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Pursuing Justice. Finding Solutions.

PEMEX, PEÑA NIETO, AND PETRO-CANADA: NAFTA AND MEXICAN ENERGY REFORM WITHIN THE CHANGING NORTH AMERICAN CRUDE OIL LANDSCAPE 

Zach Flati

I . Introduction

II. Petro-Canada

III. Free Trade

IV. Pemex

V. Previous Reforms of Pemex

VI. NAFTA

VII.  Energy Under NAFTA

VIII.  Foreign Investors Under NAFTA

IX. The Canadian Energy Scheme Under NAFTA

X. The Mexican Energy Scheme Under NAFTA

XI. The Need to Reform Pemex

XII. North American Pressures to Reform Pemex

XIII. Hydraulic Fracturing

XIV. Keystone XL

XV. Peña Nieto’s Proposed Reform of Pemex

XVI. Peña Nieto’s Reform’s Reception in Mexico

XVII. An Unanticipated Ally

XVIII. The Proposed Reform’s Intersections with NAFTA

XIX. Conclusion

 

I.   Introduction

On January 1, 1994, the North American Free Trade Agreement (NAFTA) between the United States, Canada, and Mexico took effect.[1] By the end of 1993, Canada produced 1.68 million barrels of crude oil per day (MBPD),[2] exported 0.516 MBPD,[3] and sent 83.5 percent of its crude oil exports to the United States.[4] Nineteen years later, Canada’s crude oil production rose to 3.14 MBPD,[5]; exports rose to 1.58 MBPD,[6]; and 99 percent of its exported crude went to the United States.[7] This progression equates to an 86 percent increase in total crude oil production, a 201 percent increase in crude oil exports, and a 260 percent increase in the number of barrels sent to the United States since NAFTA’s enactment.

Similarly, in 1993, Mexico produced 2.67 MBPD[8] of crude, exported 1.32 MBPD,[9] and sent 25 percent of its crude oil exports to the United States.[10] Yet in 2012, Mexico’s crude oil production fell to 2.59 MBPD,[11]exports fell to 0.79 MBPD,[12] and 48 percent of its crude oil exports went to the United States.[13] These developments equate to a three percent decline in total crude oil production; a 40 percent decline in crude oil exports and a 15 percent increase in the number of barrels sent to the United States. To summarize the juxtaposition, since NAFTA’s enactment, Canada increased its U.S. crude oil exports by 260 percent while Mexico, in the same period, only increased its U.S. crude oil exports by 15 percent.

Explanations for the disparity are multifarious. The factors contributing to this difference include; history, culture, geology, law, and technology. In addition to analyzing these factors, this article names certain current consequences and potential implications of NAFTA within the changing North American crude oil landscape. Within this context, Mexican President Enrique Peña Nieto’s proposed energy reform is introduced and discussed. A meaningful discourse on these topics begins with an introduction to ’’state-owned oil companies in Canada and Mexico.

 II. Petro-Canada

Petro-Canada was Canada’s state-owned oil company from 1975 to 2004.[14] Petro-Canada has been entirely privately-owned for a decade, has a short history, and is not particularly significant in the current North American crude oil landscape. With these caveats noted, an introduction to Petro-Canada serves as useful context, particularly when considering potential long-term implications of Peña Nieto’s proposed reform of the Mexican state-owned oil company, Pemex.

In 1973, world oil prices quadrupled due to the Arab oil embargo following the Yom Kippur War.[15] In response, the Canadian government turned its focus to energy security.[16] In addition to external motivation, the Canadian government faced two internal pressures to act: 1) foreign (e.g., U.S.) companies predominantly controlled its oil sector and; 2) the Canadian Arctic appeared increasingly attractive as large amounts of oil were recently discovered in Alaska.[17] In order to stave off rising oil prices, deliver secure energy to its citizens, and participate in the development of its own resources the Canadian government created Petro-Canada as a Crown Corporation in 1975.[18]

The company received $1.5 billion in start-up capital to implement broad powers for exploration; research and development; and refining and marketing of Canadian oil.[19] Petro-Canada received federal subsidies and enjoyed special exploration rights. The Canadian government also instituted a “made in Canada” price for oil which was substantially below world market prices.[20] Canadian oil exports were taxed to pay for the consumer and corporate subsidies.[21]

Petro-Canada quickly became popular as a symbol of Canadian nationalism.[22] However, in 1991, plummeting oil prices and new government leadership led the Canadian government to sell 30 percent of the state-owned company.[23] Over the next decade, the government slowly sold its ownership in installments. By 1995, Canadian government owned only 19 percent of the company and Petro-Canada was listed on the New York Stock Exchange.[24] In 2004, the Canadian government sold its remaining share of the company for $3.2 billion, completing the privatization of Petro-Canada.[25]

Petro-Canada’s sale yielded over $5.7 billion, and was the largest Canadian governmental privatization to date.[26] The Canadian Parliament’s website states: “The total gross proceeds . . . from the sale . . . are estimated to have exceeded taxpayers’ total investment by almost $750 million.”[27] The Canadian government views the sale of the company as a necessary action, characterizing Petro-Canada as having grown “inefficient, oversized and debt-ridden.”[28] But not all Canadians are happy to have seen Petro-Canada privatized. Some Canadians would have preferred to keep Petro-Canada under state control. This is because, in addition to the loss of secure jobs for Canadians, the profits from oil prices increases are accruing to foreign investors rather than the Canadian citizens.

Further to this analysis, is the idea that Petro-Canada’s privatization combined with the regulations of NAFTA act as the “one-two punch” for Canada’s sovereignty over its oil resources. There is some legitimacy to this analysis and, admittedly, national policies with consequences for sovereignty should be considered with the utmost scrutiny.

With these concessions noted, globalization and free trade are not passing trends. In fact, the adoption of free trade policies is gaining momentum around the globe. Globalization and free trade inherently have a homogenizing effect on national policies and frequently require renunciation of sovereignty. Further, homogenization and renunciation of sovereignty are part and parcel of globalization and free trade. The goal of free trade, and a requirement of globalization, is to provide the private sector with a uniform, predictable legal and investment climate free of individual nations’’ protectionist preferences. The energy industry, although an area of entrenched interests, is no exception.

While it is accurate to say that Canada forfeited sovereignty over its oil, this negative treatment is not the only valid analysis. Rather, Canada should be considered an early-adopter of free trade energy policy. It was on the front end of a trend. Early-adoption has its benefits. Canada has, and will continue to, accrue the benefits of its early-adoption.

Canada gained the “first-mover advantage” in free trade oil. A “first mover” has a “form of competitive advantage that a company [or in this case, country] earns by being the first to enter a specific market or industry.”[29] Central to the first-mover advantage is the concept that the “first-mover” usually accumulates enough market share, expertise, and customer loyalty to remain “on top” of the particular market segment.[30]

Specifically, as the “first-mover,” Canada increased its access to, and preference within, the United States crude oil market. Generally, early-adopters of free trade enjoy a “head start” over subsequent developing nations that will eventually gain access to the free trade sphere and increase competition.  As the “first-mover,” Canada enjoyed a decade-long “head start” before the next “class” of free trade countries entered the free trade marketplace.[31] Other countries have, and will continue to adopt free trade policies. As they do, these countries will also concede sovereignty in exchange for increased access to international trade and investment. Canada was the first country to complete this process.  As a result, it has an advantage.

 III.  Free Trade

 As of 2013, the United States has Free Trade Agreements (FTAs) with twenty countries.[32] The United States is currently negotiating the Trans-Pacific Partnership (TPP), a regional FTA, with Australia, Vietnam, and ten other Asia-Pacific countries. As recently as November 2013, the TPP negotiators unanimously reported “significant progress after six days of intensive meetings.”[33] NAFTA’s influence also spread south in the form of the Dominican Republic – Central America – United States Free Trade Agreement of 2004 (CAFTA-DR).[34]  With this introduction to Petro-Canada and free trade, the discussion turns to Mexico’s oil giant, Pemex.

 IV.  Pemex

Pemex is Mexico’s state-owned oil monopoly. Pemex played a significant role in the NAFTA negotiations and continues to play a large role in the North American crude oil landscape. This is because Pemex remains under state-control today and is among the largest oil producers in the world.  Pemex has a large workforce, is an icon in Mexican politics and culture, and is the target of Peña Nieto’s proposed Energy Reform Initiative (ERI). As such, Pemex requires a more complete introduction than Petro-Canada.

By 1911, British and American companies were extracting commercial quantities of crude oil in Mexico.[35] This attracted the attention of the Mexican government, which claimed all mineral rights for the state as part of its 1917 Constitution.[36]  Twenty years after the Constitution was signed, strife between Mexican oil workers and their foreign managers resulted in a protracted labor strike.[37] In 1938, Mexican President Lázaro Cárdenas, citing the 1917 Constitution, responded by expropriating all oil resources and facilities of foreign companies to create Pemex.[38]

Seventy-five years after its creation, Pemex has become a giant. It is one of the top eight oil producers in the world. In 2012, Pemex employed 151,000 Mexicans[39] and recorded $126.6 billion in revenue.[40] Pemex is the second largest company in Latin America, second only to Brazil’s Petrobras.[41] As a result of its cultural importance and the size of its union and revenue, Pemex wields significant clout as a Mexican employer, a political force, and a source of national pride.

As there is no Canadian or United States equivalent, it is difficult for the rest of North America to appreciate Pemex’s iconic status within Mexican culture and politics. In May 2013, the Center for Economic Research and Teaching published a survey entitled Mexico, the Americas and the World.[42] The survey consulted 535 business and governmental leaders, academics, media organizations, and 2,400 ordinary citizens.[43] The survey concluded that 65 percent of Mexicans were opposed to foreign involvement in Pemex.[44] The study provided the following commentary:

 . . . . . . . . .21st Century Mexico. . .  is not opposed to opening up to the world, with the exception of the oil sector. Mexicans show strong and growing feelings of pride, identification with and attachment to their nationality. . . . The high level of national pride is not opposed to cultural and economic openness. . . .  with the sole exception being the oil industry.[45]

 Despite its prowess and revenue, Pemex struggles to be profitable. In 2010, with revenues in excess of $120 billion, Pemex lost $3.8 billion.[46] There are a number of factors contributing to the company’s unprofitability. The most important factors are; organization, culture, and technology.

First, Pemex has an organizational problem. Despite the fact that Pemex spends only seven dollars to drill one barrel of crude, and that same barrel sells for around 100 dollars, Pemex lost 29 billion dollars from 2007 to 2012.[47] This is because Pemex was never treated as a profit-making endeavor.[48]  Some experts estimate that Pemex is over-staffed by as much as five-fold.[49] Structurally, the production side of the company turns a profit but the refining business does not. If Pemex were a private company accountable to shareholders, the company would not have been allowed to maintain these inefficiencies.

Second, Pemex has a tax problem. Again, Pemex is not viewed as a profit-making expedition. Pemex’s taxes compensate for the lack of taxes collected from the rest of the Mexican economy. As a result, Pemex has a disproportionate tax burden. In fact, Pemex’s tax revenue makes up about one third of Mexico’s federal budget.[50] Pemex currently hands over around 55 percent of its earnings to the federal government.[51] In 2012, Pemex paid a record $69.4 billion in taxes on $69.6 billion in pre-tax profits, effectively a 99.7 percent tax rate.[52]

In comparison, Venezuela’s state-owned oil company is taxed at 69 percent, Brazil’s Petrobras at 25 percent, and Royal Dutch Shell at 31 percent.[53] In the United States the largest taxpayer in 2012 was ExxonMobil. Exxon recorded $452.9 billion in revenue[54] and paid $31.05 billion in taxes.[55] While Exxon had three and half times the revenue of Pemex, the company had a 55 percent smaller tax burden, a $38.4 billion difference. As a result of its disproportionate tax burden, Pemex reinvests a much smaller amount in exploration activities than its peers.

Third, Pemex has a technology deficiency. Annual crude oil production has dropped each year since 2004.[56] In 2013, Pemex is estimated to produce just 2.54 MBPD.[57] This equates to a 34 percent decrease in total production in under a decade.  In September 2013, Pemex’s Deputy Director of Exploration, José Escalera, stated that; “insufficient investment in technology is the main reason for Mexico’s declining oil production.”[58] Most of the downturn can be attributed to a single field, Cantarell, which once produced 2.1 MBPD.[59] In 2012, Cantarell produced 0.40 MBPD,[60] an 81 percent decrease in just a few years.

Pemex has experienced significant growth in production and political influence since its creation. At times, leaders within the Mexican government have attempted to reform Pemex. The reforms face the challenge of addressing an unwieldy issue with entrenched and well-connected interests. In general, the reformers have not been up to the task. Previous reforms were blocked by other factions in the government, resisted during implementation, or simply inadequate from conception.[61] For this article, an introduction to the reforms of the twenty-first century is sufficient.

V. Previous Reforms Of Pemex

In 2000, Mexican President Vicente Fox promised to modernize Pemex.[62] Fox took a number of steps to curb the company’s influence. He introduced a revised tax code to reduce the government’s reliance on Pemex, but this reform was blocked in Congress.[63] Fox appointed an external board of businessman to oversee Pemex, however, Congress objected and the board was dissolved.[64] Fox’s government also criminally charged PRI (the opposition party) with diverting $120 million from Pemex to illegal campaign funds.[65]

Fox attempted to improve the company and reduce his government’s overdependence on the monopoly.[66] Ultimately, Fox was unsuccessful at substantive reform. However, Fox did bring attention to Pemex’s entrenchment and introduced the idea of tangible changes. Fox should be given additional credit as he pursued reform during the “boom years” of Pemex. Now that Pemex’s production has declined for eight consecutive years, the idea of reform is more palatable.

After Fox, came Felipe Calderone. The Calderone government successfully reformed Pemex with the 2008 Energy Reform. The 2008 Reform changed Pemex’s organizational structure to more closely mimic the organization of other oil giants worldwide.[67] The most important change was the four new independent, professional positions added to the board of directors.[68] The new board seats require private sector experience as a means to increase the lacking technical qualification of the board.[69] Prior to the reform, five of eleven board seats were reserved to the Pemex union.[70] Now the union holds five of fifteen total seats. Although the union’s influence on the board was reduced, reserving seats for the union is a feature unique to Pemex.[71]

In sum, Mexico has one of the most, if not the most, closed arrangements in the oil industry. It is largely accepted that the lack of outside involvement in Pemex has hindered innovation, technological advancement, and annual production. With this introduction to the North American state-owned oil companies, the discussion turns to the contrasting Canadian and Mexican energy regulatory schemes under NAFTA. The differences between the two countries’ energy outcomes are the largest variances in the treaty.

 VI. NAFTA

NAFTA was enacted to promote economic competitiveness and growth by easing the movement of goods and services between its member countries.[72]  NAFTA created the world’s largest free trade area, encompassing over 450 million people who produce 17 trillion dollars of goods and services.[73] NAFTA was largely an extension of the Canadian – United States Free Trade Agreement (CUSFTA) of 1988 and incorporated the terms of General Agreement on Tariffs and Trade.[74]

NAFTA took effect in 1994 and saw the last of its policies implemented by 2008. It removed most tariffs and restrictions on trade between the member nations.

NAFTA contemplated a wide range of topics including; agriculture, investments, textile, automobiles, telecommunications, intellectual property, and energy. Nineteen years after its enactment, economists are calling NAFTA a resounding success.[75] However, there is still some tension surrounding NAFTA within unions and consumer advocacy groups.[76] These groups argue that NAFTA has resulted in outsourcing and lower wages.[77] The following section introduces, NAFTA’s provisions governing energy and foreign investment.

 VII. Energy Under NAFTA

 Each NAFTA country relies significantly on the other member countries to buy and sell oil and gas. Canada and Mexico supply about one-third of the total United States oil imports.[78] Despite this natural interdependence, NAFTA’s Chapter Six, which regulates energy trade, perpetuated two distinct bilateralisms rather than creating a unified regulatory scheme. This is because Mexico negotiated significant exemptions to the energy and investment regulations.

‘Under Chapter Six, NAFTA imposes two broad constraints on energy law. The first constraint is Article 604 which prohibits export taxes on all energy goods, unless that same tax is placed upon energy goods for domestic use.[79] This provision bars the United States and Canada from adopting a two-price energy scheme to shield its citizens from volatile world oil prices – a tactic previously employed under Petro-Canada. The second constraint is Article 603 which imposes a blanket prohibition on all energy export controls with a limited “circumstances.”[80] “”Article 605 restricts Canada and the U.S. from imposing export controls on energy resources.[81] In other words, Canada and the United States must maintain a proportionate “supply of oil to be available for export purchase.”[82]

At this point, it is important to note that the Canadian government officially refutes this reading of the “Proportionality Clause.” Canada unilaterally issued a declaration interpreting Article 605 as not requiring Canada to export energy resources at “any given level or proportion.”[83]  The “Proportionality Clause” and its implications are discussed in greater depth in a later section of this article.

 VIII. Foreign Investors Under NAFTA

 The goal of NAFTA’s Chapter Eleven is to provide investors of member countries with a predictable legal climate.[84] The Chapter contains a variety of new rights and protections for investors and investments within NAFTA countries. Section A of the Chapter guarantees investors a minimum standard of treatment in the judicial system of a foreign country and other rights and prohibitions.[85]

Section B of Chapter Eleven “establishes a mechanism for the settlement of . . .  disputes that assures both equal treatment among investors of the Parties in accordance with the principle of international reciprocity and due process before an impartial tribunal.”[86] The ability to initiate a binding dispute resolution process against a member government if it allegedly fails to adhere to the Agreement’s regulations[87] is the most powerful and controversial right accorded to foreign investors in NAFTA.

The ability to initiate binding dispute resolution against a sovereign nation is controversial because when a foreign corporation is awarded damages in such a tribunal, the taxpayers of the losing nation “foot the bill.” This is a novel right and not unanimously welcomed. While this new right is applauded by the private sector, others submit that companies allowed to operate and invest in another country are enjoying a privilege and should be deferential to their host nation rather than having the ability to “twist the arm” of a foreign government in a closed-door arbitration.

 IX. The Canadian Energy Scheme Under NAFTA

 The “Proportionality Clause” in Article 605 requires that “the share of total supply available for export purchase may not fall below the average level in the previous 36 months.”[88] In other words, Canada may not reduce the proportion of the energy resources it exports. During the NAFTA negotiations, Canada had little choice when it came to The “Proportionality Clause” as it had previously agreed this term under CUSFTA. The “Proportionality Clause” was an important term for the United States to secure as its appetite for oil continued to rise and energy security was a popular priority.[89]

Hypothetically, if Canada raises energy production in an effort to meet its own shortages, Canada would be forced to increase exports in order to maintain the proportion. Likewise, if Canada decided to increase energy conservation, it would be unable to cut exports by a greater proportion than the reduction of its own domestic usage. To be clear, The Proportionalty Clause only governs government action to restrain export activity, not “market forces.” Conceivably, this means that the Canadian, or another, market could out-bid Americans for more than their proportion of Canadian energy resources.

As noted above, the Canadian government has refuted this interpretation of the “Proportionality Clause.” Canada unilaterally issued a declaration interpreting NAFTA Article 605 as not requiring Canadian energy crisis exports at “any given level or proportion.”[90] The Canadian Parliament’s website provides its interpretation of the clause:

 Contrary to some claims, NAFTA does not commit Canada to exporting a certain share of its energy supply to the United States regardless of Canadian needs . . .  the only significant limitation NAFTA places on Canada is that it prevents the Canadian government from implementing policies that interfere with the normal functioning of energy markets in North America. Provided they have the demand and can pay the price, Canadian consumers could conceivably buy 100% of all energy produced in the country without violating NAFTA.[91]

 With Canada’s official interpretation noted, it is peculiar that while Canada currently exports more than half of the total crude oil it produces to the U.S., it imports crude oil from abroad to meet its own increased domestic needs.[92] In 2007, while Canada produced 1,014 million barrels of crude oil and exported 658 million barrels to the United States, it also imported 313 million barrels.[93] This is because, while western Canada produces significant amounts of crude, eastern Canada does not. To the casual observer, western Canadian crude oil would be shipped to eastern Canada. The opportunities (i.e. regulations) of NAFTA leave eastern Canada with an increased reliance on imports.[94]

Prior to CUSFTA, a greater percentage of western Canadian crude oil was shipped to eastern Canada where it met a greater percentage of the crude oil demand in these provinces.[95] The energy export provisions of NAFTA resulted in the rapid growth in crude exports to the United States and a reduction of inter-provincial crude oil shipments.[96] In effect, CUSFTA and NAFTA redirected the western Canadian crude oil from flowing east to flowing south.[97] Eastern Canada has historically relied on crude oil imports to some degree, but tellingly, the increase in crude oil exports to the United States is accompanied by a similar increase in crude oil imports to eastern Canada.[98]

Under a non-Canadian interpretation of the “Proportionality Clause,” it is theoretically possible that Canada, one of the most resource-wealthy nations in the world, could experience oil shortages because under NAFTA the country is compelled to export. To make matters more interesting, Canada does not have significant strategic petroleum reserves, thus increasing the country’s energy vulnerability.[99]

 X. The Mexican Energy Regime Under NAFTA

As noted above, NAFTA’s Chapter Six perpetuated two separate bilateralisms. Mexico negotiated important exemptions to NAFTA’s energy and investment regulations. Chapter Six reiterated Canada’s CUSFTA commitments to a deregulated, integrated, free-market economy.[100] However, the laws governing energy trade south of the Rio Grande remain Mexican. The other NAFTA parties failed to loosen the Pemex monopoly over Mexican oil.[101]

Energy was non-negotiable for Mexico.[102] Chapter Six of NAFTA is titled “Energy and Basic Petrochemicals””, yet the opening sentence of the chapter is an unusual one: “The Parties confirm their full respect for their Constitutions.”[103] This was an appeasement directed at Mexico. It was a coded recognition of the Mexican government’s constitutional exclusivity to mineral rights.[104]

NAFTA Annex 602.3 explains “full respect” for the Mexican Constitution, and reserves a list of activities including; “exploration, exploitation and refining of crude oil . . . production of artificial gas and basic petrochemicals.”[105] No private investment or participation is allowed in these industries.[106] Some private participation was accepted by the Mexican government subject to its approval.“ . . .”[107]  With this introduction to the country-specific outcomes under NAFTA, the discussion can return to Pemex.

 XI. The Need To Reform Pemex

With all due respect and at the risk of seeming overbroad, Pemex is hindered by bureaucratic practices,[108] passé and approaching a decade of production declines.[109] Despite its plentiful crude oil supply, Mexico imports 80 percent of the petrochemicals used in the country.[110] Without reform bringing new investment and technology, Mexico will become a net importer of petrochemicals in the next decade.[111] This possibility should serve as an admonition to Mexican traditionalists clinging to the nationalistic fervor of the days of expropriation long ago. Peña Nieto’s proposed Energy Reform Initiative (ERI) is a unilateral action by the Mexican government for the benefit of Mexico. It is not required by NAFTA or any other international agreement. Assuming current trends continue, Pemex will decline in domestic and international influence, as well as production and revenue. The Reform is, first and foremost, in the best interest of Pemex, the Mexican government, and Mexican people. Some protectionists are resistant, but reform is required for the ultimate longevity of Pemex and union jobs. Without reform, Mexico will see a waning in tax revenue, exports, and well-paying jobs. Without reform, Pemex is unsustainable.

