugoslav Wars that broke out almost as soon as Yugoslavia began to unravel in the early 1990s. Over the span of a decade, several different conflicts broke out, most characterised by indiscriminate slaughter, the targeting of civilians, war rape, and other crimes against humanity. Many concepts and principles in international law, particularly with respect to criminal and human rights law, were refined or developed in relation to wars; the term “ethnic cleansing” originated as a euphemism among the perpetrators of crimes like Srebrenica.

Having studied genocide and political violence in undergrad, and international criminal and human rights law in law school, Srebrenica is deeply seared into my mind. As my time and willpower are both short in short supply, I’ll focus on the sole bit of justice and redemption for humanity that emerged from this decade-long horror show: the International Criminal Tribunal for the former Yugoslavia (ICTY), established by the United Nations specifically to address crimes like Srebrenica perpetrated during the conflict.

ICTY logo.svg
Official logo of the ICTY
The Tribunal’s headquarters in The Hague, Netherlands

The Yugoslav War had just started when the Tribunal was created, and the massacre at Srebrenica would not occur for another two years. The idea of prosecuting crimes committed, or yet to be committed, in the former Yugoslavia had been proposed by Germany—the last country to be subjected to a war crimes tribunal, at Nuremberg after WWII, up until that point. Remarkably, all fifteen members of the UN Security Council agreed to set up a special court that would try perpetrators of war crimes and crimes against humanity. It is hard to imagine such unanimity today.

Of course, there is something deeply grim about the UN—and even its most powerful members—failing to prevent or stop these horrific crimes, yet setting up a court to address them in the meantime. But as any student of international relations knows, such as the power of state sovereignty, the principle that no country should interfere in the affairs of others accept in the most extreme circumstances (i.e., a world war). Among other reasons, the horrors in the former Yugoslavia were probably just too contained in these small, newly-minted countries for any country to be willing to risk the money and troops (a problem we’re all too familiar with years later, given the continuing bloodletting in Syria).

But, as The Economist and others have pointed out, the ICTY, though too little and too late in its prosecutions, did bring justice to virtually all those who planned, led, aided, or were involved in the atrocities at Srebrenica and elsewhere. It’s difficult to overstate how remarkable it was the such an institution was every established, let alone allowed to do its work, even by the most powerful global interests.

As the Bosnian war ground on and Serb forces besieged Sarajevo, the Bosnian capital, foreign powers could not agree how to respond. No one wanted to send troops to separate the parties. But they all approved the prosecution of war criminals, so backed the establishment of the tribunal. At first the court, based in The Hague, had little money. It also had no police of its own to arrest anyone indicted. But over the years its influence increased. It demanded that the Balkan states and others carry out arrests, and also got help from NATO-led peacekeepers in Bosnia. It succeeded in making the handing over of those indicted a political issue, with sanctions slapped on Serbia and Croatia when they dragged their feet.

Some of its achievements were legal and some political. Several of the most evil of the wartime actors were imprisoned. The tribunal gave victims and civilians a voice, and often justice, in a way that would not otherwise have been possible. It created new legal precedents. Sexual violence is now considered a war crime. It established the groundwork for other courts, including those that looked into horrors committed in Rwanda and Sierra Leone, and the International Criminal Court (ICC). Its 2.5m pages of transcripts provide an extraordinary archive. It established that genocide had taken place when some 8,000 Bosniaks (Muslims) were murdered as Srebrenica fell. To weigh against all this there must be the acknowledgment that many believe that justice was not always done. The hopes that many had for the tribunal have at times been disappointed. It did not accelerate the process of reconciliation. Many believe there was interference, from America and elsewhere, in its work. In cases related to Kosovar Albanians, in particular, prosecutors alleged witness-tampering.

According to Eric Gordy, a sociologist at University College London’s School of Slavonic and East European Studies, the court tried to end impunity for war crimes and in this “it was partially successful”. It was founded at a time when there was still some consensus about the need for this. Now, sadly, that is no longer the case. There is no international tribunal indicting anyone for war crimes in Syria. Russia and America are among those countries that have either withdrawn from the jurisdiction of the ICC or never ratified its statute. It remains to be seen whether the Yugoslav tribunal will become a relic from a more hopeful time or a trailblazer in a cause that was always bound to suffer setbacks.