XII. North American Pressures To Reform Pemex 

The proposed Reform is a Mexican creation. However, it is important to note two North American forces increasing the pressure to reform Pemex. The first pressure is the expansion of hydraulic fracturing as a technique to extract previously out-of-reach oil. A second, lesser pressure is the proposed Keystone XL Pipeline.

 XIII. Hydraulic Fracturing

The recent boom in United States oil production has set the nation on a path to displace Russia as the world’s top oil-producing country by the end of 2014.[112] This idea was unheard of just a few years ago.[113] The production boom has been driven by the oil and gas industry’s use of hydraulic fracturing or “fracking” to reach previously inaccessible oil.[114] Fracking is a complicated technological feat. It involves injecting a chemical mixture deep into the ground at high pressure to crack rock and allow oil or gas to flow.[115]

The expansion of fracking has significantly aided the United States’ economic recovery.[116] It also reduces the ’United States’ dependency on oil imports.[117] Still, fracking is controversial. Many submit the technique contaminates ground water and can cause small earthquakes.[118] France and Bulgaria are the only countries with national bans on fracking.[119] However, there is regional resistance to the technique in Western Europe and the northeastern United States.[120] Still, many countries are eager to jump on the fracking bandwagon as a means to grow their economies and energy production.[121]

Fracking has opened significant new supplies of oil in the U.S. and changed the domestic market.[122] In California, fracking has led to what is being called a “new gold rush.”[123] The massive, untapped oil reserves of the Monterey Shale formation in Central California are estimated to contain over 15 billion barrels of oil.[124] This is five times as much as the Bakken Shale formation in North Dakota.[125] The California legislature responded with the state’s first piece of fracking legislation.[126]

The new California law requires monitoring of well water before and after companies drill and mandates that the names and concentrations of the chemicals used in the process are made public.[127] This is not the case on the federal level as chemicals used in fracking are exempt from water disclosure law following the 2005 legislation on the matter.[128]

While the public debate on fracking is far from over and legislative landscape attempts to keep up with the private sector, many countries and companies are betting big on fracking.[129] U.S. technological and geological expertise is required if Pemex wishes to frack safely and successfully.  On its face, fracking appears to be a feasible option to reverse Mexico’s production declines.

XIV. Keystone XL

The Keystone XL Pipeline is a proposed 1,179-mile, 36-inch-diameter crude oil pipeline beginning in Alberta and extending to Nebraska.[130] With a Presidential Permit in 2013, the Keystone XL Pipeline could be operational by 2015.[131] The pipeline will have capacity to transport 830,000 barrels of crude oil per day to Gulf Coast and Midwest refineries.[132] This would reduce U.S. dependence on oil from South America and the Middle East by up to 40 percent.[133]

The U.S. Department of State’s Draft Supplementary Environmental Impact Statement regarding Keystone XL concluded that the pipeline would have “no material impact” on carbon emissions.”[134] While Keystone has environmental opposition, it is widely speculated that the proposed pipeline is inevitable. The Keystone proposal does not include Mexico or Pemex. But it is not difficult to deduce why the pipeline increases the need for reform. An increase in Canadian oil sent to the United States would mean a reduction in the need for Mexican oil.             Some experts believe that after Keystone is built, the U.S. will see oil prices go up.[135] This argument rests on the premise that oil is traded on a global market. The counterargument is that building Keystone XL will create a surplus of oil on the Gulf Coast and allow for increased exports into the world market.[136] TransCanada, the company behind Keystone, has projected that the incremental supply of Canadian crude oil brought into the United States will put “downward pressure on [prices for] refined products.”[137] Regardless of whether the price for oil goes down for Americans or not, it can be reasonably surmised that if Keystone is built it will decrease the U.S. demand for Mexican oil.  With this introduction to the internal and external pressures to reform, the discussion turns to Peña Nieto’s proposed Energy Reform. Inevitably, this article, like any examining proposed legislation, may fall behind the most current iteration as the legislation will likely undergo a series of revisions until it is passed.  Noting this liability, this article analyzes Peña Nieto’s original Energy Reform proposal of August 2013.

XV. Peña Nieto’s Proposed Reform of Pemex

On August 12, 2013, Mexican President Peña Nieto presented his Energy Reform Initiative.[138] The Reform aims to improve Pemex’s transparency, increase competitiveness, and leverage the best practices and technology of private companies.[139]  For this discussion, the four most important elements of the proposed ERI are introduced. The aspects include: the permitting of profit-sharing contracts with private companies; a revised tax scheme; an organizational restructuring; and processes for improved transparency.[140] The first element of the ERI permits Pemex to sign profit sharing contracts with the private sector “where appropriate to the national interest.”[141] The goal is to leverage private companies’ best practices and technologies.[142] This reform will help Pemex “generate cheaper energy for all Mexican families” while the state maintains “absolute  control of the oil.” [143] The private contracts are profit-sharing only.[144] All ownership of the oil would remain Mexican.[145] Private industry commentators welcome the proposed change but believe the reform does not go far enough.[146] Private companies would prefer ownership rights over profit-sharing; presumably because they think they can turn a greater profit with the oil than Pemex can. This reform is the primary source of contention for the Mexican people as it would open Pemex to “foreign influence.[147]“ As previously noted, private involvement in Pemex is opposed by 65 percent of Mexican citizens.[148] The fear is that the private partners will eventually increase their influence. Conceptually, with continued liberalization, foreign companies could gain ownership rights over oil or undue influence within the Pemex organization.  This reform is feared to be the first “splinter” in the once-impenetrable shield for Mexican interests that Pemex shouldered for 75 years.  This reform also opens Pemex to increased NAFTA Chapter Eleven liability. This is discussed in a later section of this article.

The second element of the ERI proposes a new tax scheme for Pemex. The tax reform’s stated goal is to allow Pemex to be “fully competitive by international standards.”[149] As noted above, Pemex is taxed at a much higher rate than other private and state-owned oil companies.[150] The official rhetoric is that new tax regime changes the Mexican state’s posture from “a tax collector for short-term needs” to an “owner of the oil wealth with a long-term vision.”[151]

Currently, over half of Pemex’s tax bill comes as an annual fee based on oil and gas proceeds.[152] “The proposed reform would reduce [that] rate from 71.5 percent to 60 percent in 2015 and then to ten percent in succeeding years.”[153] The Reform introduces a new royalty scheme indexed to market fluctuations and shifts Pemex onto Mexico’s 30 percent corporate income tax rate.[154]

The reform’s stated aim is to reduce Pemex’s total tax burden. Yet, the details of the Reform do not leave many with confidence that this will be the result. In fact, former Pemex CEO, Jesus Reyes Heroles, said “in effect; “the plan was tantamount to maintaining the status quo under a different name. . . .’Actually, they don’t reduce the tax burden on Pemex,. . . [t]hey change the structure”.’”[155] Critics fear that Mexico’s fiscal reform will not collect as much tax revenue as estimated. This scenario could lead the Mexican government to take additional fees from Pemex to make up for shortfalls, an ability the government retains under Peña Nieto’s proposal.

The third element of the Reform reorganizes Pemex into two divisions: Exploration and Production, which focuses on oil and gas extraction; and Industrial Transformation, which includes the refining business. This element attempts to address Pemex’s structural inefficiencies.

The fourth element of the Reform sets to improve processes and conditions for transparency and accountability at Pemex. Pemex will adopt the “best practices for transparency to the Mexican people concerning projects, domestic procurement and shared utility contracts.”[156] This element attempts to address the pervasive perception that Pemex is plagued with inefficiency and corruption. On its surface, the proposed ERI addresses Pemex’s largest challenges of structure, taxation, and technology. While the proposed Reform is less extensive than private oil conglomerates would have preferred, the proposal has enjoyed a positive reception in the private sector.[157] Chevron stated that it welcomes any decision by Mexico that provides new investment possibilities.[158] Shell also expressed measured optimism stating that “Mexico could benefit from working with energy companies.”[159] This brings the discussion to the reception of the proposed ERI in Mexico.

XVI. Peña Nieto’s Reform’s Reception In Mexico

Peña Nieto was elected on a promise to put Mexico back in “the big leagues” of global emerging markets.[160] A position it lost in the past decade with the rise of China and Brazil.[161] In the “honeymoon” phase of his six-year term, Peña Nieto has taken advantage of his popularity and political capital.[162] Peña Nieto has already taken on entrenched interests and powerful unions through his EducationReform.[163] The education reforms were signed into law on February 25, 2013, despite opposition from the teacher’s union.[164] The teacher’s union is the second most powerful union in Mexico, second only to Pemex’s.[165]

Like the Education Reform, Peña Nieto’s the greatest resistance for Energy Reform does not come from Congress, but from working-class Mexican citizens. Peña Nieto must convince the Mexican people, that reform is best for Pemex and their country. Peña Nieto’s proposal is likely to get congressional approval but has already caused nationalistic demonstrations.[166] Andrés López Obrador, who lost the past two presidential elections, has called the Energy Reform “treason” and “pledge[d] to mobilize his supporters to stop it.”[167]

On Peña Nieto’s inauguration anniversary in December 2013, tens of thousands of people were reported to have taken to Mexico City’s streets to protest Peña Nieto’s Energy Reform.[168] The crowd made up of teachers, union members, and activists was joined by López Obrador who said “we are here to avoid a big robbery.”[169] Although some of the rank and file within the Pemex union oppose Peña Nieto’s proposal, he can ultimately rely on the union’s support.[170] This is because Peña Nieto’s PRI party and the Pemex union are historical political allies.[171] Perhaps more importantly, the competing PAN energy reform proposal, seeks to dissolve the Pemex Union.[172] This leaves Peña Nieto’s proposal as the most viable option for the Pemex union.

At bottom, political observers speculate that Peña Nieto’s proposed Energy Reform will receive Congressional approval as it likely has the two-thirds majority support required to pass. Enrique Kraze, a prominent Mexican historian, summarized the importance of the proposed Energy Reform stating: “If Mexico passes this bill, and we have peace in the streets, then the country will make an important leap forward[.]”[173]

 XVII. An Unanticipated Ally

Environmentalists should support Peña Nieto’s proposed Reform of Pemex. The process of extracting oil from tar sands produces higher rates of greenhouse gas emissions when compared to oil extracted from traditional oil fields.[174] These additional emissions are present before the oil traverses thousands of miles of sensitive terrain across the United States to refineries on the Gulf of Mexico.[175] The main risk of the current model, and Keystone future, is the possibility of oil spills along pipelines and railways.[176] A pipeline spill would pollute air and water supplies and harm migratory birds and other wildlife.[177]  “The [U.S.] Department of Interior has expressed [its] concerns that the [U.S.] State Department is ignoring the potential impact the proposed Keystone XL Pipeline could have on wildlife, waterways and national parks.”[178]

Together, this presents Mexican oil as a more environmentally-sensitive alternative to Canadian tar sands oil. With the infusion of private companies’ technology and expertise, Pemex should argue that its oil, which travels by tanker,[179] provides the U.S. and global markets with “cleaner” crude oil when compared to the Canadian alternative.

 XVIII. Peña Nieto’s Reform’s Intersections With NAFTA

 NAFTA’s Chapter Eleven permits a private investor of one NAFTA party to seek damages from another NAFTA party that allegedly violated a NAFTA provision. Peña Nieto’s proposed ERI creates a new area for NAFTA Chapter Eleven claims. Under the Reform, more private companies will be partnering more frequently and more significantly with Pemex. The greater number of partnerships and the more significant the partnerships, the greater stakes and likelihood of disputes. Previously, Pemex had enjoyed a bright line separation from NAFTA-style liabilities. The proposed Reform blurs this bright-lined barrier. How private firms and Pemex operate together in this newly created space will determine if the Mexican taxpayers could be “on the hook” paying damages to a foreign company for violations of NAFTA.

Pemex has over $120 billion in revenue. Even a few hundred million dollars lost in arbitration would only be nominally damaging to the company or the Mexican citizens, fiscally speaking. However, NAFTA arbitration would be culturally and politically harmful for Pemex and Peña Nieto. The idea of Mexican citizens paying for an alleged breach of NAFTA because Pemex partnered with a foreign company would be a difficult “pill” for many Mexicans to “swallow.” Another analysis of Peña Nieto’s proposal is that within the NAFTA context, the Energy Reform is the first “splinter” that could, in the long-term, lead to breaking of Pemex as a state-owned company. Private companies, through superior technology, experience and capital, could gain increased influence in Pemex or the Mexican government. If the private-public partnerships succeed, the private companies with a new foothold in Pemex could seek ownership of the oil produced. Then, once private ownership or additional influence is established, perhaps over the decades Pemex could eventually go the way of Petro-Canada; and be sold in pieces on the open market.

 XIX. Conclusion

Mexican economic liberalization has been a slow process and is far from complete.  It would be naïve for Mexico and other developing nations to ignore the macroeconomic implications of free trade. Under NAFTA, the value of Mexican exports to the United States “grew from $39.9 billion in 1993 to $210.8 billion in 2007, an increase of 437 percent.”[180] Over this period, the Mexican gross domestic product grew by 46 percent.[181] With an increasingly open environment for foreign trade and investment, and a large and growing domestic market, Mexico will grow increasingly attractive as a destination for foreign investment and trade.

Turning to the North American crude oil landscape, the United States and Canada have successfully created complementary systems for efficient integrated distribution of oil and gas between the two countries. While both the United States and Canada are ready and willing to include Mexico in an integrated market, Mexico has elected to take a more cautious approach. This approach has tradeoffs. Mexico’s hesitation in regards to energy integration was not unexpected given the cultural and political significance of Pemex. As a result of Mexico’s NAFTA reservations, its energy industry remains entirely in its own control. However, it can by surmised that this approach also played a large role in Pemex’s eight- year production decline.

It is easy to suggest that Mexico’s energy reservations are a major flaw in NAFTA. Yet, perhaps the NAFTA drafters did not expect the agreement to trigger immediate across-the-board changes to Mexican oil. Perhaps, taking a longer view, NAFTA should be seen as a “lever “to “pry open” the Mexican oil sector over time. It can be safely said that some loosening has been achieved. Peña Nieto’s proposed Reform is hailed as the most significant change to Pemex in its 75 year history. With all of this taken into account, NAFTA should be considered a success in the energy sector.  Indeed, the “Principles” of NAFTA Article 601 state the goal of enhancing the role of energy “through sustained and gradual liberalization.”[182] Perhaps, the liberalization of the Mexican oil industry is playing out just as, or even better than, the NAFTA drafters expected.

 


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    [51].       Id.

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    [60].       Id.

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    [63].       Id.

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    [65].       Id.

    [66].       Id.

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    [68].       Pemex Law, art. 8 (Mex.), available at http://www.ri.pemex.com/files/content/Law %20of%20Petroleos%20 Mexicanos%20_version%20ingles_.pdf.

    [69].       Id.

    [70].       Alejandro López-Velarde, The New Foreign Participation Rules in Each Sector of the Mexican Oil and Gas Industry: Are the Modifications Enough for Foreign Capitals?, 3 J. World Energy Law & Bus. 71, 76 (2010).

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   [76].     Id.

    [77].       Id.

    [78].       Schott & Hufbauer, supra note 14, at 395.

    [79].       North American Free Trade Agreement: Chapter Six, Foreign Trade Information System, http://www.sice.oas.org/trade/ nafta/chap-06.asp.

    [80].       Id.

    [81].       Id.

    [82].       Id.

    [83].       Ralph H. Folsom, NAFTA and Free Trade in the Americas in a Nutshell, 110, (4th ed. 2011).

    [84].       The North American Free Trade Agreement (NAFTA) – Chapter 11 – Investment, Foreign Affairs, Trade and Development Canada (Aug. 8, 2011), http://www. international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/nafta.aspx.

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    [86].       Id.

    [87].       NAFTA – Chapter 11 – Investment , supra note 86.

    [88].       NAFTA: Chapter Six, art. 605, supra note 81.

    [89].       The Bancroft Library, supra note 15.

    [90].       Folsom, supra note 85.

    [91].       Michael Holden, Canadian Oil Exports to the United States Under NAFTA, Library of Parliament (Nov. 16, 2006), http://www.parl.gc.ca/Content/LOP/research publications/prb0633-e.htm.

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    [93].       Larry Hughes, Eastern Canadian Crude Oil Supply and Its Implications for Regional Energy Security, 1, Dalhousie University (Nov. 16, 2009), available at http://lh.ece.dal.ca/enen/2009/ERG200911.pdf.

    [94].       Id.

    [95].       Id.

    [96].       Id.

    [97].       Id.

    [98].       Id.

    [99].       Geopolitical Monitor, Does Canada Need a Strategic Petroleum Reserve?, (Oct. 11,2012), http://oilprice.com/Energy/Energy-General/Does-Canada-Need-a-Strategic-Petroleum-Reserve.html.

  [100].       George Roland and Paul Mortensen, Toward a Continental Natural Gas Market: The Integration of Mexico, 36, Canadian Energy Research Institute (1995).

  [101].       Id. at 35.

  [102].       Folsom, supra note 85, at 106-07.

  [103].       Id. at 107; NAFTA: Chapter Six, supra note 81.

  [104].       Folsom, supra note 84.

  [105].       North American Free Trade Agreement, 32 I.L.M. 289, 366 (1993).

  [106].       Id.

  [107].       Id.

  [108].       Campbell, supra note 69.

  [109].       U.S. Energy Information Agency, supra note 8.

  [110].       Diana Villiers Negroponte, Mexico’s Most Critical Challenge: Energy Reform, The Brookings Institution, (Nov. 20, 2013), http://www.brookings.edu/research/ opinions/2013/11/20-questions-about-energy-reform-mexico-negroponte.

  [111].       Id.

  [112].       Paul Ausick, Can Fracking Keep U.S. No.1 Oil Producer?, 247wallst.com, (Nov. 13, 2013), http://247wallst.com/ energy-business/2013/11/13/fracking-and-technology-enough-to-keep-u-s-as-the-top-oil-producer.

  [113].       Id.

  [114].       Alanna Petroff, The World’s Next Fracking Hot Spots, Cnn.com, (Sept. 17, 2013), http://money.cnn.com/2013/ 09/17/news/global-fracking-ih.

  [115].       Id.

  [116].       Id.

  [117].       Id.

  [118].       Id.

  [119].       Worldwide Resistance to Hydraulic Fracturing, FracTracker.org, http://maps. fractracker.org/latest/?appid=d6c7667 4586e48068d874c7c 58feebbb (last visited  Mar. 28, 2014).

  [120].       Id.

  [121].       Petroff, supra note 116.

  [122].       Id.

  [123].       Steve Scauzillo, Oil Developers Want to Use Controversial Fracking Method to Tap California’s Oil Supply, San Gabriel Valley Tribune, Sept. 9, 2013, http:// www.sgvtribune.com/government-and-politics/20130910/oil-developers-want-to-use-controversial-fracking-method-to-tap-californias-oil-supply.

  [124].       Id.

  [125].       Claudia Assis, Oil firms seek breakthrough in big California shale formation, The Wall Street Journal Market Watch, (September 23, 2013, 3:11pm), http://blogs. marketwatch.com/energy-ticker/2013/09/23/oil-firms-seek-breakthrough-in-big-california-shale-formation/.

  [126].       Scauzillo, supra note 125.

  [127].       Id.

  [128].       David Allen Hines,  The “Halliburton Loophole”: Exemption of Hydraulic Fracturing Fluids from Regulation Under the Federal Safe Drinking Water Act, The Inst. for Energy & Environmental Research, (March 8, 2012), http://energy.wilkes.edu/ PDFFiles/Laws%20and%20Regulations/ Halliburton%20Loophole%20Essay%20Final.pdf.

  [129].       Patrice Hill, Siberian shale find fuels Russia’s fracking future, The Washington Times, February 18, 2014, http://www.washingtontimes.com/news/2014/feb/18/ siberian-shale-find-fuels-russias-fracking-future/.

  [130].       About the Project:Keystone XL Pipeline, TransCanada, http://keystone-xl.com/about/the-project (last visited Mar. 28, 2014).

  [131].       Id.

  [132].       Id.

  [133].       Id.

  [134].       IHS Study: Keystone XL Pipeline Would Have “No Material Impact” on U.S. Greenhouse Gas Emissions, IHS, (Aug. 8, 2013), http://press.ihs.com/press-release/energy-power-media/ihs-study-keystone-xl-pipeline-would-have-no-material-impact-us-gre.

  [135].       Dan Bacher, Report reveals Keystone XL Pipeline Would Raise U.S. Gas Prices, Dailykos.com, (July 28 2013), http://www.dailykos.com/story/2013/07/28/ 1227226/-Report-reveals-Keystone-XL-Pipeline-would-raise-U-S-gas-prices.

  [136].       Lorne Stockman, Keystone XL: The Key to Crude Exports – New Report, Oil Change International, (July 11, 2013), http://priceofoil.org/2013/07/11/keystone-xl-the-key-to-crude-exports-new-report.

  [137].       Mark Clayton, How Much Would Keystone Pipeline Help US Consumers, Christian Science Monitor, Mar. 9, 2012, http://www.nbcnews.com/id/46689167.

  [138].       The Presidential Energy Reform, World Law Group, (Aug. 23, 2013), http://www.theworldlawgroup.com/files/file/docs /LEGAL%20UPDATE_ The%20Presidential%20Energy%20Reform.pdf.

  [139].       Id.

  [140].       Claudia Herrara and José A. Román, Mexico: Five Fundamental Points of Peña Nieto’s Energy Reform (Pemex), La Jornada, (Aug. 13, 2013), http://mexicovoices. blogspot.com/2013/08/mexico-five-fundamental-points-of-pena.html#!/2013/08/ mexico-five-fundamental-points-of-pena.html.

  [141].       World Law Group, supra note 140.

  [142].       Id.

  [143].       The Objectives of the Energy Reform are to Improve the Mexican Family Economy, to Generate More Employments, and to Strengthen National Sovereignty: EPN, Official Site of the Presidency of the Republic, (August 13, 2013), http://en. presidencia.gob.mx/articles-press/the-objectives-of-the-energy-reform-are-to-improve-the-mexican-family-economy-to-generate-more-employment-and-to-strengthen-national-sovereignty-epn/.

  [144].       World Law Group, supra note 140.

  [145].       Id.; Herrara & Román, supra note 142.

  [146].       See generally, supra notes 133-134.

  [147].       Mexico, the Americas and the World, supra note 43 at 15.

  [148].       Id. at 23-24.

  [149].       Herrara & Román, supra note 142.

  [150].       Harrup, supra note 41.

  [151].       Herrara & Román, supra note 142.

  [152].       Garcia, supra note 54.

  [153].       Id.

  [154].       Id.

  [155].       Id.

  [156].       Herrera and Román, supra note 143.

  [157].       See Anna Andrianova, Mexican Energy Reform: Here are the Winners, CNBC.com, Aug. 16, 2013, http://www.cnbc.com/id/100965068.

  [158].       Laurence Iliff and Juan Montes, Mexican Outlines Energy-Overhaul Plan, Djnewsplus.com, (Aug. 12, 2013), http://www.djnewsplus.com/rssarticle/SB1376

                32547338952785.html.

  [159].       Don Knowland, Mexican Government Introduces Bill to Open up Oil Industry to Foreign Companies, Wsws.com, (Aug. 15, 2013), https://www.wsws.org/en/

                articles/2013/08/15/peme-a15.html?view=print.

  [160].       William Booth, Peña Nieto Sworn in as Mexico’s President, Vows Big Change, Washingtonpost.com, (Dec. 1. 2012), http://www.washingtonpost.com/the_ americas/ pena-nieto-sworn-in-as-mexicos-president-vows-big-change/2012 /12/01/4dcc72bc-3c00-11e2-9258-ac7c78d5c680_story.html.

  [161].       See generally Scheherazade Rehman, A New World Order?, U.S. News, (Oct. 15, 2012), http://www.usnews.com/opinion/ blogs/ world-report/2012/10/15/rise-of-china-brazil-point-to-creation-of-new-world-order.

  [162].       See Jorge Balan, Mexico’s Peña Nieto takes on teachers in bold education reform, World Review, (March 22, 2013), http://www.worldreview.info/content/mexico-s-pena-nieto-takes-teachers-bold-education-reform.

  [163].       Id.

  [164].       Id.

[165].       See Randal C. Archibold, Powerful Leader of Mexican Teachers’ Union Is Arrested, The New York Times, (Feb 26, 2013), http://www.nytimes.com/2013/02/27/ world/americas/leader-of-mexican-teachers-union-arrested.html?_r=0; See also David Agren, Move afoot in Mexico to rein in strong oil union, Monitor Global Outlook, Dec. 10, 2013, http://monitorglobaloutlook.com/mexico-might-rein-in-powerful-pemex-union/.

[166].       Laurence Iliff, Mexico Moves to Overhaul Oil Industry, The Wall Street Journal, (Aug. 12, 2013),    http://online.wsj.com/news/articles/SB1000142412788732408

              5304579008762332445236.

[167].       Id.

[168].       1000s protest Mexico president’s energy reforms, presstv.ir, (Dec. 2, 2013), http://www.presstv.ir/detail/2013/12/02/337751/1000s-protest-penas-energy-reforms.

[169].       Id.

[170].       Oscar Lopez, A Giant Falls: Pemex Must Partner up for the Benefit of Mexicans, 1 Cornell Int’l L.J. Online 22 (2013).

[171].       Id.

[172].     Id.

  [173].     Mexico Opens Oil Sector to Private Investment, Ending 75-Year State Monopoly, Economywatch.com, (Aug. 13, 2013), http://www.economywatch.com/in-the-news/mexico-opens-up-oil-sector-to-private-investment-ending-75-years-state-monopoly.13-08.html.

  [174].     Tar Sands and the Carbon Numbers, New York Times, (Aug. 21, 2011), http://

              www.nytimes.com/2011/08/22/opinion/tar-sands-and-the-carbon-numbers.html.

  [175].     Id.

  [176].     Id.

  [177].     Maria Sudekum Fisher, EPA: Keystone XL impact statement needs revising, journalstar.com, (Jul. 21, 2010), http://journalstar.com/news/state-and-regional/nebraska/epa-keystone-xl-impact-statement-needs-revising/article_8a2265d4-950c-11df-b70d-001cc4c03286.html.

  [178].     Katie Sheppard, Keystone XL Review Misses Key Environmental Impacts, Interior Department Claims, Huffingtonpost.com, (Aug. 20, 2013), http://www.huffingtonpost.com/2013/08/20/keystone-xl-environment-interior-department_n_3787402.html.

  [179].     Mexico: Crude Oil Exports, U.S. Energy Info. Administration, http://www.eia.gov/countries/cab.cfm?fips=MX, (last updated, Oct. 17, 2012).

  [180].       Heidi Sommer, The Economic Benefits of NAFTA to the United States and Mexico,

                National Center for Policy Analysis, (Jun. 16, 2008), http://www.ncpa.org/pub/ba619.

  [181].       Id.

  [182].       NAFTA; Chapter Six: Energy and Basic Petrochemicals, Foreign Trade Information System, http://www.sice.oas.org/trade/nafta/chap-06.asp.


 

 

PLACING LIMITATIONS ON THE GOVERNMENT’S INDEFINITE DETENTION OF IMMIGRATION DETAINEES AFTER RODRIGUEZ

 By Harvey Gee[1]

I. Introduction

II. Rodriguez v. Robbins

III. Post-Removal Cases

A. Jurisdiction

B. Removal Period

C. Due Process, Removal within Six Months, and “Good Faith”

IV. Race, Gender, And Prison Conditions

V. Conclusion

 I. Introduction

Kevin’s insistence that he is a U.S citizen, is a claim that he makes with every fiber of his emasculated being. Kevin has been physically and mentally wasting away since his arrival at the Detention Center. Kevin appears frail, unkempt, and unhealthy; he is very thin, weighing no more than 160 pounds (he has lost 20 pounds since entering into custody). His voice is weak.  He also has sunken cheeks and is missing several of his upper left teeth. Kevin barely exists in a cell measuring 7 steps by 5 steps. The cell, which has concrete walls, contains only a metal bed; a thin mattress covered by two sheets and a blanket; a toilet; and a sink. It is sealed off from the rest of the facility by a thick metal door with a small plexiglass window. There is no curtain for use when he relieves himself. The door has a slit for passing food trays and documents. Kevin has no contact with the prison population. He remains in his cell day and night, except to shower and for legal visits. He is allowed to shower just 3 times per week.

Kevin’s situation is not uncommon for a detainee held indefinitely by The U.S. Immigration and Customs Enforcement (“ICE”). This essay uses Kevin’s hypothetical case to explore the myriad of legal hurdles that a detainee must clear to prevent deportation. Part II analyzes the recent Ninth Circuit ruling in Rodriguez v. Robbins.[2]  Rodriguez was a landmark ruling limiting the government’s practice of locking up immigration detainees for months or sometimes years, without ever holding a bond hearing to determine whether they are legitimately being held in the first place.[3] Part III describes the post-removal process. Part IV discusses the racial and gender complexities implicated by the government’s practice of locking up immigration detainees, as well as the often harsh prison conditions that detainees are subjected to during their housing.

 II. Rodriguez v. Robbins

Rodriguez stands to benefit thousands of immigration detainees.[4] The appellees in the class-action lawsuit argued that prolonged mandatory detention imposed by the government, without any possibility of review, was unconstitutional.[5] On the other side, the government argued that it was statutorily authorized to require mandatory detention with no limit on the duration of imprisonment. [6]

The facts of the case were straightforward. The district judge granted a preliminary injunction requiring bond hearings before an immigration judge, and release of detainees who posed no risks to society and were not likely to flee. [7] These immigrants were subject to bond requirements and government supervision, including possible electronic monitoring, until an immigration judge determines their removal status. [8] ICE appealed the district court order, arguing that it would impose administrative burdens. The Ninth Circuit disagreed and found that hearings were necessary to ensure that immigrants, some of whom may eventually win the right to remain the United States, were not needlessly detained. [9]

Judge Wardlaw, writing for the panel, applied a balancing test.[10]  Citing Zadvydas v. Davis Judge Wardlaw asserted that freedom from physical restraint and imprisonment lies at the heart of the Due Process Clause. [11] Furthermore, the Judge cited to Denmore v. Kim [12] to support the proposition that “the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.” [13] Judge Wardlaw determined that detention must be time-limited. [14] Referring to Zadvydas again, she suggested that a time-limited approach fits more naturally into Ninth Circuit jurisprudence, which has suggested that after Denmore brief periods of mandatory immigration detention do not raise constitutional concerns,[15] but that prolonged detention lasting more than six months did. She stated that “[t]his reading also has the advantage of uniformity, which the Supreme Court has suggested is an important value in matters of statutory construction.”[16]

The Ninth Circuit applied the traditional factors in finding that a preliminary injunction was necessary: “(1) Appellees’ likelihood of success on the merits; (2) whether they have established a likelihood of irreparable harm; (3) the balance of the equities; and (4) where the public interest lies.” [17] It determined that mandatory detention of criminal aliens with no limit on the duration of imprisonment is unconstitutional.[18] A likelihood of irreparable harm was established because the preliminary injunction is necessary to ensure that individuals who are not flight risks, pose no danger, or otherwise cannot be removed by the government, will not be needlessly detained. [19] The Court determined that “[the government] cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns.”[20] Finally, the court rejected the government’s argument that conducting hundreds of hearings under the district court’s order would be prohibitively burdensome, and reasoned that any potential burden is consistent with compliance with the statute.[21] Accordingly, the public interest benefits from a preliminary injunction that avoids serious constitutional questions. [22] The court further concluded:

Contrary to the government’s rhetoric, this injunction will not flood our streets with fearsome criminals seeking to escape the force of American immigration law.  The district court’s narrowly tailored order provides individuals, whose right to be present in the United States remains to be decided, a hearing where a neutral decision-maker can determine whether they might deserve conditional release from the prison-like setting where they might otherwise languish for months or years on end.[23]

III. Post-Removal Cases

 Rodriguez will have broad ramifications to the immigration detention system, which has exploded in the past fifteen years. [24] The Obama Administration’s aggressive deportation policy almost assures that more detainees will be litigating for their freedom.[25]  The decision also creates questions.  Rodriguez involved a petitioner class seeking an initial bond hearing, but what about prolonged detention after a removal order has been issued?  Here, I suggest that a broader application of Rodriguez, and its principles, is possible to assist in the defense of deportations.  Since the difficulties in defending against deportation are best understood through the experiences of an immigrant detainee, I provide Kevin’s story which illustrates the dire reality facing a detainee in resisting the government’s efforts to deport him against his will.

Kevin Sullivan is thirty-seven years old. He was born in the U.S.Virgin Islands. His father was born in the U.S. Virgin Islands; his mother is from Charleston, South Carolina. When he was four years old, he and his father moved from the U.S. Virgin Islands to Charleston.  His mother passed away shortly after his birth. At some point, Kevin and his father moved from Charleston to Florence, South Carolina. Then, at age seven, he and his father, and his father’s girlfriend moved to Liberty City, Florida. Kevin was eleven years old when his father was killed by gunmen during a robbery at their apartment in Opa-Locka, Florida. When Kevin was twelve or thirteen years old, the family moved to New York City—the Bronx.

Kevin was convicted of distributing crack cocaine and sentenced in a criminal case in the U.S. District Court.[26] Upon conviction, Kevin was immediately placed on an immigration detainer and held in immigration custody at a detention center. But Kevin was never physically removed. The immigration judge ordered Kevin’s removal to Jamaica twenty-nine months ago, yet he remains in custody.

At the heart of Kevin’s case is his burning desire to be released immediately, but he is being held against his will indefinitely because the U.S. Department of Homeland Security (“DHS”) does not believe that he is Kevin — a U.S. citizen who was born in the Virgin Islands. Instead, DHS believes Kevin is a Jamaican citizen named “Richard,” and wants to deport Kevin to Jamaican. DHS argues that Kevin is the sole cause of the delay in effecting his removal to Jamaica because he is improperly contesting his removal order by refusing to cooperate with ICE in obtaining travel documents, and has yet to provide any evidence to support his claim of U.S. citizenship. The delay, however, is based on Kevin’s unwillingness to lie. He steadfastly refuses to sign any immigration form with a name other than his own.  Kevin will not perjure himself by claiming that his identity is Richard.

The reality is that Kevin will never be removed. The Jamaican government will not accept Kevin because it believes that he is not a Jamaican citizen. Kevin was interviewed at length, both in-person and telephonically by the Jamaican Consulate. The United States government claimed it continued to work with the Jamaican Consulate in trying to effectuate Kevin’s removal. The Jamaican Consulate, however, having carefully considered all of the evidence provided by Kevin and DHS, found that the evidence has not established that he is Richard, or a Jamaican citizen.

The Jamaican Consulate reiterated its position when it concluded in a letter—in response to DHS’s request for a travel document to be issued—that a travel document cannot be granted because Kevin does not qualify for one under Jamaica’s nationality, citizenship, regulations, and immigration laws. Thus, it is impossible for Kevin to be sent to Jamaica.

Kevin’s case depicts what can happen to a typical individual facing deportation and the immense pressure applied by the government in confining these individuals indefinitely while they await deportation. The stakes in deportation proceedings are great because individuals facing deportation can face a life sentence of banishment from their homes, families, jobs, and community in the United States. Furthermore, they can potentially be deported to countries that they have never been to, have no family in, and cannot speak the language of. [27]  Kevin is situated in a Kafkaesque situation wherein he stands to remain in custody in perpetuity because the government claims he is not a U.S. Citizen and he cannot show, to the government’s satisfaction at least, that he has citizenship.

A. Jurisdiction

 In deportation cases, the government often makes objections based on jurisdictional grounds—the detainee is challenging the immigration judge’s decision and the federal court lacks jurisdiction. But in Kevin’s case, he is only challenging the constitutionality of his extended deprivation of liberty rather than the merits of his removal order. As such, the district court has jurisdiction pursuant to 28 U.S.C. § 2241.[28] Kevin is not attempting to relitigate the findings of the immigration judge because he is not arguing the correctness or incorrectness of the immigration judge’s decision. Where there is no challenge of the removal order, the REAL ID Act, 8 U.S.C. § 1252 (“REAL ID Act”) does not eliminate habeas jurisdiction over challenges to detention that are independent of challenges to removal. [29] Notably, the Eleventh Circuit drew a distinction between challenges to a removal order and a constitutional challenge based on prolonged detention in Madu v. U.S. Attorney General,[30] by holding that the petitioner’s assertion that he was not subject to an order of removal was distinct from a challenge to the removal order.[31]

Madu is instructive here because of the factual similarities to Kevin’s case. The petitioner in Madu admitted deportability at his May 5, 1987 deportation hearing, and the immigration judge issued an order granting his request for voluntary departure, “in lieu of an order of deportation.” [32] When petitioner applied for a visa approximately sixteen years later, he was arrested on the basis of the putatively outstanding deportation order. [33] On May 17, 2004, petitioner filed a habeas petition pursuant to 28 U.S.C. § 2241, claiming that the Immigration and Naturalization Service (“INS”) was holding him in violation of his constitutional rights of substantive and procedural due process, and sought an order releasing him from detention, and enjoining the INS from deporting him. [34]

In its analysis, Eleventh Circuit referred to the REAL ID Act‘s language and its purpose, and determined its applicability to the case facts.[35] It opined that petitioner was bringing a constitutional challenge to his detention and impeding removal, and not seeking review of a removal order.[36] In doing so, Eleventh Circuit rejected the government’s arguments that: (1) the REAL ID Act deprives the district court of jurisdiction over the petitioner’s habeas petition, and (2) that the REAL ID Act barred any judicial review of the INS’s actions in the case.[37] It concluded that the petitioner was not challenging “‘a final administrative order of removal’ or seek[ing] review of a removal order.” [38] The Court held that substantive review of the underlying legal bases by the district court is still allowed. [39]

The Ninth Circuit similarly held that the REAL ID Act does not bar constitutional challenges.[40] In Singh v. Holder, the Ninth Circuit stated that “Congress has clarified, however, that the REAL ID Act was not intended to ‘preclude habeas review over challenges to detention that are independent of challenges to removal orders.’” [41] Accordingly, the general rule is that “[e]ven post [REAL ID Act], aliens may continue to bring collateral legal challenges to the Attorney General’s detention authority. . .through a petition for habeas corpus.” [42] As the Singh court concluded:

 [The determination of whether ]The REAL ID Act preempts habeas jurisdiction requires a case-by-case inquiry turning on a practical analysis, and that there are many circumstances in which an alien subject to an order of a removal can properly challenge his immigration detention in a habeas petition without unduly implicating the order of removal.[43]

 B. Removal Period

 Several statutes and regulations govern detention during the “removal period”—the time during which a person who has been ordered removed awaits removal. Pursuant to 8 U.S.C. § 1231(a)(1)(A), “when an alien is ordered removed, the Attorney General shall remove [him] from the United States within a period of 90 days,” and “[d]uring the removal period, the Attorney General shall detain the alien.”[44] The removal period begins (as relevant here) on “[t]he date the order of removal becomes administratively final.”[45] In this case, the immigration judge ordered mandatory detention for Kevin, and the removal period began when he ordered him removed to Jamaica. The removal period may not be extended, and the person must be released, unless he “fails or refuses to make timely application in good faith for travel or other documents necessary to [his] departure” or he “conspires or acts to prevent [his] removal.”[46]

Immigration and Naturalization Act 241 governs the detention, release, and removal of aliens ordered removed.[47] There are two different ways in which a person can be released following the initial removal period: (i) a traditional bond under 8 C.F.R § 241.4, and (ii) release under 8 C.F.R § 241.13, when it is established that removal from the United States is not “significantly likely to occur in the reasonably foreseeable future.”[48]

Under 8 C.F.R § 241.4, release is possible if DHS concludes that release “will not pose a danger to the community or to the safety of other persons or to property or a significant risk of flight pending such alien’s removal from the United States.”[49]  Release pursuant to 8 C.F.R § 241 typically follows a “custody review,” which must be conducted at the end of the initial removal period pursuant to DSH regulations.[50] DHS has the authority to release the person “without regard to the likelihood of the alien’s removal in the reasonably foreseeable future.”[51]

DHS has reviewed Kevin for release under 8 C.F.R. § 241.4 twice, each time denying it.  The ICE Field Office Director issued a denial notice, pursuant to 8 C.F.R § 241(g), indicating that Kevin’s custody status has been reviewed and it has been determined that he will not be released from ICE custody. Then the Director again denied Kevin’s request for release. The letters alleged that the removal period had been extended, indefinitely, for failure to comply with DHS’s efforts at removal.

Under 8 C.F.R § 241.13 (a), a person under a pending removal order, like Kevin, must be released if there is “good reason to believe there is no significant likelihood of removal to the country to which he [] was ordered removed . . . in the reasonably foreseeable future.”[52] Under 8 C.F.R § 241.13(a), DHS must make a determination, “during a six-month period, dating from the beginning of the removal period . . . whether there is a significant likelihood of removal in the reasonably foreseeable future.”[53]  In evaluating release, 8 C.F.R. § 241 states:

 The [DHS] shall consider all facts of the case including, but not limited to, the history of the alien’s efforts to comply with the order of removal, the history of the Service’s efforts to remove aliens to the country in question or to third countries, including the ongoing nature of the Service’s efforts to remove this alien and the alien’s assistance with those efforts, [and] the reasonably foreseeable results of those efforts.[54]

If DHS determines that removal is not significantly likely to occur in the reasonably foreseeable future, then the person must be released “[u]nless there are special circumstances justifying continued detention.”[55] Kevin has never been evaluated for release under 8 C.F.R § 241.13, which, though unstated, is presumably because of his alleged “failure to comply or cooperate.”[56]

 C. Due Process, Removal within Six Months, and “Good Faith”

The issue is whether Kevin, an American citizen, should be released from custody under Zadvydas v. Davis, when his removal is being delayed because he refused to sign documentation admitting that he is a citizen of a foreign country which denies his citizenship? [57]

Kevin has a liberty interest in not being arbitrarily or indefinitely detained. Long-standing Supreme Court precedent has extended Fifth Amendment due process protections to aliens within the United States, without distinguishing between those who are here legally or illegally, or between residents and visitors.[58]

It is certain that Kevin is not going to Jamaica. The Jamaican Consulate is not convinced that the man incarcerated at Detention Center is “Richard,” as the government claims, or a Jamaican citizen.  As discussed earlier, in reaching its judgment the Jamaican government considered all that DHS had to offer, and conducted interviews with Kevin. Because it is undisputed that Jamaica will not issue a travel document, it is also clear that Kevin’s removal to Jamaica, which requires a travel document, is not significantly likely to occur in the reasonably foreseeable future.

Under immigration regulations and the U.S. Supreme Court decision in Zadvydas, if Kevin has not been removed within 6 months, then he is presumptively entitled to release on supervision. In Zadvydas, the U.S. Supreme Court held that habeas corpus proceedings under 28 U.S.C. § 2241 “remain as a forum for statutory and constitutional challenges to post-removal-period detention,” and indefinite detention of a removable alien after a removal proceeding violates a due process right. [59] The Court further held that 8 U.S.C. § 1231(a)(6) does not permit the indefinite detention of two long-time resident aliens who committed crimes and as a consequence were ordered removed, where no country was willing to accept either of the individuals once they were ordered removed.[60] The Court concluded that the presumptive period during which an alien’s detention is reasonably necessary to effectuate removal is six months, and that he must be conditionally released after that time, if he can demonstrate that there is “no significant likelihood of removal in the reasonably foreseeable future.” [61]

Years after Zadvydas, Justice Stephen Breyer, who wrote the opinion, remarked that the ruling was motivated in part by the Court’s need to interpret the statutes at issue in a manner that avoided a finding that they were unconstitutional.[62] According to Justice Breyer, the Court’s pragmatic application of “interpretative principle” assisted the Congress and the Court to “maintaining a constitutional system of government, and forms part of an overall approach that promises a workable Constitution and helps to secure continued public acceptance of the Court’s decision.”[63]

In Clark v. Martinez, the Court extended its interpretation of 8 U.S.C. §1231(a)(6) to inadmissible aliens.[64]  The Court concluded that there was no reason why the period of time reasonably necessary to effect removal would be longer for an inadmissible alien, therefore the six-month presumptive detention period prescribed in Zadvydas should be applicable to inadmissible aliens. [65] Accordingly, under Clark and Zadvydas, when an alien shows that he has been held more than six months beyond the removal period and his removal is not reasonably foreseeable, an 8 U.S.C. §  § 2241 petition should be granted. [66]

In this case, the ostensible basis for continuing to detain Kevin is his alleged failure to comply or cooperate in “good faith” with DHS’s removal efforts.[67] DHS argues that Kevin is not a U.S. Citizen because he lacks any documentation to prove it, and since his assertion that he is a U.S. Citizen is not being made in “good faith.” The U.S. Supreme Court has held that “good faith” means honesty, “whether or not the claimed belief or misunderstanding is objectively reasonable.”[68]

To be sure, Kevin has no reason to dispute that “Richard “ is Jamaican. He has, however, steadfastly maintained his own identity and that he was born in the U.S. Virgin Islands. All persons born in the U.S. Virgin Islands on or after February 25, 1927, are U.S. Citizens.[69]  Therefore, the sole question is whether DHS can legally hold Kevin indefinitely because, according to DHS, Kevin has not been honest about his claim that he is a U.S. citizen?

There are no grounds to hold Kevin. Although Kevin has not been able to produce a “certified” U.S. Virgin Islands birth certificate does not mean that he is acting in bad faith by continuing to assert his U.S. Citizenship. While the government is correct about two things: (i) Kevin has not been able to produce a certified copy of his U.S. Virgin Islands birth certificate; and (ii) the U.S. Virgin Islands has not located a record for “Kevin” born exactly on July 2, 1971, these two facts, however, do not carry the weight that the government places on them.  Indeed, as both the applicable statutes and federal case law have recognized, a birth certificate—whether certified or not—is simply not necessary to establish U.S. Citizenship.