For my part—and I say this as a privileged Westerner who is not even remotely impacted by these events—I believe the ICTY was a success. It indicted 161 individuals, from common soldiers all the way to prime ministers. Ninety defendants were convicted and sentenced, including the main perpetrators of the Srebrenica massacre.

On a broader level, the Tribunal developed international law and justice more substantively than any body since Nuremberg. , until very recently, it was the only court judging crimes committed as part of the Yugoslav conflict. Its lengthy and highly detailed proceedings helped gather and establish extensive facts about the horrors committed. Thousands of victims gained justice and a voice, including a myriad of eye witnesses, survivors, and the loved ones of victims. Several concepts in international criminal and human rights law were fleshed out or adjudicated for the first time. Many of the Tribunal’s decisions and findings would go on to influence national and international courts worldwide, including the tribunal established in the aftermath of the Rwandan Genocide.

Justice delayed is still justice served, for whatever that is worth. The Tribunal has not been without its criticism and shortcomings. It does not make up for the overall indifference and cynicism of the international community, which has hardly improved. And it certainly does not restore the hundreds of thousands of lives destroyed or traumatized in the former Yugoslavia, with survivors still shattered and wounded. But for much of human history, the very concept of a war crime—let alone prosecuting one—was alien. Indiscriminate looting, rape, and slaughter were acceptable against enemies or conquered peoples, broadly construed. The arc of progress, of human morality and fairness, is long, slow, and rarely linear. So many people have suffered and died along the way, and I shudder to think how many more will until crimes like Srebrenica are no more.

Bosnian Serb leader denies genocide in Srebrenica massacre
How much longer until this becomes a thing of the past?

German Policing

The national discussion on U.S. policing has me thinking about my semester seminar with Leipzig University, where we worked with German law students to do a comparative analysis on each country’s approach to certain policies and legal issues. I’ve also been to Germany a few times and seen firsthand how police operate and are regarded.

Like so much else in Germany, law enforcement is heavily shaped by the past. As in every authoritarian state, the police were a key instrument of Nazi oppression. Cops spied on and arrested political enemies, deported Jews, guarded ghettos, and helped kill more than a million people on the eastern front.

Ironically, some of the postwar reforms of German policing was also influenced by the Allies, including the United States. Since Germany is a federal constitutional republic much like our own, and relatively large and diverse, it offers a fairly good point of comparison. Here are some key points:

➡️ There is no German FBI. Law enforcement is handled at the state level but with similar national standards The closest equivalent—the delightfully named Office for the Protection of the Constitution—cannot make arrests, has limited surveillance powers, and all its actions can be challenged in court or by any German citizen. It is also banned from exchanging information with police except through a dedicated counterterrorism forum.

➡️ Before they even start, police applicants must pass personality and intelligence tests. Cops usually endure up to two and a half years of training, whereas U.S. training can vary wildly from 11 weeks to eight months (the latter being the average). In addition to weapons training, German police are required to visit a concentration camp; take classes in law, ethics, and police history; and learn techniques in deescalation and nonlethal force.

➡️ German police officers do not handle minor infractions like parking tickets nor respond to calls about noise and the like. Non-emergencies are handled by unarmed but uniformed city employees. (This was an idea of the Allies, who wanted to “demilitarize and civilize police matters”.)

➡️ Controversially, German police have what is known as a “monopoly of force”. Gun ownership in Germany is low—with about 5.5 million private firearms, mostly for hunting and sport—and shootings are thus rare. Fewer guns on the streets means officers feel less threatened and are less likely to pull out their weapons or respond with force. Moreover, violence is generally frowned upon in German society; the head of Berlin’s police forced noted that “even drawing a gun can lead to a police officer requesting psychological support.”