In Murphy v. INS, the Ninth Circuit reversed the Board of Immigration Appeal’s (hereinafter, “BIA”) finding a respondent in that case was deportable.[70]  The government claimed that he was from Jamaica; the respondent maintained that he was born in the U.S. Virgin Islands.[71] The respondent “testified that he was born by home delivery in the Virgin Islands and that he left when he was five to come to New York.”[72]  “[H]e did not remember the names of the people who cared for him between the ages of six and twelve.”[73] “At one point he indicated that their name was Williams, but he was unsure; later, he declined to insist on any name because he could not remember.”[74]  Also, “When he was nine or ten, these people informed him that his father and mother had died, his mother having succumbed to illness when [the respondent] was six, resulting from a home delivery.”[75]

Further, the respondent “had never claimed to be from Jamaica and did not associate with Jamaicans.”[76] “After further questioning [at the immigration hearing], the [Immigration Judge] told [the respondent] that he needed to obtain proof of his citizenship by birth certificate or parents’ or friends’ testimony.”[77] The respondent was unable to do so.[78] The government’s only admissible evidence consisted of “two certifications from the Virgin Islands, stating that there was no birth certificate for [the respondent] on either December 15, 1956 or February 12, 1959.”[79] On this basis, the Immigration Judge found that the respondent was deportable, and the BIA affirmed.

In reversing, the Ninth Circuit found that BIA should not have given “the lack of a Virgin Islands birth certificate significant weight,” particularly when the respondent had “provided a reasonable explanation for that absence.”[80] In addition, BIA improperly discredited the respondent’s testimony merely because it was uncorroborated.[81] The Ninth Circuit opined that it was unreasonable for BIA to insist on documentary evidence regarding frequency of home births and lack of birth registrations, “given an illiterate defendant who was able to engage pro bono counsel only a few weeks before the hearing date.”[82] The Court also found that BIA’s insistence on testimony from friends and family was also unreasonable because the respondent lived on the streets since he was 12 years-old.[83] The Court was not persuaded by the government’s assertion that it was odd for the respondent to know that he was born at home.  Instead, the Court found that, “It would not be unusual for a nine-year-old boy in [the respondent’s] childhood situation to ask about his family and his birth; in fact, it would be highly unusual for a child not to ask those questions and not to remember at least the gist of the responses.”[84]

DHS, in this case, has the imposed the same unreasonable burdens on Kevin as were imposed on the Petitioner in Murphy. Therefore, like the Ninth Circuit, the Eleventh Circuit should reject any notion that a mere inability to produce a “certified” birth certificate or other documentary corroboration automatically means the Kevin is acting in bad faith.

Furthermore, the applicable U.S. Citizenship statute itself provides that in some cases, birth certificates are not only not required, but in some cases are presumed not to exist in the first place:

 The following shall be nationals and citizens of the United States at birth:

*   *   *

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.[85]

 If someone has a birth certificate, of course, his parentage will not be “unknown.” Therefore, 8 U.S.C. § 1401(f), and the Ninth Circuit’s reasoning in Murphy decision, directly contemplates recognizing U.S. Citizenship for someone like Kevin who is unable to produce a birth certificate—whether “certified” or otherwise.

Based on these authorities, and in the context of Kevin’s extensive testimony about his claim to U.S. Citizenship, his inability to produce a “certified” U.S. Virgin Islands birth certificate is not dispositive. Therefore, the government’s argument to the contrary should be rejected.

DHS has acknowledged that Kevin had made numerous United States Citizen claims. It criticized him, however, for not providing valid documentation to support those claims. But the government’s criticism should be rejected, however, because Kevin did provide DHS with valid documentation to support his claim, which the government failed to investigate.

Kevin presented several identification cards—each of which bore his true name. First, he presented a New York driver’s license. A copy of the driver’s license was produced to counsel in discovery with his Alien File. In describing the identification requirements for obtaining a New York driver’s license, the court in People v. Quiroga-Puma observed that it is impossible to get a driver’s license without also having legal immigration status:

 The DMV lists forty-two (42) documents, each with a corresponding number of points; an applicant must provide six (6) points worth of identification in order to be eligible for a driver’s license. The majority of these documents are primary proof of citizenship; many of them are secondary documents, which require proof of citizenship to obtain them. Without the primary proofs of citizenship presented in either a major document (such as a passport) or secondary document (such as a firearms license), it is mathematically impossible to present the proper documentation in order to obtain an operator’s license for a motor vehicle in the State of New York.[86]

 Remarkably, DHS failed to even mention this evidence, particularly since the New York Department of Motor Vehicles has since confirmed that the driver’s license is authentic, and was valid when given to Agent Smith (it expired on September 30, 2011). Second, Kevin gave the arresting officer a New York State Benefit Identification Card. This document was also in Kevin’s Alien File. But DHS also ignored the benefit card. The validity of both documents is readily obtainable, and either document would have conclusively established Kevin’s identity.  Both documents display his picture and signature. DHS’s failure to address this important evidence means that its decision was not supported by substantial evidence. [87] On this basis alone, DHS’s conclusions should be rejected.

In this case, Kevin has done everything that the U.S. government asked him to do. First, Kevin responded to discovery. Second, he was deposed for a half a day. Third, he provided extensive proof of his identity. Fourth, he was interviewed by the Jamaican consulate several times. Fifth, he was interrogated by deportation officers, and he answered all of their questions.  There is nothing the U.S. government has asked him to do that he has not done. Put simply, Kevin has done everything that he can do to comply with the order of removal—yet he remains in custody. Under these circumstances, Kevin, by acting in good faith, has met his burden under Zadvydas, and “there is no significant likelihood of removal in the reasonably foreseeable future.” [88] Therefore, having cooperated and complied with DHS’s removal efforts, Kevin should be promptly released from custody. Finally, the law entitles Kevin to release.[89] Yet Kevin remains in custody 29 months after the final removal order was issued, and the prolonged detention is having a deleterious effect on his health. [90]

Incredibly, facing a mountain of evidence showing that Jamaica will not issue a travel document to Kevin, and that Kevin’s removal to Jamaica, which requires a travel document, is not significantly likely to occur in the reasonably foreseeable future, the government persists in its claim that “Petitioner’s removal is likely in the foreseeable future.”  This is simply not true.

This case is similar to Mitchell v. Gonzales,[91] where the district court granted petitioner’s petition for writ of habeas corpus, and ordered the government to immediately release petitioner upon conditions of supervision. [92] The petitioner in Mitchell did not challenge the final order of removal, but sought release from an indefinite period of custody.[93] The petitioner contended that that his native country, Jamaica, refused to issue travel documents to him because Jamaica has no record of him. [94] Petitioner alleged that he was being held beyond the presumptively reasonable period of detention as established by Zadvydas, and asserted that he was entitled to release. Petitioner was in custody for over three years (16 months passed after his removal order became final). [95]

ICE believed that the petitioner was not telling the truth because he was providing identity information to the Jamaican Consulate that differed from his immigration file. ICE also learned that the Consulate will not issue a document until it obtained a birth certificate, and requested assistance from the American Embassy in Jamaican to obtain a “correct birth certificate.” [96] ICE argued that the petitioner failed to cooperate by not assisting its efforts to acquire travel documents. [97]

The court in Mitchell concluded that, because petitioner already provided school records, a driver’s license, and his social security card, to show his identity, as well as a sworn statement that Jamaican official “told him that Jamaica has no record of him and therefore cannot issue him travel documents[.] that the petitioner made a prima facie showing of his identity.” The court went on to say “[i]t is unfair to claim that Petitioner is not assisting his removal without showing precisely what more is needed and demonstrating either that Petitioner has refused to provide the information or how he has been misleading.” [98] In the court’s view:

 Considering that Petitioner has already been detained more than twice as long as the presumptively reasonable removal period, it does not appear that this problem can be solved in the reasonably foreseeable future.  Indeed, Respondents have been requesting travel documents since August 3, 2005 . . . Respondents have not supported their contention that Petitioner has hindered his removal.  Moreover, Respondents have not come forward with any evidence that there is a significant likelihood of Petitioner’s removal in the reasonably foreseeable future.  Petitioner does not appear to be able to provide any further identification and Jamaican officials are also unable to verify Petitioner’s birth record.  Thus, Petition has shown that his removal is not reasonably foreseeable and he is entitled to release from detention. [99]

Accordingly, the court determined that petitioner met his burden under Zadvydas, and further concluded that, while the government argued that the removal had been delayed by petitioner’s failure to cooperate, it never truly responded on the merits.[100]

If the court applies the same factors applied in Rodriguez, it would find that the mandatory detention of Kevin is unconstitutional. [101]A likelihood of irreparable harm is established and the preliminary injunction is necessary because Kevin is not a flight risk opposed danger, and is being needlessly detained. [102] The government avoids the merits of Kevin’s claim, by obfuscating the real issues by attempting to dismiss Kevin’s earnest attempts to establish his identity. Kevin provided the government with a valid New York Department of Motor Vehicles driver’s license and copies of pictures of him taken at the State Department of New York Department of Motor Vehicles in 1994 and in 1998. Still, incredibly, the government fails to directly challenge the validity of the New York State documentation by questioning the authenticity of the documents themselves. Instead, it merely speculate that it can be inferred that the same suspect birth certificate at issue here was likely used to obtain those documents. To the contrary, it should be inferred that Kevin presented valid and authentic proofs of identity such as a birth certificate, and proof of U.S. Citizenship and New York State residence, to secure these documents. Subsequently, a court should determine, as the Ninth Circuit did in Rodriguez, that the government cannot be harmed by the granting of the injunction that ends an unconstitutional detention. Moreover, the government cannot claim that releasing Kevin would be prohibitively burdensome because he is just one person asking for a single hearing for immediate release or a post-deportation bond hearing. The government claims that Kevin has provided no evidence to corroborate his testimony about moving to the United States when he was four-years old. It is simply objectively unreasonable to expect young children to retain documents reflecting their daily activities at such a young age. Kevin’s release would serve the public interest in protecting an individual’s constitutional rights. In short, none of the irrelevant matters that the government has brought to the Court’s attention shows that Kevin’s removal is significantly likely in the reasonably foreseeable future. Therefore, just as the Ninth Circuit determined in Rodriguez, an appropriate remedy in Kevin’s case would be to grant a preliminary injunction.

IV. Race, Gender, And Prison Conditions

 On a broader level, the government’s practice of locking up immigration detainees implicates race and gender complexities. Some scholars observe that immigration is a racialized issue. Professor Kevin Johnson argues that “[r]acial exclusions have evolved into new and different devices that have racial disparate effects on prospective immigrants to the United States . . . race remains central to the operation and enforcement of U.S. immigration law.[103] In addition, the racial diversity of the immigrant stream demonstrates that immigration detention has never been a white/brown issue even through mainstream America may tend think of the deportation as only affecting Latino/a immigrants.[104] “African and Haitians seeking to come to the United States, for example, historically have been subject to particularly harsh treatment by the U.S. government.” [105]

Asians are also targets of aggressive immigration policies such as the Illegal Immigration Reform and Immigrant Responsibility Act and the Anti-Terrorism and Effective Death Penalty Act which make it mandatory for immigrants with lawful permanent resident status to be removed from the United States because of a prison criminal conviction. [106] Southeast Asian refugee youth from lower economic backgrounds are especially vulnerable, even though they grew up in the United States.[107]

Taken as a whole, this intersection of immigration and incarceration systems is separating African American and immigrant families alike. Much has been written about the phenomenon of mass incarceration. First, Professor Michelle Alexander characterizes mass incarceration as a new racial caste system in The New Jim Crow: Mass Incarceration in the Age of Colorblindness.[108] She argues that the criminal justice system crated and perpetuated a hierarchy in the United States.[109] The result is that “[t]he Supreme Court has now closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing.”[110]

Alexander further argues that addressing the disparity of racial bias in crack sentencing “is just the top of the iceberg” because the caste system depends on the prison label affixed to felons, and not the time they served in prison. [111]  The felon label precludes a felon from employment and access to housing, as well as enjoying the privileges of citizens such as voting and jury service. [112] “Those labeled felons will contained to cycle in and out of prison subject to perpetual surveillance by the police, [] unable to integrate into the mainstream and economy.” [113]

Second, in No Equal Justice: Race and Class in the American Criminal Justice System, Professor David Cole suggests that the Criminal Justice System is based on the principle of equality before the law, and the administration of criminal law is predicated on “exploitation of inequality.” [114] Cole argues that:

 Our criminal justices system affirmatively depends on inequality. Absent race and class disparities, the privileged among us could not enjoy as much constitutional protection or our liberties as we do; and without those disparities, we could not afford the policy of mass incarceration that we have pursued over the past decades. [115]

He professes that this creates two systems of criminal justice: one for the privileged, and another for the less privileged, which is prominently showcased in crack cocaine sentencing. [116]  According to Cole, “African Americans comprise more than 90 percent of those found guilty of crack cocaine crimes, but only 20 percent of those found guilty of powder cocaine crimes.” [117]  He explains that “it is unimaginable that our country’s heavy reliance on incarceration would be tolerated if the Black/White incarceration rates were reversed, and whites were incarcerated at seven times that Blacks are.”[118] Cole further criticizes the crack sentencing disparity in asserting that “crack cocaine is nothing more than powder cooked up with baking soda . . . yet the crack/powder distinction has ensured that significant racial inequalities remain.” [119] These disparities caused by harsh tough-on-crime attitudes motivating the war on drugs are tolerated, Cole says, because it disproportionate minority and not whites.[120]  Cole implores the courts, legislatures, and police departments to eliminated or reduce the double standards.[121]

Alexander and Cole are joined by other scholars also note the problems inherent in drug sentencing.  Professor Paul Butler partly attributes the difficulty of addressing racial mass incarceration as a result of the Supreme Court’s equal protection jurisprudence, which requires discriminatory intent, rather than effect.[122] Furthermore, Butler argues the Supreme Court’s criminal procedural jurisprudence pays deference to law enforcement discretion, effectively nullifying civil rights litigation on these issues.[123]

Likewise, Professor Ian Haney Lopez critiques claims that massive racial disparities in criminal sentencing are “not racism.” [124] To the contrary, he argues that “Colorblindness operates hand-in-hand with the criminal [justice] system on a broader cultural level. . .[t]he insistence that race plays no role unless openly involved ultimately facilitated the emergence of crime as a proxy language for race.” [125] These comments highlight how incarceration and criminal law has increasingly merged with the experiences of immigration.[126] As one commentator notes, “Mass deportation stigmatizes all Latinos in the same way that mass incarceration stigmatizes all African Americans.” [127]

Beyond race, there is also a growing amount of women who are placed on immigration detainers due largely to the fact that immigrant women make up a growing share of the low-wage immigrant workforce and have been prosecuted of drug offices and sentenced under harsh federal mandatory sentences. [128] The advent of more women detainees coincided with an increase in sexual abuse and assault in immigration detention facilities reflected in reports, documentaries and complaints of ongoing basis while detainees are in ICE custody. [129]

Fortunately, these issues facing detainees are gaining attention. The American Civil Liberties Union Foundation (ACLU) of Georgia, upon completion of a study conducted beyond three years, issued a report on conditions of detention for immigrants in the state and Georgia which concluded that those conditions violated detainees’ constitutional and human rights, in addition to ICE standards.[130] The ACLU cited to due process concerns where it found that detainees in four facilities reported instances where ICE officers, deportation officers, and immigration judges attempted to coerced detainees to sign stipulated removal orders; and non-citizens were detained in excess of a presumptively reasonable time; and situations where non-English speaking detainees could not effectively communicate with ICE officers. [131] With regards to due process concerns at the facility, according to some detainees interviewed, there was inadequate information about pro bono legal services, inadequate conditions for attorney visits, and delays to access to the law library. [132] Detainees also complained about extreme temperatures in their cells, overcrowding, and held concerns about hygiene and food.[133]

 V. Conclusion

 In the end, limitations must be placed on the duration of imprisonment.  Consistent with the pragmatic approach advocated by Justice Breyer in interpreting the Constitution to promote workable government without compromising constitutional principles, and illustrated in practice in Zadvydas, [134]  if other circuits apply the rationale of Rodriguez to post-detention hearing cases, detainees like Kevin would be afforded due process of law and courts can avoid paying undue deference to the ICE deportation process.

 


      [1].       Attorney, Federal Defenders of the Middle District of Georgia, Inc. The views expressed herein are not necessarily attributed to any past, present, or future employers.   The author thanks Mathew Graham and the other editors of the Gonzaga Journal of Immigration Law for their hard work and assistance in preparing this essay, and for their invitation to participate in the Journal’s annual spring symposium.

      [2].       Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013).

      [3].       See generally id.

      [4].       Id. at 1127.

      [5].       Id. at 1133.

      [6].       Id.

      [7].       Id.

      [8].       Id. at 1133.

      [9].       Id.

    [10].       See id.

    [11].       Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

    [12].       Rodriguez, 715 F.3d at 1143 (quoting Demore v. Kim, 538 U.S. 510, 526 (2003)).

    [13].       Rodriguez, 715 F.3d at 1134.

    [14].       Id. at 1144.

    [15].       Id.

    [16].       Id.

    [17].       Id. at 1133.

    [18].       Id. at 1137.

    [19].       Id. at 1145.

    [20].       Id.

    [21].       Id. at 1145-46.

    [22].       Id. at 1146.

    [23].       Id. at 1146.

    [24].       See Maunica Sthanki, Deconstructing Detention: Structural Impunity and the Need for an Intervention, 65 Rutgers L. Rev. 447, 452-56 (2013).

    [25].       See Bill Ong Hing, Reason Over Hysteria, 12 Loy. J. Pub. Int. L. 275, 293-94 (2011) (reporting that “The Obama administration is deporting record numbers of undocumented immigrants, and ICE expected to remove about 40,000 individuals in the 2010 fiscal year”).

    [26].       Kevin pleaded guilty to Count One of a Two-Count Indictment. Count One charged that Kevin did possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Kevin’s case is a hypothetical based in part on Mitchell v. Gonzales, No. 4:06cv333-WS, 2007 WL 121348, at *1-3 (N.D.Fla. Jan. 12, 2007).

    [27].       See also Peter L. Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings, 43 Harv. C. R. – C. L. L. Rev. 289. 295 passim (2008).

    [28].       See Zadvydas, 533 U.S. at 699-700 (holding that “§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention”).

    [29].       See Singh v. Holder, 638 F.3d 1196, 1202 (“Although § 1226(e) restricts jurisdiction in the federal courts in some respects, it does not limit habeas jurisdiction over constitutional claims or questions of law.”).

    [30].       Madu v. U.S. Attorney General, 470 F.3d 1362 (11th Cir. 2006).

    [31].       Id. at 1368. 

    [32].       Id. at 1364. 

    [33].       Id

    [34].       Id. at 1365. 

    [35].       Id. at 1366.

    [36].       Id.

    [37].       Id. at 1367-68.

    [38].       Id. at 1367. 

    [39].       Id. at 1368.

    [40].       Singh, 638 F.3d at 1202.

    [41].       Id. at 1211 (citing to H.R. Rep. No. 109-74, at 175 (2005)).

    [42].       Id. at 1211 (alterations in original) (citing Casas-Castrillon v. Dept. of Homeland Security, 535 F.3d 942, 946 (9th Cir. 2008)). 

    [43].       Singh, 638 F.3d at 1211; see also, Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th Cir. 2008) (holding that district court had habeas jurisdiction to review immigration detention challenge based on detainee’s position that he was a U.S. citizen, and because 8 U.S.C. § 1226(a) only applied to aliens, his detainment was not lawful.); Elashi v. Sabol, 714 F. Supp. 2d 502, 503-04, 507 (M.D. Pa. 2010) (granting habeas corpus petition in case where petitioner challenged his continued detention pending removal, but not the final order of removal).

    [44].       8 U.S.C. § 1231(a)(2) (2013).

    [45].       8 U.S.C. § 1231 (a)(1)(B)(i) (2013); see also 8 C.F.R. § 241.4(g)(1)(ii)(2013).

    [46].       8 U.S.C. § 1231(a)(1)(C); see also 8 C.F.R. § 241.4(g)(1)(ii).

    [47].       See 8 C.F.R. § 241.1.

    [48].       See 8 C.F.R. § 241.4; see also 8 C.F.R. § 241.13.

    [49].       8 C.F.R. § 241.4(d)(1).

    [50].       See 8 C.F.R. § 241.4(k)(1)(i).

    [51].       8 C.F.R. § 241.13(b)(1).

    [52].       8 C.F.R. § 241.13(a).

    [53].       8 C.F.R. § 241.13(b)(2)(ii).

    [54].       8 C.F.R. § 241.13(f).

    [55].       8 C.F.R. § 241.13(g)(1); see also 8 C.F.R. § 241.14 regarding “special circumstances.”

    [56].       See 8 C.F.R. § 241.13(e)(2).

    [57].       See generally Zadvydas, 533 U.S. at 690-93.

    [58].       See e.g., Wong Wing v. United States, 163 U.S. 228, 238 (1896) (holding that “all persons within the territory of the United States are entitled to the protection guaranteed by [the fifth and sixth] amendments”); Matthews v. Diaz, 426 U.S. 67, 77 (1976) (“The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of [the aliens within the jurisdiction of the United States] from deprivation of life, liberty, or property without due process of law”); Plyer v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”).

    [59].       See Zadvydas, 533 U.S. at 699-90.

    [60].       Id. at 684-86. 

    [61].       Id. at 701.

    [62].       See Stephen Breyer, Making Our Democracy Work: A Judge’s View, 102-03 (2010).

    [63].       Id. at 105.

    [64].       Clark v. Martinez, 543 U.S. 371 (2005).

    [65].       Id. at 386. 

    [66].       See Id. at 386-387; see also Benitez v. Wallis, 402 F.3d 1133, 1135 (11th Cir. 2005) ( holding “Clark effectively ends this case. There is no contention that conditions in Cuba have changed so that Benitez’s removal to Cuba is reasonably foreseeable. Therefore, until this Country’s relationship with Cuba changes so that removal is reason- ably foreseeable or Congress amends 8 U.S.C. § 1231(a)(6) to distinguish between resident aliens and inadmissible aliens, Clark dictates that Benitez is entitled to be released and paroled into the country.”).

    [67].       8 C.F.R. § 241.4(g)(1)(ii).

    [68].       Cheek v. United States, 498 U.S. 192, 202 (1991).

    [69].       8 U.S.C. § 1406 (2012); Great Cruz Bay, Inc., St. John, Virgin Islands v. Wheatley, 495 F.2d 301, 306, fn.7 (3d Cir. 1974).

    [70].       Murphy v. INS, 54 F.3d 605, 612 (9th Cir. 1995).

    [71].       Id. at 607.

    [72].       Id.

    [73].       Id.

    [74].       Id.

    [75].       Id.

    [76].       Id.

    [77].       Id.

    [78].       Id.

    [79].       Id.

    [80].       Id. at 610.

    [81].       Murphy, 54 F.3d at 611.

    [82].       Id. at 612.

    [83].       Id.

    [84].       Id.

    [85].       8 U.S.C. § 1401(f).

    [86].       People v. Quiroga-Puma, 848 N.Y.S.2d 853, 856-857 (2007) rev’d on other grounds, 884 N.Y.S.2d 567 (N.Y. App. Term 2009).

    [87].       See Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995) (holding that denial of benefits was not supported by substantial evidence). 

    [88].       Zadvydas, 533 U.S. at 701. 

    [89].       See e.g., Nadarajah v. Gonzales, 443 F.3d 1069, 1080 (9th Cir. 2006) (“A detention of nearly five years-ten times the amount of time the Supreme Court has considered acceptable absent a special showing-is plainly unreasonable under any measure.”); Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (ruling in favor of detained who had been held for two years and eight months pending removal proceedings); Ly v. Hansen, 351 F.3d 263, 273 (6th Cir. 2003) (although the petitioner was in part responsible for the delay, the court found that continued detention was unreasonable and affirmed the grant of the writ of habeas corpus); Xi v. INS, 298 F. 3d 832, 840 (9th Cir. 2002) (holding that Immigration and Naturalization Service was required to limit alien’s post-removal-period detention to reasonable time period, applied to alien deemed inadmissible to United States); Khalafala v. Kane, 836 F. Supp. 2d 944, 959 (D. Ariz 2011) (holding that continued detention without post-removal-period bond hearing violated his right to due process); Martinez v. Gonzales, 504 F. Supp. 2d 887, 900 (C.D. Cal 2007) (holding that detention for over five years was excessive and unauthorized by 8 U.S.C. §1226 (c) and that there was no significant likelihood of removal in the reasonably foreseeable future, so as to make continued detention reasonably necessary to bring about the alien’s removal); Madrane v. Hogan, 520 F. Supp. 2d 654, 670 (M.D. Pa 2007) (holding that alien’s continued detention was a due process violation and alien’s immediate release on his personal recognizance was required).

    [90].       See Abdel-Muhti v. Ashcroft, 314 F. Supp. 2d 418, 430 (M.D. Pa. 2004) (“Surely, just as what qualified as ‘reasonably foreseeable future’ must shrink under Zadvydas as the length of confinement grows, so must the amount of evidence supporting a finding of non-cooperation expand with the length of detention.”).

    [91].       Mitchell v. Gonzales, No. 4:06cv333-WS, 2007 WL 121348, at *1-3 (N.D. Fla. Jan. 12, 2007). 

    [92].       Id. at *9.  

    [93].       Id.

    [94].       Id. at *3.

    [95].       Id.

    [96].       2007 WL 121348, at *2.

    [97].       Id. at *3.

    [98].       Id. at *8

    [99].       Id. (citing Zadvydas, 533 U.S. at 690, 699-700).

  [100].       2007 WL 121348, at *7.

  [101].       See Rodriguez, 715 F.3d at 1144.

  [102].       See id. at 1145.

  [103].       See Kevin R. Johnson, The Intersection of Race and Class in U.S. Immigration Law and Enforcement, 72 Law & Contemp. Prob., at 1, 15 (2009).

  [104].       See Nina Rabin, Unseen Prisoners: Women in Immigration Detention Facilities in Arizona, 23 Geo. Immigr. L.J.702 (2009) (describing the growing share of women among immigrant detainees).  Cf. George A. Martinez, Immigration: Deportation and the Pseudo-Science of Unassimilable Peoples, 61 SMU L. Rev. 7, 13 (2008) (describing popular perception that Mexicans and Latinos constitute unassimilable peoples).

  [105].       See Johnson, supra note 105, at 34-35

  [106].       Elizabeth R. Ouyang, Immigrants with Prior Criminal Record Risk Removal from the United States—Impact on Asian Immigrants, 18 Asian Am. L.J. 157, 157-58 (2011).

  [107].       Id.at 162.

  [108].       Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 16 (2010).  See also Christopher J. Tyson, At the Intersection of Race and History: The Unique Relationship Between the Davis Intent Requirement and the Crack Laws, 50 How. L. J. 345, 346 (2007) (arguing that “[r]acialized mass imprisonment is a social, economic, and political process spurred by draconian anti-drug abuse sentencing legislation that simultaneously impacts the visibility of the Black community, the legitimacy of the criminal justice system, and the health of American Democracy”); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271, 1304 (2004) (“The mounting evidence of mass imprisonment’s collateral damage to African American communities shows that the extent of U.S. incarceration is not only morally unjustifiable, but morality repugnant.  By damaging social networks, distorting social norms, and destroying social citizenship, mass incarceration serves a repressive political function that contradicts democratic norms and is itself immoral.”).

  [109].       See Alexander, supra note 110, at 16. 

  [110].       Id. at 135.

  [111].       Id. at 136.

  [112].       Id. at 192. See James Foreman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21, 28 (2012) (reporting that “a person convicted of a crime today might lose his right to vote as well as the right to serve on a jury.”).

  [113].       Alexander, supra note 110, at 94.

  [114].       David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 5 (1999).

  [115].       Id. (emphasis in original).

  [116].       Id. at 9.

  [117].       Id. at 8.

  [118].       Id. at 8.

  [119].       Id. at 142.

  [120].       Id. at 153.

  [121].       Id. at 188.

  [122].       Paul Butler, One Hundred Years of Race and Crime, 100 J. Crim. L. & Criminology 1043, 1058 (2010).

  [123].       Id.

  [124].       See Ian F. Haney López, Is the “Post” in Post-Racial the “Blind” in Colorblind?, 32 Cardozo L. Rev. 807, 817 (2010).

  [125].       Id. at 816.

  [126].       César Cuauhtémoc Garcia Hernández, The Perverse Logic of Immigration Detention: Unraveling the Rationality of Imprisoning Immigrants Based On Markers of Race and Class Otherness, 1 Colum. J. Race & L. 353, 360 (2012); see also Raha Jorjani, Locked Up: Criminal and Immigration Incarceration in America, 4 DePaul J. for Soc. Just. 1, 5 (2010).

  [127].       Daniel I Morales, It’s Time For An Immigration Jury, 108 Nw. U. L. Rev. Colloquy 36, 36 (2013).

  [128].       See Rabin, supra note 104, at 702.

  [129].       ACLU, Holiday on ICE: The U.S. Department of Homeland Security’s New Immigration Detention Standards, 9 (Mar. 28, 2012).

  [130].       See ACLU of Georgia, Prisoners of Profit: Immigrants and Detention in Georgia 110 (2012).

  [131].       Id. at 13-14.

  [132].       Id. at 14-15.

  [133].       Id. at 16-17.

  [134].       See Breyer, supra note 63, at 104-105.

 

What Choice Did Rwanda Have?

Rebuilding a Modern System after the Genocide that Maintained the Traditional Ideals of Unity, Resolution, and Reconciliation

 Kaitlin M. Roach*

 

I. Introduction

A. The Rwandan Genocide

B. Post-Genocide Rwanda

II. Rwanda’s Vision 2020 Goals

III. Rwanda’s New Constitution

IV. Rwanda’s Traditional Ideals In Its Modern System

A. The Gacaca Courts

B. Abunzi Mediation

V. Conclusion

 I.  Introduction

“Any country emerging from conflict and embarking on a peace-building process, should not exclude its people, and it should always consider its own specific circumstances and context.” – President Paul Kagame[1]

 Rwanda is demonstrating to the international community that it is a nation determined to overcome the stigma that comes with genocide, to unify its people, and to find a place on the international stage without completely abandoning its traditional notions of unity, resolution and reconciliation in the process. These traditional ideals have been most successfully integrated into the modern Rwandan system[2] through the Gacaca Courts, the most well-known homegrown initiative in Rwanda,[3] and Abunzi, the mediation system that is essentially the successor of the Gacaca Courts.[4] Both Gacaca and Abunzi serve as significant evidence that homegrown initiatives in Rwanda provide a successful balance between a modern[5] system and the Rwandan traditional ideals of unity, resolution, and reconciliation. It is necessary for Rwanda to maintain its traditional ideals after the devastating genocide in 1994, for those traditional ideals are a critical part of rebuilding and modernizing, thus enabling Rwanda to become a more self-sufficient nation and a more prominent player on the international stage. Even though much more needs to be done, Rwanda is making positive strides toward becoming a more influential presence in the international community.

 A. The Rwandan Genocide

In 1994, mounting tension between the two primary social groups in Rwanda, the Hutu and the Tutsi, reached a breaking point that ultimately resulted in genocide. Fueled by political propaganda, Hutu extremists attacked Tutsis and moderate Hutus.[6] Three months after the genocide began, Paul Kagame, Rwanda’s current President, came into power when the Rwanda Patriotic Front, of which he was a soldier and leader, ended the genocide by force.[7] While countless acts of violence occurred during the three months of genocide, the international community did very little to intervene.[8] When the genocide ended, leaving over 800,000 Rwandans dead and the nation’s entire infrastructure in ruins, Rwanda had no choice but to rebuild.[9] Because the international community had, with few exceptions, generally turned a blind eye to the atrocities of the genocide,[10] Rwanda had to be its own solution. Maintaining traditional notions of unity, resolution, and reconciliation has helped Rwanda progress immensely since 1994 as well as allowed the Rwandan people to set goals so that they can continue this progression without heavily relying on the international community in the future.[11]

The people of Rwanda were victims of genocide twenty years ago. They will never forget the atrocities that occurred. The rest of the world should never forget. Now, however, the people of Rwanda have overcome being victims; they no longer want to carry the stigma that comes with genocide. Even so, the international community continues to look at Rwanda as a victimized nation, with such perceptions no doubt colored by the lens of the genocide.[12] This is as much of a disservice to the people of Rwanda after the genocide as it was to turn a blind eye to the genocide while it happened. It is important to distinguish between remembering the atrocities that devastated a nation and failing to recognize that Rwanda is rebuilding and moving forward.[13]

 B. Post-Genocide Rwanda

 Since the genocide, the people of Rwanda have been building a modern system while remaining true to their traditional ideals. This system is working for Rwanda, given Rwanda’s recent history, even though it may not work elsewhere. Admittedly, the system in Rwanda today is not perfect.[14] Nevertheless, the system Rwanda has built out of the rubble of genocide deserves recognition by the international community. The first step in gaining recognition came from the Vision 2020 goals drafted by the Ministry of Development and Economic Planning. The next step came from drafting the new Constitution in 2003, a Constitution that is intended to be a model for the whole world. Finally, the successes of the Gacaca Courts and the Abunzi mediation system deserve recognition. The government in Rwanda has seen the importance of codifying homegrown initiatives, such as Gacaca and Abunzi, into modern law to carry on the traditional ideals of Rwanda while building a modern system after the genocide.[15]  The fact that the Rwandan people have acknowledged in the Vision 2020 goals that maintaining and fostering the modern system’s continued growth is the most difficult challenge that Rwanda faces today also deserves recognition by the international community.[16]

The traditional ideals engrained in the modern Rwandan system, significantly so in the modern Gacaca Courts and Abunzi mediation system, stand in stark contrast to the American court system and mediation system, which are both adversarial and retributive. Arguably, mediation in the United States is a less adversarial alternative to litigation,[17] which is a similarity to its Rwandan counterpart. This is probably because the modern Rwandan systems of mediation and arbitration are partially based on other alternative dispute resolution systems like that of the United States.[18] However, even the mediation system and other methods of alternative dispute resolution in the United States are more adversarial than in Rwanda.

Rwanda’s recent history has enmeshed the traditional ideals of unity, resolution, and reconciliation into Abunzi. In contrast, the United States has only tried to create a less adversarial alternative to litigation.[19] There has recently been a push in the United States to utilize mediation more and to incorporate non-adversarial methods in mediation.[20] In this way, the language of Rwandan mediation clauses is similar to mediation statutes in the United States because both nations are striving to encourage parties to utilize mediation before litigation.  Another similarity between the mediation system in Rwanda and the system in the United States is that both nations have similar motivations for encouraging mediation: it saves time and money, and it helps prevent backlog in the courts.[21] Despite the similarities between the two mediation systems and the efforts by the United States to promote a less adversarial mediation system, Rwanda is more easily able to adhere to a non-adversarial system because of its consistency in keeping traditions relevant even as it makes efforts to continue to modernize its mediation system.

The international community should understand the challenges that Rwanda has faced and continues to face since the genocide and should give Rwanda recognition for coming so far in less than twenty years. More importantly, the international community needs to understand that in the context of a post-genocide nation, Rwanda faces different challenges than many other nations and consequently what Rwanda needs is different than what other nations need.

There is still much to be done in Rwanda, as it is still in a fragile state after the devastating genocide. The efforts that the people are making to rebuild their nation could serve as a benchmark to inspire other systems, such as the American system, to be less adversarial and retributive by showing that homegrown initiatives like Abunzi can keep traditional ideals relevant while operating as efficiently as other modern systems of alternative dispute resolution.[22]  The international community should stop allowing its view of Rwanda to be colored by the genocide, as many countries still view Rwanda as a victimized nation. It is easy to criticize a fragile nation so soon after genocide. The international community should take a step back and acknowledge that what might not work in other nations does work for Rwanda. The Rwandan system, like all systems, faces challenges. However, the challenges that Rwanda faces are the reason that the Vision 2020 goals and the new Constitution exist. Those challenges are also the reason that the modernized Rwandan system has maintained the traditional ideals embodied by Gacaca and Abunzi.

 II.  Rwanda’s Vision 2020 Goals

 “How do Rwandans envisage their future? What kind of society do they want to become? How can they construct a united and inclusive Rwandan identity? What are the transformations needed to emerge from a deeply unsatisfactory social and economic situation? These are the main questions Rwanda Vision 2020 addresses.”[23]

 In the years following the devastating genocide, Rwanda accurately identified the most challenging questions it faced when the Vision 2020 goals were drafted. Answering those questions required remaining true to the Rwandan traditional ideals of unity, resolution, and reconciliation to reunite the Rwandan people after the genocide tore them apart. Rwanda understood that it needed to be its own solution in order to create a lasting peace that would prevent a future genocide and help Rwanda to rebuild and grow. By challenging the people of Rwanda to attain the lofty Vision 2020 goals, Rwanda took the first step in reconciling and rebuilding a nation through tradition synergized with a modern system.

After a national consultative process took place in Rwanda from 1998 to 1999, the Ministry of Finance and Economic Planning drafted the Vision 2020 goals based on the consensus that Rwanda needed to clearly define its future in the aftermath of the genocide.[24] At that time, Rwanda had achieved some degree of political stability and had begun to revive the economy.[25] The core of the Vision 2020 goals as an achievable program can be summarized by the six pillars, which represent the main objectives of Vision 2020:

    1.  Reconstruction of the nation and its social capital anchored on good governance, underpinned by a capable state;
    2. Transformation of agriculture into a productive, high value, market oriented sector, with forward linkages to other sectors;
    3. Development of an efficient private sector spearheaded by competitiveness and entrepreneurship;
    4. Comprehensive human resources development, encompassing education, health, and ICT skills aimed at public sector, private sector and civil society. To be integrated with demographic, health and gender issues;
    5. Infrastructural development, entailing improved transport links, energy and water supplies and ICT networks;
    6. Promotion of regional economic integration and cooperation.

At all times, these will be affected by a number of cross-cutting issues including, gender equality and sustainable environmental and natural resource management.

Vision 2020 is to be achieved in a spirit of social cohesion and equity, underpinned by a capable state. Rwanda’s ongoing development will have, at its core, the Nation’s principal asset – its people.[26] 

Rwanda’s Vision 2020 goals set the bar very high for the people of Rwanda to rebuild the nation’s infrastructure as a unified people after the genocide. Now that the country has achieved a greater degree of political stability, the Vision 2020 goals are a driving force to improve “unsatisfactory social and economic conditions.”[27] Ultimately, Vision 2020 seeks to develop Rwanda into a middle-income, semi-industrialized country by the year 2020, halve income poverty, and substantially reduce inequality in the process.[28] Rwanda is also striving to achieve the Visions 2020 goals in a way that helps it phase out the humanitarian assistance associated with genocide and move toward a point of sustainable development, allowing Rwanda to then focus on creating a larger presence on the international stage.[29]

The Rwandan people’s determination to stand on their own feet, especially after an enduring a traumatic genocide, is especially worthy of recognition. The nation’s determination to achieve the Vision 2020 goals is evident in talking with Rwandans.[30] Even if the Vision 2020 goals as a whole seem overly ambitious, Rwanda is doing what is best for Rwanda as it tries to take steps in a direction that aims to inspire and rebuild the nation. The Vision 2020 goals set forth many of the same Rwandan ideals and goals that were later written in the new Constitution. Together, the Vision 2020 goals and Rwanda’s new Constitution serve as the cornerstones for a lasting peace, new growth, and modernization in Rwanda. Furthermore, they laid the foundation for Gacaca and Abunzi to carry on the traditional ideals of unity, resolution, and reconciliation as an integral part of Rwanda’s modern system. 

III.  Rwanda’s New Constitution

“The principle governing the Republic is ‘government of the people, by the people and for the people’”.[31]

Rwanda passed a new Constitution into law in 2003 that was intended to be a model for the whole world. Building off the momentum from the Vision 2020 goals, this Constitution was drafted with many innovations that should be recognized by the international community. Even though the Rwandan Constitution has already been amended four times, efforts were made to include the Rwandan people in the drafting of the document.[32] Rwandan citizens were able to attend large public meetings with Legal and Constitutional Commission (“LCC”) leaders, complete an LCC-issued questionnaire, and submit independent written comments and proposals.[33] The document itself and the way it has been implemented by the government has been criticized, but allowing the Rwandan people to have a say in what they want out of their Constitution, in a fashion similar to the Vision 2020 goals, has been an excellent mechanism for promoting reconciliation and unity after the genocide. In addition to encouraging this social change, Rwanda’s new Constitution serves as a mechanism to help Rwanda rebuild and grow after the genocide’s gravely detrimental impact on the country’s entire infrastructure. By providing the Rwandan people with substantial rights and protections and allowing the people to be involved with the drafting of the document, the new Constitution motivated the people of Rwanda to be active participants in the rebuilding and growth of their nation.

Compared to the United States Constitution, the Rwandan Constitution offers many of the same rights as its fellow democratic system.  However, the Rwandan Constitution goes a step further in many respects in the way that it empowers the Rwandan people through the process of creating the new Constitution as well as in the language of the document itself. The Rwandan Constitution is unique to Rwanda because it is a new democracy and especially because of Rwanda’s tragic recent history. As such, the Constitution of Rwanda may not serve as a model for the whole world in many respects, but it should still be recognized for helping to lay the foundation for Rwanda’s continued growth and progress.

The Rwandan Constitution, like the Constitution of the United States, offers many protections for its people while also creating a government whose function is to help uphold these protections and maintain stability.[34] However, unlike the United States Constitution, the Rwandan Constitution grants protections to more classes of people and has specific articles that are a direct result of the genocide. For example, the Rwandan Constitution offers protections in its anti-discrimination clause to more protected classes than does the US Constitution.[35] In Rwanda, the Constitution mandates that citizens have a duty to participate in the country through work, whereas in the United States, the Constitution implies that Americans have the right to do so.[36] Also, one of the many articles specific to Rwanda because of the recent genocide is an article granting citizens the right to defy orders from their superiors.[37] The drafters of the United States Constitution did not include such articles in their Constitution because their unique history at the time they drafted the document did not compel them to do so the way the Rwandan drafters were compelled to include such an article after the genocide. This is one of many reasons that certain articles, such as those that apply protections to more classes of people, can serve as a model for the entire international community. Yet it can still be argued that the history motivating specific provisions like this one make the Rwandan Constitution as a whole better for Rwanda than as a model for the rest of the world. For example, an article in the United States Constitution that gives United States citizens the right to refuse orders by their superiors would not make sense because the United States had not experienced a recent history that included genocide when the document was drafted. Another difference is that the U.S. Constitution does not impose duties on American citizens like a duty to work; the U.S. Constitution focuses much more on rights than duties.

Rwanda’s new Constitution, in conjunction with the Vision 2020 goals, has helped lay the foundation for stability and growth in Rwanda through the Rwandan tradition of reconciliation via modern democracy. Although the type of democracy that the Constitution provides for may not be what everyone thinks Rwanda needs, the Constitution provides a balance of democratic inclusion to unify the people and a strong enough government to prevent another genocide.[38]

 IV.  Rwanda’s Traditional Ideals in its Modern System

 “Reconciliation processes are particularly necessary and urgent in countries and regions of the world which have suffered, or are suffering, situations of conflict that have affected and divided societies in their various internal, national and international facets”[39]

Rwanda has not abandoned its traditional ideals of unity, resolution, and reconciliation in the modern, post-genocide age because those very concepts helped Rwanda rebuild and progress in the years following the genocide. Rather than abandoning these ideals in an attempt to move forward after the genocide, Rwandans have recognized that these ideals continue to be relevant today and are essential to Rwanda’s continued growth. Rwanda has therefore integrated the traditional ideals of unity, resolution, and reconciliation into the law and justice systems in Rwanda.[40] Homegrown initiatives focus on unifying the people and granting them a higher level of access to, and involvement in, the justice system.[41]

These traditional ideals have been embodied in two of Rwanda’s homegrown initiatives: the modern versions of the traditional Gacaca Courts and the Abunzi mediation system. These ideals have been a necessary part of the justice system in Rwanda because of Rwanda’s recent history. The United Nations General Assembly has recognized the necessity for places like Rwanda to maintain its traditional concepts to rebuild and move forward, and only countries that have been through tragic events like genocide can truly understand this need.[42] Given this, the successes of Gacaca and Abunzi withstand criticism from the international community and should be recognized and commended. Countries with systems that are more focused on retribution, like the United States, could learn from what Rwanda has accomplished through its prioritization of socially positive traditional ideals.

The traditional ideals of Rwanda do not claim to have universal applicability; they are instead context specific.[43] Yet the entire international community can learn from this and strive for unity, resolution, and reconciliation as the appropriate and desired outcomes of any dispute, whether it is a local civil dispute or an event as tragic as genocide. The international community has erroneously labeled institutions like Gacaca and Abunzi as “African conflict medicine.”[44] This widespread, condescending view stresses that mechanisms such as Gacaca and Abunzi are applicable to societies afflicted by conflict, like Rwanda and many other African nations that utilize similar traditional mechanisms for conflict resolution because of events in their respective recent histories.[45] Again, such traditional ideals should not be limited only to societies afflicted by conflict like Rwanda if they are capable of resolving conflict just as well, if not better than, notions like retribution.[46]

Reconciliation and the related processes associated with restorative justice seek to discover ways and means to build trust so that the parties might be able to live cooperatively with one another.[47] The Gacaca Courts were successful at helping the Rwandan people to achieve the beginnings of unity, resolution, and reconciliation. Now, the Abunzi mediation system continues to give the Rwandan people a modern mechanism that is still entrenched in those same traditional ideals still relevant in modern dispute resolution in Rwanda. The Rwandan people saw the necessity to avoid retribution even after the atrocities of genocide and addressed this need by utilizing traditional, local justice mechanisms.[48] The nation had experienced enough violence and suffering; converting the notion of retribution into conflict resolution mechanisms would have only perpetuated destructive social forces akin to those that had resulted in genocide. Because of the nation’s recent history, Rwandans continue to see the value in striving for a unifying, restorative, and reconciliatory mechanism for civil and criminal dispute resolution as opposed to the retributive approach in the United States.