➡️ Regardless of the reasons, the use of weapons, let alone fatal police shootings, is rare in Germany. In 2011, German police fired only 85 bullets in total; in the U.S., 84 shots were fired at just one murder suspect in NYC. In 2018, German police fatally shot 11 people and injured 34; in the U.S., with a population four times Germany’s, over 100 times as many people (1,098) were killed by police. One state alone, Minnesota, saw 13 fatal shootings—two more than all Germany (with 88 million people versus Minnesota’s 5.6 million).

➡️ Of course, German law enforcement, like any human institution, is not perfect. Some have questioned whether the country’s approach is too passive, especially in the face of terrorism and political violence. There have been plenty of scandals concerning excessive violence, particularly towards immigrants; hence the country recently had the biggest protests regarding racism outside the U.S.

As one German police academy instructor advised, the most important lesson is that institutions like the police cannot change unless a society’s values change with it. “The police are a mirror of society. You cannot turn the police upside down and leave society as it is”.

Germany Commences the First Yazidi Genocide Trial

It is fitting that Germany should lead the way in prosecuting and trying alleged perpetrators of the horrific genocide against the Yazidis in Iraq. According to Just Security:

On April 24, 2020, six years after the Islamic State (IS) began persecuting and exterminating the Yazidi, the first ever trial addressing genocide against the religious minority will commence in Frankfurt am Main. In this case, as in the first case addressing state torture in Syria against two former Syrian intelligence officers whose trial started in Koblenz today, the complications of prosecuting mass crimes in third states collide with the long-awaited hope for accountability.

Iraqi national Taha Al J. is accused of having trafficked human beings for the purpose of labor exploitation and having cruelly killed a person as a member of IS. The suspect is charged under the Code of Crimes Against International Law (CCAIL) – the 2002 implementation of the Rome Statute into German criminal law – for acts of genocide, crimes against humanity, and war crimes.

The article gets into the grim details of the charges, but suffice it to say that they are deeply disturbing. The brutal campaign against the Yazidis has claimed thousands of lives, forced tens of thousands more from their ancient homeland, and has left an estimate 3,200 women and girls in sexual slavery. Even with Islamic State on the retreat, justice for the Yazidis and other victims remains elusive—hopefully not for long.

It is a testament to Germany’s commitment to international justice that it has implemented the principle of universal jurisdiction, in which a country or international organization (such as an international court), claims criminal jurisdiction over someone regardless of where the crime occured and whether the individual has any relationship. The idea is that some crimes are so serious, such as genocide or crimes against humanity, that they are inherently international in nature—they harm humanity as a whole and should not be tolerated.

As Just Security notes, the trial is remarkable for several reasons. Aside from being the first to address the crimes against the Yazidis, it is also the first trial to take place under universal jurisdiction, and to charge the crime of genocide under the CCAIL, which was enacted 18 years ago. Here’s hoping it isn’t the last.

The International Standards That Make Policing Better

Though most Americans dismiss if not deride international law, ironically the policing standards developed by the U.N., Council of Europe, and other international bodies affirm if not exceed our vaunted constitutional standards.

Many of the problems with American policing come down to the principle of reasonableness and the doctrine of qualified immunity, which the U.S. has adopted instead of the more common international standard of necessity and proportionality.

Reasonableness allows law enforcement officers to use lethal force when they believe it is “reasonable” to do so (based on their perception of the severity of the crime underway, the threat posed by the suspect, whether arrest is being resisted, etc.). Qualified immunity shields police from being sued except under the narrowest circumstances. In the already-rare chance that violence or death at the hands of police reaches court, the police officer’s assessment dominates, leading most often to “not guilty” verdicts.

The Supreme Court has nearly consistently given police a lot of leeway to use force; I recommend reading Sotomayor’s dissent in Mullenix v. Luna, where she argued that the Court is basically sanctioning a shoot first, think later” approach to policing. Having worked in both prosecution and defense, her perspective is uniquely more comprehensive than other justices.