 A. The Gacaca Courts

 “Gacaca is a Rwandan tradition, by Rwandans for Rwandans, where injustice was committed by Rwandans against Rwandans,”[49]

Because the judiciary, along with essentially all of Rwanda’s other infrastructures, had been destroyed in the genocide, the Rwandan people utilized the Gacaca Courts, a traditional mechanism for justice and reconciliation, when the country needed it the most. The Gacaca Court system was a necessary alternative to the International Criminal Tribunal for Rwanda implemented by the United Nations to try the participants in the genocide.[50] Although the Gacaca Courts have now closed, their use served a necessary step in applying Rwanda’s traditional ideals of reconciliation to further the reintegration of participants in the genocide so that Rwanda could rebuild. The Gacaca Courts allowed Rwanda to continue to be its own solution to the genocide that killed so many Rwandans and destroyed Rwanda’s infrastructure. The Gacaca Courts, established in 2002 after the genocide, were successful in synergizing traditional Gacaca with a modern system in accordance with the modern rule of law.[51]

Gacaca translates literally to “trials in the grass,” and, before 2002, the Gacaca Courts typically assembled to resolve disputes within or between families, especially in the more rural parts of Rwanda.[52] When the Gacaca Courts were established in 2002 to assist the International Criminal Tribunal for Rwanda in trying the participants of the genocide,[53] the Courts were a synthesis of the traditional Gacaca and the modern rule of law.[54] In that way, the Gacaca Courts that were in operation from June 18, 2002 until they were officially closed on June 18, 2012, tried over 1.9 million cases during that time[55] and emerged as a hybrid between a traditional truth and reconciliation process and a traditional Western-style trial in an attempt to seek a small degree of retribution for genocide participants.[56] This is yet another area where Rwanda should be recognized by the international community for its efforts since the genocide.

The United Nations has recognized that the Gacaca experience should be a lesson about how homegrown initiatives should be supported.[57] Legal experts have also praised the modern Gacaca Courts as the ideal alternative for the “failed” classic penal systems, like the Western judicial system, to give genocide victims timely justice.[58] According to Dr. Roelof Haverman, an independent consultant on the rule of law in Africa and a member of the Hague Rule of Law Network, “Gacaca trials were taken to the scene of the crime, with the victims, the offenders and the witnesses, relatives, neighbours, all taking a part in dispensing justice.”[59] Haverman also noted that the use of Gacaca trials enabled massive participation in dispensation of reconciliatory justice, with witnesses telling everything they saw and the accused confessing and begging for pardon.[60]

Gacaca did produce challenges, but the good outweighed the bad, especially in the absence of a feasible alternative.[61] In spite of criticisms from the international community, the Gacaca Court systems achieved justice for many Rwandan victims, as is the aim of Western trial systems, while also focusing on the traditional ideals of reconciliation and reintegration into society as much as possible, which is specific to Rwanda’s unique history. After the Gacaca Courts closed in 2012, the Abunzi mediation system carried on the synergy between Rwandan traditional ideals and a modern system.

 B.  Abunzi Mediation

 “Dialogue among opponents from positions of respect and tolerance is an essential element of peace and reconciliation . . . [and] that truth and justice are indispensable elements for the attainment of reconciliation and lasting peace”[62]

 Like the Gacaca Courts, the Abunzi mediation system has served an important role in the process of trying those who were involved in the genocide in a way that focused on reconciliation as opposed to retribution, the focus in the United States. However, unlike the modern Gacaca Courts created to address the genocide, the Abunzi is an indigenous, pre-colonial Rwandan system[63] that has been modernized and mandated into law after the genocide, similar to the modern version of Gacaca, the Gacaca Courts. After the genocide, the Rwandan Government said this approach was a necessary step towards reconciliation after the trauma of genocide.[64]

Now that the Gacaca Courts have closed,[65] the Abunzi system continues to demonstrate to the world that Rwanda’s traditional ideals can be useful in the modern, post-genocide age. Rwandans have not abandoned the traditional notions of unity, resolution, and reconciliation even now that the genocide participants have all been tried for their involvement. By utilizing the traditional mediation system when the country needed it the most, the Rwandan people have increased access to justice while at the same time healing and unifying the people after the genocide ended.[66] Abunzi mediation is part of the Rwandan justice system, whose restorative approach helps people address their conflicts without resorting to litigation and other retributive approaches.[67] Although it is loosely based on other alternative dispute resolution systems, like the mediation system in the United States, the Abunzi system is unique to Rwanda because it is a synergy between the traditional ideals of unity, resolution, and reconciliation with a more modern system.[68]

“Abunzi” translates literally to “those who reconcile.”[69] Abunzi is intended to evoke the notion of Abanyarwanda, basically meaning “Rwandanness,” transforming it into a unifying concept that is supposed to epitomize the concept of the “imagined community.”[70] Through Abunzi, Abanyarwanda therefore serves as yet another mechanism of unifying the Rwandan people and continually reinforces the traditional ideals of unity, resolution, and reconciliation through mediation to help that unity last. Although the concept behind Abunzi is deeply rooted in Rwandan tradition, the Abunzi is also mandated by law:

 There is hereby established a “Mediation Committee” responsible for mediating between parties to certain disputes involving matters determined by law prior to the filing of a case with the court of first instance.

 The Mediation Committee shall comprise of persons of integrity and acknowledged for their mediating skills.

 An organic law shall determine the organization, the territorial jurisdiction, the competence and the functioning of Mediation Committee. It shall also determine the number that comprise the mediation committee and the organ that elects it.[71]

 In addition to the Constitution, a complementary Organic Law also mandates Abunzi.[72] By mandating Abunzi as law, Rwanda has demonstrated its preference to resolve certain civil and criminal cases through mediation. This is similar to the United States where, in many states, parties must submit to mandatory mediation or arbitration before filing suit in a court of law.[73] Many states’ laws require mediation for certain types of civil disputes; such laws are very similar to the Model Clauses of the Kigali International Arbitration Centre:

 Any dispute, controversy or claim out of or in relation to this contract, including the validity, invalidity, breach or termination thereof, shall be submitted to mediation in accordance with the Kigali International Arbitration Centre Mediation rules in force on the date when the request for mediation is submitted

 Suggested clauses for mediation followed by arbitration:

    1.  Any dispute, controversy or claim out of or in relation to this contract, including the validity, invalidity, breach or termination thereof, shall be submitted to mediation in accordance with the Kigali International Arbitration Centre Mediation rules in force on the date when the request for mediation is submitted in accordance with these rules
    2. If such dispute, controversy or claim has not been fully resolved by mediation within one month from the appointment of the confirmation of the Mediator, it shall be settled by arbitration in accordance with the Kigali International Arbitration Rules

 Suggested clauses for future Dispute

    1.  The undersigned parties hereby agree to submit to mediation in accordance with KIAC rules the following dispute [brief description of the dispute]
    2. The seat of the mediation shall be KIAC unless (the parties agree otherwise), although meetings may be held in. . . [specify place]
    3. The Language of the proceedings shall be. . . [specify language][74]

Rwandan mediation is binding. Conversely, all mediation in the United States is nonbinding, even when it is required, so that parties who agree to mediate are still free to seek more adversarial, binding methods including arbitration and litigation.[75]

The American mediation and arbitration systems are still much more adversarial than the Rwandan Abunzi system. This is most clearly evidenced by the fact that parties must be forced to try to mediate or arbitrate a dispute in certain situations rather than immediately filing suit. In the United States, mediation and arbitration are always preferred because there is a desire to avoid overburdening the courts as well as a general policy allowing people to resolve disputes amicably without court involvement whenever possible. Despite this preference, Americans still have a reputation for being overly litigious, and the American legal and justice systems remain known for their overall retributive approach. In Rwanda, mediation and arbitration are the preferred and legally obligatory methods to prevent overburdening the courts, thus keeping the traditional values of unity and resolution relevant.[76]

The Abunzi system consists of over 30,000 mediators, Abunzi, who were selected as “persons of integrity,” just like their counterparts, the inyangamugayo, in the Gacaca courts.[77] By selecting mediators that the people of Rwanda can trust to help bring resolution to a conflict, the Rwandan government has given the Rwandan people some local ownership over the Abunzi system, as they tried to do with the drafting of the Vision 2020 goals, the new Constitution, and the implementation of the Gacaca Courts. This correlates to the Rwandan government’s general movement for the decentralization of justice.[78] The criticisms that decentralizing the justice system promotes coerced peace-building and makes the Abunzi mediation system inefficient[79] stand in stark contrast to the fact that the Rwandan people have been receptive to decentralization of justice and to the Abunzi as the first step in conflict resolution. According to the 2010 Citizen Report Cards (CRC) survey conducted by the Rwanda Governance Advisory Council (RGAC), the Abunzi mediation committees came as the first appreciated dispute resolution instrument when compared to other mechanisms because citizens felt that the Abunzi process allow for easy access to justice.[80]

In the United States, the mediation system also provides easier access to justice for its citizens. At the same time, the mediation system in the United States is still seen as a retributive system. For example, reasons to choose mediation rather than litigation to resolve a dispute are often presented to the parties in adversarial terms:

Why mediate? There are a number of reasons why participating in mediation as early after the dispute arises as possible is beneficial. They include efficiency in getting back to business, reducing the financial and emotional cost of fighting, eliminating risk (win or loss), the possibility of readjusting the adversary’s expectation and the exchanging of information, among others. [81]

 The differences between the American mediation system and the Rwandan system of Abunzi are not surprising given Rwanda’s recent history. The two systems do have some commonalities because both systems are a modern alternative to trial and often are required before litigation can be pursued. However, Rwanda’s mediation system is much more readily equipped to handle disputes in a non-adversarial way because of the traditional ideals that Abunzi mediators, as well as the parties, have constituently accepted. In the United States, parties must often be convinced to mediate rather than going to trial.[82] This was not always the case in the United States. In colonial America, emphasis was placed on communal peace and harmony between parties, but American diverged from this emphasis as legal issues got more complex over time.[83] In Rwanda, because its traditional ideals have consistently been adhered to, mediation is perceived as a natural first step in resolving disputes as opposed to a compromise to save time and money while each party still expects to get what they want out of a settlement agreement.[84] Perhaps if American experienced a recent history similar to that of Rwanda, it may have necessitated the implementation of homegrown initiatives to keep with the traditions that it valued in the colonial times. But because the United States strayed from those traditions, it now has a more adversarial mediation system than the Abunzi system in Rwanda.

The Rwandan government is striving to further develop mediation as an effective way to resolve disputes so that mediation continues to be a more effective mechanism for its people, like the mediation system in the United States. However, for Rwandans, developing the Abunzi system further does not mean abandoning the traditional ideals that the modern system of Abunzi mediation was built on, as the United States did. On the contrary, those traditional ideals will become more deeply engrained in the modern mediation system to allow for greater access to dispute resolution where there continues to be some degree of local ownership over the Abunzi.[85]

 V. Conclusion

 Rwanda should be recognized by the international community for its efforts and methods of rebuilding essentially its entire infrastructure after a catastrophic genocide that resulted in over 800,000 Rwandans losing their lives. After little help from the international community during the genocide, the people of Rwanda were determined to be their own solution after the genocide. Because Rwanda’s modern system in the post-genocide world is not perfect, criticisms are not difficult, but they are frequently inappropriate and misguided. Coming so far less than twenty years after the atrocities of the genocide and continuing to rebuild and grow should help Rwanda gain a more prominent role on the international stage.

Rwanda’s recent history is also the reason that the government understood the benefit of homegrown initiatives, like Gacaca and Abunzi, and why both systems are much less adversarial than the mediation system in the United States. Although the Rwandan Gacaca Courts have now closed, Abunzi is carrying on as a mechanism that is both a modern mediation system and a system maintaining the traditional ideals of unity, resolution, and reconciliation. Because modern Abunzi is based off of other modern alternative dispute resolution systems, such as the mediation system in the United States, the structure of the system does share commonalities with its American counterpart. However, the United States mediation system is still struggling to be less adversarial and is often perceived as an adversarial method for dispute resolution by parties and attorneys. Conversely, in Rwanda, the Rwandan government has more deeply engrained Rwandan traditions into its modern system as legal issues have become more complex since the genocide. Furthermore, unlike Americans, Rwandans have embraced the synthesis of their traditions with the modern system because of Rwanda’s recent history.

The Vision 2020 goals, the new Constitution, and the synergy of traditional ideals with a modern system in the Gacaca Courts and then in the Abunzi mediation system should not be picked apart by the same international community that turned its back on Rwanda when the Rwandan people needed it the most. Despite whatever improvements could or should be made to the post-genocide system in Rwanda, is has been and continues to be successful by motivating and empowering its citizens as they continue to rebuild and modernize the much-needed infrastructures while at the same time staying true to the Rwandan traditional ideals of unity, resolution, and reconciliation. These traditional ideals have been most successfully applied to the modern system in Rwanda through the Gacaca Courts and the successor of the Gacaca, the Abunzi mediation system. This is a difficult balance to maintain, but Rwanda has been successful doing what works for Rwanda, given its unique recent history.

 


* Law Student, Gonzaga University School of Law.  I would like to thank Professor Cheryl Beckett for the opportunity to participate in the Legal Capacity Building Program in Kigali, Rwanda and for her guidance throughout this project. Professor Cheryl Beckett for the opportunity to participate in the Legal Capacity Building Program in Kigali, Rwanda and for her guidance throughout this project.

      [1].       Martha Mutisi, Local Justice and Conflict Resolution: The Abunzi Mediators of Rwanda, African Center for the Constructive Resol. of Disputes (July 11-14, 2012), http://www.usb.ac.za/DisputeSettlement/ppts/Martha-Mutisi_ACCORD_IACM-2012.ppt [hereinafter Conflict Resolution].

      [2].       I have chosen to use the term “system” to describe the political, legal, economic, and social mechanisms and realms of Rwanda as one collective “system.”  In all of these areas, the nation’s approach to rebuilding – its focus on maintaining tradition while embracing modernity – is so pervasive that it affects nearly every aspect of Rwandan life.

      [3].       Roelof H. Haverman, The Rule of Law in Rwanda: Prospects and Challenges, HiiL Rule of Law Quickscan, 29 (Apr. 2012), http://www.hiil.org/data/sitemanagement/media/ Quickscan_RuleofLaw_Rwanda_digitaal_130812.pdf.

      [4].       Id. at 32.

      [5].       In this context, “modern” is intended to mean post-genocide. Rwanda is modernizing in the sense it is going to become a more prominent actor in the international community politically, economically, and socially because of how it is rebuilding and progressing.

      [6].       Conflict Resolution, supra note 1.

      [7].       Id.

      [8].       See Stevenson Mugisha, UN Failed Rwanda, Rwanda Focus (Feb. 22, 2014), http://focus.rw/wp/2013/05/un-failed-rwanda/ (discussing how the UN Secretary General admits that the UN and the international community failed Rwanda and praising Rwanda for accomplishing so much in just two decades).

      [9].       See generally Rwanda Vision 2020, Republic of Rwanda Ministry of Finance and Economic Planning (July 2000), available at https://www.sida.se/Global/ Countries%20and%regions/Africa/Rwanda/D402331A.pdf.

    [10].       There are countless accounts of how the UN leader on the ground, Romeo Dallaire, many of his UN troops, and others wanted to do more to help the people of Rwanda, but they were not successful. See Stephanie Rohr, The Response of the International Community to the Rwanda Genocide, U. Wis. La Cross J. of Undergraduate Research XII, 5-7 (2009), available at http://www.uwlax.edu/urc/jur-online/PDF/2009/rohr-stephanieHIS.pdf (discussing generally the response of the international community and Dallaire’s efforts).

    [11].       Rwanda Vision 2020, supra note 9.

    [12].       For example, when I told my friends and colleagues that I was going to Rwanda, everyone had the same reaction: their eyes got wide, and they made a comment about the genocide or expressed concern about my safety there.  It is dismaying that often the only thing people can relate to when Rwanda is mentioned is the movie Hotel Rwanda, Hotel Rwanda (United Artist 2004), rather than how far Rwanda has come since the genocide that inspired the movie.  In Rwanda, I learned that the majority of Rwandans detest that movie for glorifying one man during the atrocities of the genocide and the way the movie has turned their tragic recent history into a source of entertainment for the international community. 

    [13].       I saw firsthand what the devastation from genocide looked like by visiting the Kigali Genocide Memorial Center and hearing what the genocide was like from people who were there and were fortunate enough to survive it.  Everywhere I looked, I saw the benefits of keeping traditional ideals relevant because I saw progress through the Rwandans’ determination, growth, unity, and hope.  This is how Rwanda has distinguished between remembering and moving forward.

    [14].       The extent to which Rwanda has been criticized by the international community since the genocide is beyond the scope of this article.  The main purpose of this piece is to demonstrate that the modern system in Rwanda synergized with Rwandan traditions is working in Rwanda; it may not work elsewhere because other nations lack Rwanda’s unique recent history.  However, the international community should consider that even though they do not share Rwanda’s traditions as an integral part of their respective modern system, Rwanda’s system could inspire other nations, like the U.S., to focus more on the traditions.  Regardless, it is important to acknowledge that criticisms exist and that Rwanda is susceptible to these criticisms because of its recent history.

    [15].       Haverman, supra note 3, at 29.

    [16].       See Rwanda Vision 2020, supra note 9.

    [17].       Richard M. Calkins, Caucus Mediation – Putting Conciliation Back into the Process: The Peacemaking Approach to Resolution, Peace, and Healing, 54 Drake L. Rev. 259, 263 (2006). 

    [18].       See Martha Mutisi, The Abunzi Mediation in Rwanda: Opportunities for Engaging with Traditional Institutions of Conflict Resolution, 12 ACCORD Policy & Practice Brief 4 (Oct. 2011) [hereinafter Abunzi Mediation].

    [19].       See, e.g., Wash. Rev. Code § 64.55.120 (2010) (requiring mandatory mediation for property disputes).

    [20].       See Calkins, supra note 17, at 267 (discussing the revival of Mediation and other forms of ADR in the United States in the past fifteen years or so and also proposing peacemaker mediation as opposed to adversarial mediation).

    [21].       See id. at 260-61.

    [22].       See Haverman, supra note 3, at 32-34 (discussing the successes of the Abunzi).

    [23].       Rwanda Vision 2020, supra note 9, at 6.

    [24].       Id.

    [25].       Id.

    [26].       Id. at 6-7.

    [27].       Id. at 6. 

    [28].       Id. at 12, 14.

    [29].       Id. at 6.

    [30].       While on a tour of Kigali, we drove through a very upscale neighborhood that resembled the wealthy, lavish areas of Southern California; our tour guide informed us “by the year 2020, all the neighborhoods in Kigali will look like this.” Even if the Kigali homeowners fall short of achieving this arguably superficial goal by 2020, the conviction for self-improvement this woman exhibited mirrors the attitude of the nation toward all of the Vision 2020 goals. 

    [31].       Constitution of the Republic of Rwanda May 26, 2003, art. 1.

    [32].       See generally Angela M. Banks, Expanding Participation in Constitution Making: Challenges and Opportunities, 49 Wm. & Mary L. Rev. 1043 (2008) (outlining the efforts the Rwandan government took to include Rwandan citizens in drafting the new Constitution).

    [33].       Id at 1045.

 

    [34].       See generally U.S. Const.

    [35].       Constitution of the Republic of Rwanda May 26, 2003, arts. 16, 33, 37, 46, 53, 54.

    [36].       Cheryl Beckett, Rwanda: Striving to Meet ILO and Millennium Development Goals, Presentation for Gonzaga University School of Law in Florence, Italy (June 11, 2012) (presentation on file with author).

    [37].       Constitution of the Republic of Rwanda May 26, 2003, art. 48 (“Every citizen has the right to defy orders received from his or her superior authority if the orders constitute a serious and manifest violation of human rights and public freedoms.”).

    [38].       There is currently a lot of criticism of President Paul Kagame and his government exercising too much control in Rwanda. See Banks, supra note 32, at 1067. However, Rwanda’s unique history explains why Paul Kagame needed to establish and lead a strong government in order to maintain a lasting peace and to prevent future genocide. Id.  This controversy is worth mentioning, especially with the current concern that Paul Kagame wants the new Constitution amended for fifth time so that he can extend his Presidency beyond the constitutionally allowed limit.  See Now Rwanda’s Transition Hinges on amending law to Keep Kagame, East African (June 26, 2013), http://www.theeastafrican.co.ke/news/Now-Rwanda-transition-hinges-on-amending-law-to-keep-Kagame-/-/2558/1891220/-/item/0/-/k1a2mq/-/index.html.  This piece does not address Paul Kagame’s Presidency further, but this is another example of how Rwanda’s unique history may require the Rwandan people to do things their way.

    [39].       G.A. Res. 61/17, ¶ 2, U.N. Doc. A/61/PV.59 (Nov. 28, 2006).

    [40].       See Haverman, supra note 3, at 29-32 (discussing how the traditional Gacaca and Abunzi have been part of local justice in Rwanda for a long time and how, after the genocide, the government recognized the importance of the traditional ideals behind Gacaca and Abunzi by codifying them into law as part of the modern system in Rwanda).

    [41].       See generally Abunzi Mediation, supra note 18 (discussing the decentralization of justice in Rwanda).

    [42].       Id. at 1.

    [43].       Id.

    [44].       Id. at 2.

    [45].       Id.

    [46].       When I spoke with Rwandan citizens, including successful Rwandan lawyers, they assumed that all American lawyers were rich because that it all they had seen on television and in movies. I could not help but think that this was also the result of America’s reputation as an overly litigious society where all attorneys seek retribution for their clients at all costs and make excessive amounts of money for themselves in the process. It would likely be much more believable that we have public interest attorneys and other attorneys who are not very rich if our society was not perceived to be retributive with our legal and justice systems.

    [47].       Christopher C Joyner, Reconciliation as Conflict Resolution, 8 N.Z. J. Pub. & Int’l L. 39, 39-40 (2010).

    [48].       See Haverman, supra note 3, at 29-32.

    [49].       Bosco R. Asiimwe & Felly Kimenyi, Legal Experts Hail Gacaca, New Times Rwanda (June 18, 2012), http://www.newtimes.co.rw/news/index.php?i=15027&a=54925

    [50].       A full discussion of the Gacaca Courts is beyond the scope of this piece.  However, introducing Gacaca is necessary because it served as the predecessor to the Abunzi by synergizing Rwandan tradition ideals with the modern, post-genocide system through homegrown initiatives.

    [51].       Michelle Ciurria, Complicity and Criminal Liability in Rwanda: A Situationist Critique, 17 Res Publica 411, 417-18 (2011).

    [52].       Id. at 417.

    [53].       Edwin Musoni, Gacaca is a Lesson to the World, New Times Rwanda (June 18, 2012),  http://www.newtimes.co.rw/news/index.php?i=15027&a=54926.

    [54].       Ciurria, supra note 51, at 414.

    [55].       Musoni, supra note 53.

    [56].       Ciurria, supra note 51, at 418.

    [57].       Musoni, supra note 53 (discussing how Gacaca provided a solution to the complex nature of the genocide cases and helped with the backlog of cases at the International Criminal Tribunal for Rwanda headed by the UN, which stated that Gacaca definitely contributed to the peace and reconciliation process and was not vigilante justice, as many critics had predicted).

    [58].       Asiimwe & Kimenyi, supra note 49.

    [59].       Id.

    [60].       Id.  When I was in Kigali, one of our guides told my group that her mother had testified in a Gacaca hearing as a witness because it was their responsibility to tell what they saw if they witnessed any atrocities during the genocide. 

    [61].       Asiimwe & Kimenyi, supra note 49.

    [62].       Joyner, supra note 47, at 39-40 (discussing the notion of reconciliation as a prominent international topic of conflict resolution and how it enables parties in a dispute to examine their particular situation to overcome sorrow and live together in peace after resolving the dispute).

    [63].       Martha Mutisi, Local Conflict Resolution in Rwanda: The Case of Abunzi Mediators, Int’l Rel. & Sec. Network 69 (2012), available at www.isn.ethz.ch/Digital-Library/Publications/Detail/?lng=en&id=146651 [hereinafter Case of Abunzi Mediators].