However, under international law — which governs most other countries — the use of both lethal and “less-lethal” weapons (such as rubber bullets and tear gas) must be restricted to situations of necessity and in proportion to the associated risks. (Contrary to popular belief, rubber bullets and the like are not considered nonlethal; they are defined as “offering a substantially reduced risk of death when compared to conventional firearms”.) Foreign and international courts have found that the use of less-lethal weapons may amount to torture or ill-treatment if not “proportionate to the aim pursued, namely to disperse a non-peaceful gathering” and because the severity of the injuries are not consistent with “the strict use by the police officers of the force.” International law also lacks any equivalent to qualified immunity for police conduct.

Our Globalist Constitution

I had the good fortune of being published in the student newsletter of the American Immigration Lawyer’s Association (AILA), where I discuss the surprising international spirit of the U.S. Constitution and its Framers, including concerns about global public opinion, the privileging of foreign relations, and conforming to international law. Needless to say, this has considerable relevance to this day.

Please click this link to read the source, since I cannot upload documents here. I welcome any feedback and discussion!

Many thanks to those who supported and encouraged me through this process, from colleagues and professors to loved ones.

The Antarctic Treaty

On this day in 1959, twelve countries signed the Antarctic Treaty, the first arms control agreement established during the Cold War, which set the continent aside as a scientific preserve, allowed for freedom of nonmilitary research, and banned all military activity (including nuclear tests).

Official flag of the Antarctic Treaty

Impressively, the first countries to sign on were the Soviet Union and the United States, as well as all the countries that had official territorial claims over the continent. After entering into force in 1961, the Treaty helped keep Antarctica neutral, and has been honored to this day, making it one of the most successful treaties in the world.

Competing, but unrealized, claims over Antarctica.

There are now 54 members states, most of which maintain research stations throughout the continent. The Antarctic Treaty has since expanded through a series of agreements governing everything from environmental protection to mineral rights. A monitoring body based in Buenos Aires, Argentina ensures compliance while facilitating further consultations and developments.

It is yet another understated example of international law effectively at work!

Swearing an Oath

In light of the fact that some incoming Muslim congresswomen may be sworn in on a Quran (by Mike Pence no less), it is worth remembering that the U.S. Constitution does not require an oath of office to be sworn on a Bible, or on any religious text for that matter.

Article VI, Clause 3, which covers oaths of office, states that while elected officials in both state and federal governments, as well executive and judicial officers throughout the country, are bound “by oath or affirmation” to support the Constitution, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Of course, we have already had Jewish, Hindu, Buddhist, and Muslim representatives and officials, both in Congress and throughout various other state and federal offices, swear on their respective religious texts (Fun fact: In 2007, Keith Ellison of Minnesota, the first Muslim congressperson, was sworn in on a Quran formerly owned and cherished by Thomas Jefferson.)

But many other officials, both religious and secular, have sworn on nonreligious texts, or nothing at all. John Quincy Adams and Franklin Pierce swore on a book of law; Lyndon B. Johnson was sworn in on a Roman Catholic missal; and Teddy Roosevelt, who had to take the oath in a hurry after William McKinley’s assassination, did without anything, since there was no Bible on hand.

Moreover, many Christians are forbidden by their teachings to swear on anything; both Herbert Hoover and Richard Nixon, who as Quakers could technically not swear on anything, could have “affirmed” rather than “sworn” during their oaths, though it appears they did not do so.

The Offenses Clause and America’s Commitment to International Law

Article I, Section 8 of the U.S. Constitution contains the obscure but significant “Offenses Clause“, which empowers Congress to “define and punish … Offenses against the Law of Nations.” The law of nations was the 18th century term for what we now call international law.

As the time, these “offenses” would have included “attacks on foreign nations, their citizens, or shipping;” failing to honor “the flag of truce, peace treaties, and boundary treaties” (including unauthorized entry across national borders); and mistreating prisoners of war. The law of nations also obliged states to prosecute pirates, protect wrecked ships and their crew (regardless of their nationality); and protect foreign dignitaries and merchants in their territory.

Thus, the Framers clearly sought to convey to the world that the U.S. would be a responsible actor among the global community, enshrining in its highest legal instrument a commitment to safeguarding foreign nationals, property, and interests, even if it means ostensibly prosecuting American perpetrators.

Some jurists have argued that this provision, in theory, permits Congress to criminalize private conduct in the U.S. that violates international law.