    [64].       Id.

    [65].       Musoni, supra note 53.

    [66].       See Case of Abunzi Mediators, supra note 63, at 42.

    [67].       Id.

    [68].       Id. at 62.

    [69].       Id. at 46.

    [70].       Id. at 54.

    [71].       Constitution of the Republic of Rwanda May 26, 2003, art. 159.

    [72].       Organic Law No. 31/2006 on the Organisation, Jurisdiction, Competence and Functioning of the Mediation Committee (Aug. 14, 2006) (amended by Organic Law No 02/2010/OL on the Organisation, Jurisdiction, Competence and Functioning of the Mediation Committee (Sept. 6, 2010)).

    [73].       Calkins, supra note 17, at 267.

    [74].       See Model Clauses, Kigali International Arbitration Centre, http://kiac.org.rw/model-clauses (last visited Jan. 26, 2014).

    [75].       Calkins, supra note 17, at 268.

    [76].       Abunzi Mediators, supra note 18, at 1.

    [77].       Conflict Resolution, supra note 1.

    [78].       Abunzi Mediators, supra note 18, at 1.

    [79].       See generally Banks, supra note 32.

    [80].       Rwanda Governance Board, Innovation Abunzi, http://www.rgb.rw/main-menu/innovation/abunzi.html (last visited Feb. 17, 2014).

    [81].       Robert E. Marguiles, Food for Thought: Why Should My Client Mediate?,  269-APR N.J. Law 14, 14 (2011).

    [82].       See Deborah R. Hensler, Suppose It’s Not True: Challenging Mediation Ideology, 2002 J. Disp. Resol. 81, 96 (2002).

    [83].       See Calkins, supra note 17, at 266-67.

    [84].       See Marguiles, supra note 81, at 14.

    [85].       See Case of Abunzi Mediators, supra note 63, at 60.

 WHY THE LAWS OF WAR? A SEPARATION-OF-POWERS ARGUMENT FOR STRIKING THE MILITARY COMMISSIONS ACT

 Mary Van Houten

INTRODUCTION

I. SETTING THE STAGE: THE UNANSWERED ANTECEDENT QUESTION

A.      Methodology

B.      The Court’s Invitation: Hamdan v. Rumsfeld

C.      The Legislature’s Response

D.     The Courts’ Change in Tone: Hamdan II / Al Bahlul

E.      The Question Left Open

II. WHY THE LAWS OF WAR?

A.   Methodology

B.   The Development of the Law of War

C.   Historical Backdrop

D.   Statutory Backdrop

E.   Necessary Preconditions

1. Military necessity

2. In the theatre of war

3. For violations of the law of war

a. Not inchoate, non-universal crimes

b. Not federal crimes

III. WHY THE SEPARATION OF POWERS? THE NEGLECTED BRANCH

A. The Authority to Convene

1. The Executive branch

2. The Legislative branch

3. The Judicial branch

B. The Essential Roles of the Judiciary

1. To prevent abuse by the political branches

2. To preserve Article III authority

CONCLUSION

 

“‘In one day . . . has the fair character of this nation been blasted! That character for justice and mercy in which we had thought ourselves pre-eminent, and of which we had so proudly boasted to the other nations of the earth, is now prostrated as low as theirs.’”[1]

 

INTRODUCTION

From former President Bush’s initial military order (M.O.)[2] establishing the Guantanamo Bay military commissions to the increasingly heated forum battle between the Obama Administration and Congress,[3] the use of commissions has proven problematic politically and diplomatically, and, some argue, perhaps undermined the Administration’s ultimate detention purposes.[4] But the Supreme Court has never directly addressed Congress’s authority to expand jurisdiction over federal crimes not recognized by the international law of war,[5] as Congress purported to do under the 2006 and 2009 Military Commissions Act (“MCA”).[6]

The MCA, which Congress stipulated did not codify “new” war crimes, expanded military commission jurisdiction over the crimes of conspiracy and material support of terrorism.[7] But these stand-alone inchoate offenses are not violations of the international law of war, as confirmed by Supreme Court precedent, past and present scholarship, and the international community’s understanding.[8] Left unaddressed, this extension dramatically changes the scope of the military commissions[9] and threatens the delicate tripartite balance entrenched in the U.S. Constitution.

The D.C. Circuit strayed from its characteristically deferential trend with its first reversal of a military commission conviction, Hamdan v. United States, in October 2012.[10] The court vacated the conviction of an already-released detainee, Salim Ahmed Hamdan, for material support for terrorism. To get there, the court held that Congress did not intend to apply the MCA retroactively to newly-proscribed crimes committed before 2006— and that the relevant statute at the time the crime was committed did not “encompass material support for terrorism.”[11]  Despite the MCA’s clear text to the contrary.[12] As such, Hamdan’s conviction could not stand.

But when Hamdan challenged Congress’s precursor authority to make conspiracy triable by military commission, the D.C. Circuit provided: “We do not decide that antecedent question.”[13] This preserved an unprecedented expansion of the traditional subject matter jurisdiction exercised by military commissions. Congress’s now-seemingly idiosyncratic authority to create new war crimes and subject them to military commission will again be put to the test: in April 2013, the D.C. Circuit granted the government’s petition for an unusual en banc rehearing[14] of al Bahlul v. United States[15]—the D.C. Circuit’s second-ever reversal of a military commission conviction. If the en banc rehearing does lead to the Supreme Court, as most suppose, how should the Court decide the “antecedent,” or prospective, question?

This Note attempts to constitutionally situate Congress’s expansion of military commission jurisdiction over non-international-law crimes in the 2006 and 2009 MCA. In particular, this Note answers whether there is something about the law of war itself that provides the constitutional ceiling by which Congress can require the adjudication of non-law-of-war offenses before a military commission. In the end, I argue that the law of war has always served as a structural constraint on the political branches’ authority to create military commissions per separation of powers and Article III doctrine. Whether or not the forum battle continues, it is clear that at least for stand-alone inchoate offenses, trial by military commission is improper.

Part I of this Note sets the stage for the preserved “antecedent question,” discussed above. In Part II, I explain not only whether the commissions’ jurisdiction has been limited to the law of war, but also why such limits are functionally necessary. In so doing, I also discuss why conspiracy and material support of terrorism have no place before military commissions. Since 2006, relatively little scholarship has focused on why, given this stipulation, military commissions must be limited to adjudicating violations of the laws of war.[16] This Note attempts to fill that gap.

Finally, in Part III, I discuss the oft-neglected limitation to commissions’ offense jurisdiction: the Constitution and Article III. The expansion of military jurisdiction over federal crimes properly within Article III’s purview offends separation of powers. Further, the judiciary has always looked to the law of war to determine whether Congress has unconstitutionally established a military commission; it is its necessary and proper constitutional role to circumscribe such abuses.

 

I.    SETTING THE STAGE: THE UNANSWERED ANTECEDENT QUESTION

 A. Methodology

 Before discussing military commissions’ subject matter jurisdiction under the MCA, two points regarding terminology and approach are relevant. First, this Note does not argue that international law must serve as an external limit on Congress’s law-making authority. That the federal courts have not used international law as an authoritative Constitutional limit is evident, and though its application in the terrorism context would be prudent, the courts have not directly addressed this question.[17] I do argue, however, that past practice, precedent, and pragmatic considerations indicate that the international law of war does give definition to such limits domestically,[18] which the Constitution articulates in Article I,[19] and also that constitutional separation of powers requires that such limits remain. [20]

Second, it is also true that Congress possesses unlimited authority to define new federal crimes under Title 18 of the U.S. Code within its ordinary Article I powers. This is not disputed. But, I contend, Congress does not similarly possess unlimited authority to make those crimes triable by military commission. This is so notwithstanding its enumerated powers to “Define and punish . . . offenses against the law of nations.”[21] Rather, while Congress must authorize the commission and initiate its jurisdiction, there exists an additional constitutional restraint that must not be neglected, and which lies at the root of the jurisdiction question.

 B. The Court’s Invitation: Hamdan v. Rumsfeld

In one of the few instances where the Supreme Court exercised the writ of certiorari over a case involving Guantanamo detainees’ rights, it ruled in favor of Salim Ahmed Hamdan—Osama bin Laden’s bodyguard and personal driver.[22] After being detained for two years without trial, Hamdan was charged with two claims of conspiracy “to commit . . . offenses triable by military commission.”[23] After two more years, the Supreme Court held that the commission lacked power to proceed regardless of Hamdan’s substantive offense: the procedural rules established by the military commission contravened statutory limits.[24] This was the first time the Court rejected elements of the Bush Administration’s military commissions; it was a momentous decision.

The less cited—and equally powerful—plurality opinion in Hamdan I states that conspiracy to commit terrorism is not a cognizable violation of the law of war.[25] Justice Stevens established, “[n]ot only is [a law-of-war commission’s] jurisdiction limited to offenses cognizable during time of war, but its role is primarily a factfinding one—to determine, typically on the battlefield itself, whether the defendant has violated the law of war.”[26] Justice Stevens concluded that neither the historical record, nor Supreme Court precedent, nor scholarship, nor current international sources consider conspiracy a war crime.[27]

Justice Stevens departed from what would be the logical conclusion: that Hamdan’s military commission lacked jurisdiction because conspiracy is not a violation of the law of war. Instead, he couched the issue in whether Congress had “positively identified ‘conspiracy’ as a war crime” in the relevant statute.[28] Where Congress has not so codified, Justice Stevens explained, to establish jurisdiction over the offense “precedent must be plain and unambiguous” that it constituted a violation of the law of war.[29] In other words, conspiracy could be triable by military commission if Congress had explicitly said so in 10 U.S.C. § 821,[30] the statute authorizing jurisdiction over violations of the law of war. Justice Scalia, in dissent, scoffed at the creation of a “newly minted clear-statement rule.”[31]

Though unnecessary to the holding, the plurality’s discussion has had profound implications on how the perceived authority of the commissions’ jurisdiction has evolved since 2006. That Justice Stevens tethered the authority to try an offense by military commission—even one that is clearly not a violation of the law of war—to Congress’s lawmaking power clouds the constitutional question: May Congress unilaterally and idiosyncratically create new “laws of war,” and require their adjudication before military commission?

 C. The Legislature’s Response

By avoiding the constitutional issue, the Court created a vacuum in military power that Congressrushed to fill. In direct response to the invitation extended by Hamdan I, Congress passed the Military Commissions Act of 2006. The MCA revised the current statute authorizing the commissions, listing twenty-eight crimes—including conspiracy to commit terrorism and material support of terrorism—that could be tried by military commission.[32] The commissions were authorized to exercise jurisdiction over “any alien unprivileged enemy belligerent”[33] whose offense was committed “before, on, or after September 11, 2001.”[34] Arguably, to avoid the jurisdictional issue, Congress also provided:

 The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before [its] enactment, . . . but rather codifies those crimes for trial by military commission.”[35]

 “Because the provisions of this subchapter” (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes “that occurred before the date of the enactment of this chapter.”[36]

 Merely stating that the MCA’s provisions codify existing law does not make it true ipse dixit. There is an abundance of scholarship—both for and against Congressional authority in this matter—which concedes the newly-proscribed offenses are not declarative of existing international law of war.[37] Even the government so recognizes.[38] The drafters of the MCA were trying to make a legal problem disappear by redefining it.

After President Obama’s Executive Order requiring the closure of Guantanamo,[39] his Detention Policy Task Force[40] issued a report in 2009 affirming that the White House preferred federal terrorism crimes to be tried in federal court, and violations of the law of war to be tried in military commission.[41] The Senate Armed Service Committee’s report identified “ensuring the offenses charged in military commissions are law of war offenses,” as a key element for change.[42] In July of 2009, Assistant Attorney General David Kris plead before the Senate:

 While [material support for terrorism] is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant likelihood that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby threatening to reverse hard-won convictions and leading to questions about the system’s legitimacy.[43]

 However, Congress chose not to eliminate either conspiracy or the material support charge when it amended the statute in October to clarify the law governing military commissions. Despite Hamdan I’s ruling, it reaffirmed that the triable offenses applied to pre-2006 conduct.[44] When the Administration publicly announced in November 2009 that it planned to transfer five detainees from Guantanamo to the Southern District of New York for civilian trial,[45] Congress eliminated funding for the detainees’ transportation. [46]This “effectively made military commissions the only viable option for trying Guantanamo detainees. . . for the foreseeable future.”[47]

Under the expansive permission of the MCA, the Court of Military Commissions Review (CMCR) unanimously upheld Hamdan’s conviction of material support for terrorism in 2011.[48] That same year, the CMCR affirmed the conviction of Ali Hamza Suliman al Bahlul, a Yemeni citizen who had boycotted his trials, of conspiracy to commit terrorism with al Qaeda.[49] Al Bahlul, Osama bin Ladin’s public relations secretary and “media man,” was sentenced to life imprisonment. In both cases, the CMCR ruled on the subject matter jurisdiction in deference to Congress: “Where Congress’ determination that certain acts constitute offenses under the law of nations is consistent with international norms, we also conclude that the specific statutory scheme employed by Congress . . . is due great deference.”[50] Most trials by military commission settled by plea bargain,[51] and until 2012 the D.C. Circuit did not reverse a single conviction.

 D. The Courts’ Change in Tone: Hamdon II / Al Bahlul

The D.C. Circuit finally stepped in during October 2012 in its first reversal of a military commission conviction.[52] In January 2013, the D.C. Circuit vacated per curiam al Bahlul’s conviction after the government conceded Hamdan II controlled.[53] But the issue is far from settled. The government filed a petition to re-hear al Bahlul en banc, perhaps stalling before it appeals the decision to the Supreme Court,[54] which the D.C. Circuit granted in April 2013.

The court’s holding in Hamdan II is twofold. First, it held that the MCA—despite its clear language[55]—did not authorize retroactive prosecution of war crimes that were not prohibited at the time of their commission.[56] In reaching this conclusion, Judge Kavanaugh argued that Congress had intended (per its stipulations[57]) to avoid an Ex Post Facto Clause issue. He maneuvered, “as stated in the statutory text . . . Congress believed that the Act codified no new crimes and thus posed no ex post facto problem,” and it “would not have wanted new crimes to be applied retroactively.” [58] This was, perhaps, a clear inversion of Congress’ intent in enacting the MCA.[59] The court’s interpretation is suspect, however. Whether the MCA can apply retroactively, or prospectively only, is the main question prompted by the D.C. Circuit in the al Bahlul rehearing.[60]

Second, after he declared the MCA did not apply to pre-2006 conduct, Judge Kavanaugh directed: “Hamdan’s conviction stands or falls on whether his conduct was prohibited by the pre-existing statute, 10 U.S.C. § 821, at the time he committed the conduct.”[61] Justice Kavanagh, like Justice Stevens before him in Hamdan I, directly tied his analysis of the commissions’ offense jurisdiction back to statute. Because 10 U.S.C. § 821—which limited commissions’ jurisdiction to violations of the international law of war—did not include material support for terrorism, Hamdan’s conviction could not stand.[62] The entire analysis of whether this offense was a war crime was couched in this statutory framework.

In so doing, the court ducked the more difficult, prospective question. When Hamdan challenged whether Congress had Article I authority to make material support for terrorism triable by military commission in the first instance,[63] the court held: “We do not decide that antecedent question.”[64] In its minimalist tradition, the court rested on the retroactive issue and the prior statutory scheme instead.

Judge Kavanaugh did address the antecedent question, however. He alone concurred in footnote six, concluding that “Congress’s war powers under Article I are not defined or constrained by international law,” since “the U.S. Constitution does not give the international community—either directly, or indirectly through the vehicle of international law—a judicially enforceable veto over Congress’s exercise of its war powers.”[65] As a leader on the D.C. Circuit, this footnote may be a portent of how the en banc hearing might decide. But three conservative judges decided Hamdan II; the full panel rehearing al Bahlul might issue an even more unfortunate opinion for the government.

Even on Hamdan II’s narrow grounds, the government condemned, “[t]he detrimental effect of Hamdan II on the military commission system is apparent: every pending military commission prosecution, and every conviction already obtained under that system, have included either conspiracy or material support charges (or both) for conduct committed before 2006.”[66] But, in actuality, most of the detainees’ charges include other offenses in addition to the inchoate offense; stand-alone inchoate offenses are rare. In light of the funding restrictions, removing these offenses could mean that the detainees would continue to be held without charge—a discouraging truth for a majority of the Guantanamo detainees.[67]

However, regardless of its immediate effect, the MCA still requires future convictions of these offenses to be tried before military commission. This is the case even though these offenses are ill-suited for the obvious procedural and evidentiary inadequacies in military commission trials, resulting in largely unfair process and almost guaranteed convictions. The unfairness would particularly operate over “smaller fish,” i.e., low- and mid-level terrorism suspects who did not individually participate in the attacks.[68] This is made all the worse by Congress’s funding restrictions, by which “the politics of bringing detainees to the U.S. for trial have foreclosed federal criminal courts as a possible option.”[69]

Further, the MCA provides no limiting principle on Congress’s authority to require the adjudication of idiosyncratic crimes before commissions traditionally used for battlefield preparation. This completely abuses the purpose of the commissions and the prohibition of their jurisdiction over federal crimes. Finally, in the long term, this sweeping construction would undermine the traditional “case or controversy” authority of Article III and the rule of law the U.S. Constitution embodies.

 E. The Question Left Open

 Neither the Supreme Court nor the D.C. Circuit has ever squarely addressed the scope of Congress’s powers to expand military commission jurisdiction over enemy combatants beyond violations of the laws of war.[70] The question remains: does Congress possess unlimited authority to make idiosyncratic crimes triable by military commission?

If the en banc panel reads the MCA to apply retroactively,[71] and if it does not go as far as Judge Kavanaugh opines, then it may likely still avoid the antecedent issue with the Ex Post Facto Clause. If the MCA is not read retroactively,[72] the decision may turn, again, on whether conspiracy is traditionally a violation of the law of war. This latter option would send the D.C. Circuit and the Supreme Court again into a deep delve of history of whether conspiracy was actually tried per the U.S. law of war,[73] not very different than the discussion already reached by a plurality in Hamdan I. Thus, I argue, instead of analyzing sparse cases that occurred over 200 years ago, and engaging in illogical statutory interpretation, the proper response is to finally reach the antecedent question and the constitutional basis for the commissions: the subject matter jurisdiction of law-of-war military commissions is limited to offenses against the law of war.

In 2002, Professor Turley noted that we stand at a “crossroads” in embracing or rejecting such tribunals, for they “[promise] a new and uncertain future for our constitutional system.”[74] With an even more dramatic expansion of the commissions’ jurisdiction in 2006, and without the prospective issue reached, the stakes are much higher for future detainees subject to military commission, jeopardizing our constitutional system as a whole.

 

II. WHY THE LAWS OF WAR

 A. Methodology

The “antecedent question” should have been met with the logical and constitutional conclusion: the subject matter jurisdiction of military commissions is limited to violations of the law of war. Tracing the use of the law of war in military commissions’ history, it is obvious not only if the laws of war have operated as such a limit, but also why they have so operated (even without positive statutory permission).

By analyzing the functional qualities of the commissions and the primary cases that have given those functions meaning, this Note differs from literature that examines commissions chronologically only. A functional approach results in a comprehensive understanding of the centrality of the laws of war within military commission function and precedent. It similarly indicates why, historically, commissions did not exercise jurisdiction over inchoate crimes that might today approximate conspiracy or material support of terrorism. This helps elucidate why even the “old wineskins” of international law are still suited to limit the conduct in the “new warfare” witnessed in the increasing terrorist threat,[75] making the expansion of military commission jurisdiction still improper for the newly proscribed offenses in the MCA. Finally, this Part argues that such offenses are federal domestic crimes and, therefore, are constitutionally impermissible to be tried by military commission.

B. The Development of the Law of War 

Robert Kaplan, writing near the end of World War II, wrote: “Under this law of war which is constitutionally recognized [in the “Define and Punish” clause], rules have been developed from decided cases, opinions from high ranking officials . . . and writings of recognized authorities,” which designate the extent of jurisdiction of military commissions.[76] There are several elements here worth picking apart.

First, despite the government’s oft-repeated argument that military commissions may try violations of the U.S. common law of war, it has “long been understood” that the law of war refers to the international law of war.[77] The weight of the record shows that the “U.S. common law of war” is actually international law, or is fully constituted by international law.[78] This is intuitive since military commissions are in part authorized by Congress’s power to “define and punish offenses against the law of nations,” which incorporates international law.[79] Even the U.S. Army Manuals provide that the law of war is comprised of customary international law and treaties since 1956.[80] Nonetheless, the two questions raised in the en banc grant specified “international law of war,”[81] so perhaps the government’s argument in this regard is moot.

Second, putting that matter aside, it is helpful to situate the emergence of the international law of war body. International humanitarian law, which governs relations between states during armed conflict, grows out of treaties[82] and custom. The latter is a type of common law; it is predicated on the “general and consistent practice” of nations.[83] This formation is key: states enact federal laws which are prosecuted domestically, and then, with consistent practice and coalescing over time, those laws become customary international law applicable during wartime. But Congress inverts this process in the MCA: it attempts to define a domestic law as a customary international norm, and then enforce it unilaterally on alleged war criminals. This is Congress anachronistically redefining international law in a self-serving manner. It is plain why one nation’s idiosyncratic view defining the law of war is not only delusional but also imprudent.

C. Historical Backdrop 

Though skewed since a promulgation of scholarship developed since President Bush’s M.O. in 2001, the sparsely-used military commissions possess a “long and troubled history” with “questionable origins and prior abuses.”[84] Tellingly, military commissions are not routinely used during wartime. Since World War II, they have not been used in any other war before the “War on Terror” “—not in Korea, Vietnam, the First Gulf War, nor any other context involving military [force].”[85]

Still, though invoked rarely, military commissions have been used in three situations historically.[86] The third type, which is “utterly different” from the former two[87] — which are used in territory where military law or military government has been established—is only “convened as an ‘incident to the conduct of war.”[88] These commissions are established only when there is a need to discipline enemies who, in their attempt to thwart the U.S. military effort, have violated the law of war.[89] Justice Stevens dubbed such tribunals “law-of-war commission[s].”[90] This is concededly the type of commission operating in the post-9/11 context. [91]  In other words, because law-of-war commissions are not established pursuant to martial law, to remain constitutional they carry a “far more serious subject matter jurisdiction”[92]—they must only try violations of the law of war.

Law-of-war military commissions formally evolved from an exception to the jurisdiction of court-martial, which was restricted to trying American soldiers for violations of the common law of war. To distinguish the law-of-war commissions from courts-martial, the commissions were called by separate names (until the Civil War, when the two names were subsumed into the title “military commission”).[93] It is relatively established that these Councils, instituted by General Winfield Scott to “suppress [alien combatants’] disgraceful acts abroad until Congress could be stimulated to legislate on the subject”[94] were the very first military commissions.

The second most significant change in military commission history was introduced by the Lieber Code.[95] The Lieber Code confirms the distinction between the tribunals declared under martial law and military commissions: “[i]n the armies of the United States the first [statutory law] is exercised by courts-martial; while cases which do not come within the Rules and Articles of War, or the jurisdiction conferred by statute on courts-martial, are tried by military commissions [common law of war].”[96] Modern day commissions (in the United States and abroad) can trace their lineage directly to the Lieber Code;[97] it was the first formal authority granting military commissions subject matter and personal jurisdiction to try violations of the laws of war, specifically.[98]

Thus, this law-of-war origin is the commissions’ distinguishing factor from other criminal prosecution. Professor Corn, in his article preceding the 2006 MCA,[99] supported the constitutionality of the Bush tribunals because they were a “distinct, legitimate, and historically recognized mechanism for enforcing the law of war.”[100] Congress, through the MCA, attempts to violate those very qualities—while deflecting its attempt to do so.

D. Statutory Backdrop 

Prior to the 9/11 military commissions, neither the Court nor Congress had ever addressed expanding the subject matter jurisdiction of the commissions beyond what the international law of war permitted.[101] Both Congress and the Supreme Court tied that jurisdiction directly to the law of war.[102] Thus, why the federal courts began binding the offense jurisdiction of the commissions to positive law—without addressing the necessary constitutional limits—is unclear.

The military commission is not explicitly mentioned in the Constitution, nor was it created by statute.[103]It did not evolve from specific Congressional grants; rather, it evolved as “a pragmatic gap-filler”[104] to the jurisdiction of courts-martial. In fact, Congress did not codify the tribunals until its 1916 revision of the Articles of War.[105] In that revision, Congress expanded the concurrent reach of courts-martial jurisdiction to include “any other person who by the law of war is subject to trial by military tribunalsFalse”[106] Notably, rather than tie the power to its own “Define and Punish” powers, Congress recognized the law of war as “a separate source of authority for military commissions.[107]

And because Congress did not want to mistake permitting the courts-martial to subsume military commission jurisdiction, it also included Article 15: “[t]he provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions . . . of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions . . . .[108] The specific reference to offenses against the law or war—not requiring further definition by Congress—undermines the assertion that positive law offenses are the only or primary precursor to military commissions’ subject matter jurisdiction.[109]

Another school of thought argues that, if Congress has not acted to define the jurisdiction, then the commission is able to draw on the law of war itself until Congress has done so.[110] Indeed, this is the interpretation that Justice Stevens partially exercised in Hamdan I.[111] But, while this construction appears valid, it avoids addressing whether Congress may go beyond constitutional limits when it so defines. Taking that authority to its limits would be reductio ad absurdum: it could subsume the entire jurisdiction of Article III. Thus, while Congress may authorize the establishment of a commission, the jurisdiction is still presumptively (and constitutionally) tethered to international-law offenses.

Most of the case law before 9/11 presumes such a distinction. In Ex Parte Quirin, a seminal military commission case from World War II, the Court permitted trial by military commission of six Nazi saboteurs.[112] The Court inferred Congressional authorization for the commissions in the Articles of War—a notoriously controversial analysis. The subject matter jurisdiction of the commissions, however, was explicitly tied to the law of war, which was then codified by Congress:

 Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.[113]

 And just four years later, the Court recognized this same distinction in Yamashita:

 The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is [also] an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war.[114]

 This makes it clear that Congressional authorization over military court jurisdiction is not without international-law limits; the law of war was a necessary and presumed prerequisite and operated as such even after Congress’s more explicit forms of codification.

 E. Necessary Preconditions 

With this backdrop, it becomes clear why the international law of war has always served as a constitutional ceiling on Congress’s authority to subject individuals to trial by military commission. Despite the Court’s failure to promulgate a specific law-of-war jurisdiction test,[115] the MCA’s extension over the triable offenses is diametrically opposed to one-hundred-and-fifty years of established history and precedent.[116]

William Winthrop—dubbed the Blackstone of military law—notes several “preconditions” that have developed for military commission jurisdiction in his influential treatise.[117] Because none of these prerequisites hold for the MCA’s extension of jurisdiction, the military commission as currently constructed by the MCA is “too attenuated from its jurisdictional foundation to be considered legitimate.”[118] I discuss Winthrop’s most pertinent functional preconditions here.

1.   Military necessity

The reason the framers permitted the use of military commissions (as exceptions to Article III courts) was to permit the Executive’s discretion for “military readiness” and “combat effectiveness” during war.[119]Enemy combatants posed an immediate and present danger; therefore, speedy detainment and trial was necessary for preserving successful warfare.

The first “Councils of War,” for instance, tried Mexican guerillas pursuing illegitimate modes of warfare—such as robbing and murdering civilians—that were definitively violations of the law of war. In the Civil War, General Halleck issued General Order Number 1, “which specifically authorized Union armies in Missouri to begin trying civilians for violations of the laws of war” in order to “counteract[] the activities of guerillas.”[120] Such offenses virtually prohibited the military from functioning on the battlefield; therefore, the commissions became essential to restraining such a threat. This necessity was the traditional understanding even until World War II, when the Court asserted in Quirin:

 An important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law[s] of war.[121]

This limitation is intuitive when considering the commissions’ original purpose: the need to dispense justice quickly to deter harm by enemy combatants captured on the battlefield.[122] This is why certain criminal procedures, such as the Miranda rights, do not apply to enemy combatants before military commissions; their application to international law crimes would be impractical and dangerous. But for inchoate offenses, i.e., conspiracy and material support of terrorism, “[t]he same urgency would not have been felt vis-à-vis enemies who had done little more than agree to violate the laws of war.”[123]

Further, the historical rationale for establishing the commissions is irrelevant for theses offenses. The detention and trial of “associated” forces to al Qaeda is not necessary to deter an immediate or present threat because their alleged offenses are not linked to an immediate attack. While, of course, the United States must act to prevent future acts of terrorism and protect the national security, the corresponding need to place those combatants before military tribunal is incongruous.

 2.   In the theatre of war

The military necessity requirement is intertwined with Winthrop’s requirement that military commissions “legally assume jurisdiction only of offences committed within the field of the command of the convening commander,”[124] or in the theatre of war. Once the emergency that permitted the commission’s use is over, the authority upon which they were based ceases, too.[125]

The second quasi-military commission in our history took place during the first Seminole War, when in 1819 General Jackson charged two European men with inciting, leading, and supplying weapons for Indian attacks against the United States—violations of the law of war. Some congressmen demanded to know whether there was absolute necessity in their execution, since the war had come to an end ten days before the execution.[126] Review of the legality of men’s execution “produced the longest debate ever to take place in the thirty-year history of the Congress.”[127] While the House “declined to disapprove” Jackson’s actions, Jackson was severely criticized by both houses of Congress, and he retreated from his contention that the trials were valid military commissions.[128] In the Civil War a few years later the Court in Ex Parte Milligan confirmed; “[w]e by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.”[129]

This requirement is also why law-of-war commissions may only exercise authority over aliens who have committed an unlawful act of war.[130] Combatants are privileged to murder and destroy property during wartime. When they are captured on the battlefield, they are entitled to treatment as prisoners of war (POWs). But combatants who fight “informal and illegitimate war” in violation of the law of war are not entitled to the same protections.[131] A war crime is conduct that falls outside the immunity provided to combatants by international law; this triggers an application of the laws of war to the situation and over the unprivileged belligerent.[132] The MCA’s application seems further removed here since it incorporates the view that all acts committed by “unprivileged belligerents”[133] are war crimes,[134] making the scope of the act enormously sweeping.

The precise boundaries of the “War on Terror” is outside the scope of this Note. Still, because Hamdan’s acts did not actually occur during wartime (since war was not “declared” until 2001), a plurality of the Court found his conduct misplaced for trial by military commission.[135] While this sets good precedent for detainees held at Guantanamo Bay for their participation in 9/11, the Administration has authorized military force on over indeterminable associated forces throughout the indefinite future. The D.C. Circuit may even permit the MCA to be applied retroactively.[136] Thus, future convictions will inevitably rely on Congress’s newly-defined offenses only tangentially connected to the War on Terror.

 3. For violations of the law of war

As demonstrated, the law of war is an irreducible predicate to every precondition and is itself one such commonly-understood and presumed prerequisite. Law-of-war commissions—as exceptional Article I tribunals—are constitutional only because they are limited to trying violations of the law of war, from which they originally sprang.

As a result, neither conspiracy nor material support for terrorism has ever been tried by a law-of-war military commission before 9/11—whether to combat a previous terrorist threat or its approximate.[137] This next Part will discuss in depth two defining characteristics of such limits on military commission jurisdiction, and how violations of the law of war differ from the federal crimes proscribed in the MCA.

a. Not inchoate, non-universal crimes

The Articles of War sharply distinguished between military crimes and conventional crimes committed by the military. Winthrop noted that military prosecution was “limited to offenses that had a ‘reasonably direct and palpable’ relationship to military training and discipline.”[138] Such offenses included both violations of the norms of battlefield behavior (e.g., willful killing of prisoners of war, willful killing of prisoners) and those dependent on the status or identity of those who commit them (e.g., spying, sabotage).[139] Accordingly, types of crimes traditionally adjudicated before a military commission included (1) complete, overt violations of the law of war, and (2) universally-defined violations of the law of war.

First, Winthrop argues that military commission jurisdiction “should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actual attempts to commit, and not in intentions merely.”[140] It is not enough to intend to violate the law of war unless the overt acts are themselves violations of the law of war, or if the acts constitute steps “sufficiently substantial” to qualify as attempt.[141] In the Civil War, General Henry Halleck’s commissions were used to counter a range of violent offenses—almost exclusively for acts of overt and extreme violence aimed at Union soldiers or infrastructure.[142] The Court also deliberately identified a complete, overt war crime in Ex parte Quirin, and, tellingly, never reached the conspiracy charge also at issue.[143]

Secondly, similar to the Court’s analysis of the cause of action in Sosa v. Alvarez-Machain[144] and its progeny in the Alien Tort Statute context, the offense must be universally recognized as a violation of the law of war.[145] The adjudicable violation in Ex parte Quirin was “by universal agreement and practice” recognized as an offense against the law of war: the defendants passed naval lines in civilian dress with hostile purpose.[146] And this case set the “high-water mark of military power to try enemy combatants for war crimes”[147]—clear and universal practice. Extending this principle to convictions for conspiracy and material support of terrorism is untenable: these are stand-alone offenses that, at least in the 9/11 context, are not linked to a complete or overt act of terrorism, and neither offense is included in the international body of law.[148]

The only crimes that could be comparable to the MCA’s newly triable offenses are, perhaps, aiding the enemy and spying.[149] But these are very different from the triable offenses at issue in the MCA. First, they are both widely considered international-law offenses. Second, the degree of culpability necessary to convict an individual of either crime is much higher than for conspiracy or material support of terrorism.

In oral argument for Hamdan I, Katyal reasoned that conspiracy and aiding and abetting were entirely different things: “One is a stand-alone-offense. And the [other] is a theory of how to prove a violation . . . . ‘Aiding and abetting,’. . . requir[es] a higher level of individual culpability.”[150] And even charges related to aiding and abetting—like civilians aiding the guerrillas in the Mexican-American war—were linked with but distinguished from other completed acts that were definitively war crimes.[151] Finally, aiding and abetting a declared violation of the law of war, understandably, may itself be considered an international-law crime.[152] Mere membership in a criminal group—even al Qaeda—does not result in a similar level of liability.[153]

The difference from spying is clear. From the beginning, and in accordance with the military necessity discussion below, spies were executed because it was the only means of “guarding against the mischief” they may cause if the information was released.[154] In fact, the very first traces of the use of a military commission exist in the trial and execution of a British Major during the American Revolution. Major John Andre was caught in civilian clothes near American lines carrying papers uncovering the defense of West Point, implicating a treasonous plot with General Benedict Arnold.  Though “[t]he conspiracy itself was not a violation of the laws of war,” spying historically was—and President George Washington approved Major Andre’s death sentence.[155]

b. Not federal crimes

Though violations of the law of war are frequently tried in federal court,[156] the reverse is never true: military commission must never try those accused of federal crimes when federal courts are operating.[157] Because the conspiracy and material support of terrorism offenses are not violations of the laws of war, they are by definition federal crimes within the purview of Article III courts.

The prohibition of trying inchoate federal crimes by military commission makes sense: federal courts are more apt and better equipped procedurally to charge combatants with preemptive crimes not linked to actual attack. Relatedly, military officials staffing the commissions are not better equipped or more competent to hear inchoate offenses—independent federal judges are. While individual nations may proscribe these offenses under their domestic laws, they may not—as Congress attempts—transform these laws into international law and require their adjudication before military commission. President Obama’s Detention Policy Task Force confirms that military commission jurisdiction is “substantially narrower than our federal courts,” because they are used “only to prosecute offenses against the law of war committed in the course of that conflict.”[158] This is for good reason, tied to the offense jurisdiction:

 [Prior military commission] cases have endorsed the use of military commissions, even when it was established that the rights afforded to individual defendants prosecuted before them were substantially different than those afforded criminal defendants in traditional domestic prosecutions. The consistent rationale running through these cases is linked to the purpose upon which these tribunals are founded: enforcement of the law of war.[159]

 The jurisdiction is also limited because trial by military commission necessarily exempts defendants from certain Constitutional protections in federal courts—an asset to some opponents of detainees’ Constitutional rights. Professor Vladeck argues that the 5th and 6th Amendments grand- and petit-jury trial protections serve as one such constitutional limit on military commissions’ jurisdiction.[160] He reasons that the right to jury does not limit military commission jurisdiction only because it is exercised over combatants charged with violations of the laws of war.[161]

Thus, even though the judicial system may be incompetent to review “battlefield justice,” the extension of the enemy combatant status to reach [federal] criminal acts . . . raises more profound questions.”[162] Many cast doubt on the Administration’s power to “step outside of the criminal justice system” and “hold citizens as enemy combatants for . . . acts that may be charged as federal crimes.”[163]

Even military lawyers have repeatedly clashed with Congress and government lawyers over the law-of-war commissions.[164] General Martins questioned whether it was “valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law[.]”[165] Before al Bahlul, Martins announced he would drop conspiracy from the list of charges in the Guantanamo cases and focus on “legally sustainable” ones, like attacking civilians.[166] But Attorney General Eric Holder and the Department of Justice continued to press the conspiracy charge against al Bahlul, which (as many expected) was fruitless.

Tracing the laws of war throughout the theoretical and empirical practice in the United States demonstrates a Constitutional and inextricable reliance on the laws of war as a necessary limitation on military commissions. But this limitation is necessitated not only by precedent and prudency; it is required and reinforced by an entrenched system of constitutional separation of powers.  I turn to this discussion now.

 

III. WHY SEPARATION OF POWERS? THE NEGLECTED BRANCH

 A. The Authority to Convene

 To quote Justice Stevens in Hamdan I, “trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure.”[167] The authority to establish military commissions is found in the Commander-in-Chief and war powers vested in the political branches. This establishment is fundamentally a constitutional exercise;[168] the commission must exist within Constitutional limits, or it risks posing a “[danger] to liberty if not confined within its essential bounds.”[169] This analysis must not be excised from the statutory framework created by the MCA and tacitly upheld by the Court in Hamdan I and Hamdan II.

The existence of war, and the concomitant expertise and efficiency arguments for military oversight, permits “exceptional” Article I jurisdiction otherwise properly vested in Article III. As discussed, the commissions are considered an appropriate forum only because of the military nature of their proceedings and “the nature of offenses subject to their jurisdiction—i.e., violations of the law of war”).[170] But the Court’s deference to the political branches and non-interference in upholding these limits jeopardizes our system of separation of powers, culminating in continued convictions of detainees at the hands of the U.S. military justice system.

This Part will discuss how the MCA subverts the authority structures traditionally required to establish a commission’s jurisdiction. Second, it will underscore the judiciary’s essential role in proscribing this subversion and in asserting Article III authority over offenses within its constitutional purview.

 1. The Executive branch

First, the MCA contravenes the authority placed in the Executive branch to convene a military commission. “[T]he military justice system [maintains] its discrete existence by its link to a core executive function”[171] in its assistance of the Commander-in-Chief duties.[172] The commissions are also permitted for expertise and efficiency purposes: members of the military are uniquely suited to judge law of war violations, and commissions as “an instrumentality for the more efficient execution of the war powers.”[173] Given these needs, the relevant constitutional question is not whether the military justice system should exist at all, but “what the limits of that system’s jurisdiction would be.”[174]

Sources confirm that the Commander-in-Chief authority is abused when extending beyond wartime contingencies. It is very different to assess guilt and mete out justice than it is to contain combatants from further illegal obstruction on the battlefield.[175] When the President moves outside of the constitutional minimums, Professors Katyal and Tribe argue, he or she has “moved outside the perimeter of his role as Commander in Chief of our armed forces and entered a zone that involves judging and punishing alleged violations of the laws . . . .”[176] When the triable offenses are not linked to the motivations for the commissions in the first place, this Note argues, their jurisdiction becomes increasingly suspect.

What is most troubling is that the “[m]ilitary tribunals represent the most extreme manifestation of the military’s emergence as a semi-autonomous system of governance.”[177] With unilateral Executive decisions made to detain alleged terrorists with the broad sweep of the MCA, the Administration could sweep up a large number of individuals at the mercy of a system contained entirely within the Executive branch. Such evolution is paradoxical, because it may damage the military system in the long term. Brigade General Mark S. Martins, Chief Prosecutor in the Office of Military Commission, argued that the legitimacy of the system itself would be preserved if it scaled back the charges triable before it.[178] Soon after, he joined al Bahlul’s defense counsel in asking the military commission judge to dismiss the stand-alone charge.[179]

 2. The Legislative branch

 Over time, the Supreme Court required Congress to authorize and ordain the establishment and jurisdiction of the military commissions.[180] The authority is found, primarily, through the “Declare War” clause and the “Define and punish offenses . . . against the law of nations” clause,[181] as well as its increasingly expansive authority to “constitute tribunals inferior” to the Supreme Court.[182] While Congress must authorize the jurisdiction of the tribunals, it must not authorize jurisdiction that is stricter than what the international law of war permits.

Before 9/11, Congress had never attempted to expand—rather than define and establish—the jurisdiction of the law-of-war commissions.[183]  Even if its “Define and Punish” powers are unlimited, the law of war operates as a constitutional ceiling on Congress’s authority to authorize military commission jurisdiction. As far back as 1865, the Attorney General declared that Congress could “prescribe how all such tribunals are to be constituted, what shall be their jurisdiction, and mode of procedure,” but could only “take cognizance of such offenses as the laws of war permit.”[184]

 3. The Judicial branch

 Missing from traditional jurisdictional analyses is Article III and the judicial branch. Historically, military courts were not subject to review from any constitutional court (unless via the writ of habeas corpus) because the traditional law-of-war commissions were deemed outside federal courts’ ordinary competence.[185] That changed when the Court began reviewing jurisdictional decisions as early as the Civil War.[186] Today, after the outcry over Bush’s tribunals, collateral review by the D.C. Circuit is required for decisions made by the CMCR.

The Supreme Court once claimed that it “played no role in [military law’s] development,” since, like state law, it exists separately from federal law.[187] But, in light of Erie and reverse-Erie doctrines, the contention that federal and state law operates in entirely foreign spheres is untenable.[188] As is obvious in the offense jurisdiction in the MCA, these systems inevitably conflict—when they do, the judiciary is the prescribed authority that must decide which trumps. First, Article III is implicated notwithstanding the political branches’ war powers in a system of checks and balances; every extension of military commission jurisdiction—specifically subsuming federal crimes—is a negation of Article III jurisdiction. The federal courts always retain the authority to determine their own jurisdiction.[189]

Secondly, the courts have always possessed and acted upon the authority to rule on the jurisdiction of military commissions[190] pursuant to Marbury v. Madison.[191] In fact, the only tribunals it has declared unconstitutional were based on lack of jurisdiction over the person or the offense.[192] For instance, in Milligan, the Court created a bright-line rule by looking at Article III jurisdiction and deciding that military tribunals were unconstitutional. It circumscribed the authority of Congress, holding that “it was not in the power of Congress to authorize” military tribunals where civilian courts were operating.[193]

Justice Scalia, in his dissent in Hamdan I, remarked: “Congress, not the Court, is the branch in the better position to undertake the ‘sensitive task’” of determining who decides the “validity of the conspiracy charge.”[194] I argue the opposite. Who will restrain the political branches from expanding military commission jurisdiction over insular minorities without the right to due process or representation before the law? Not the executive branch—they have already tried, both to restrict the passage of the MCA and to require civilian trial for defendants.[195] Congress subverted both efforts. The Court sits by not only as it watches the abuse, but as its own jurisdiction is stripped—and given the deference to statutory authority in Hamdan I—without limit.

B. The Essential Roles of the Judiciary

 1. To prevent abuse by the political branches

 The essential function of the judicial branch is to prevent abuse and illegality by other branches—notwithstanding the demands of war. The root of the judiciary’s role envisioned in The Federalist Papers and encapsulated in the checks-and-balances doctrine ensures that the government’s “several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”[196] This is “essential to the preservation of liberty.”[197] The courts’ non-intervention and deference exhibited in Hamdan II and al Bahlul, however, permits the abuse of the political branches’ powers during the period most susceptible to abuse.

As the majoritarian branches, the political branches are more apt to view liberties as fluid in times of hostilities.[198] Professor Glazier noted, “[w]hat we are seeing is that it’s easy for civilian members of the government, who are in power for a comparatively short time, to get tunnel vision on a particular case or situation[.]”[199] In the past, this deference to the political branches has resulted in severe harm. For instance, in Korematsu[200] the Supreme Court upheld the Executive internment of Japanese Americans that is now lauded as one of the most tragic decisions in the Court’s history. In other circumstances, however, the Court has responded when the political branches has acted to circumscribe rights. Arguably, “every generation has heard the siren’s call of those who encourage extrajudicial means to deal with contemporary enemies,” and, even so, the courts are properly equipped to uphold the Constitution.[201]

It is perhaps understandable why Congress expanded the scope of military commission jurisdiction. Some scholars note that a “more comprehensive list of available offenses would invariably facilitate prosecution before the commissions,” which avoids the evidentiary burdens required by Article III tribunals.[202] Because this expansion is beyond the rationale for constituting war tribunals in the first place (i.e., to try laws of war), it is possible that Congress intended to facilitate outcome-determinative results.[203] Additionally, so long as it remains the path of least resistance, the military commission will continue to be used—especially since the terrorist threat and its associated paranoia lends itself well to rapid punishment. Permitting this type of power sets a dangerous precedent for our understanding of structural constitutional guarantees and individual liberties during war.

Finally, it seems as if Congress has subverted traditional power dynamics by tying the Obama Administration’s hands with regard to ordering trial by military commission.[204] Professor Fidell laments: “Decisions about prosecuting detainees have become about what is feasible as opposed to what is rational. The constraints imposed by Congress are forcing officials into contorted positions which are particularly uncomfortable for military lawyers, who don’t want to get near the ‘third rail’ of destroying reciprocity.” [205] Maintaining reciprocity—i.e., how other countries treat future American detainees—is one such diplomatic function reserved for the Executive branch, which is being subverted.[206]

Another subversion threatens the Executive’s role in national security itself. For instance, with full knowledge of the shortcomings of military commissions, other countries are now less apt to extradite terrorists to the United States. In March 2013, trial by civilian courts was a “diplomatic assurance” before Italy extradited an alleged terrorist here.[207] Rather than protect national security as these military commissions were designed to accomplish, Attorney General Holder criticized, “[t]hose unwise and unwarranted [funding] restrictions undermine our counterterrorism efforts and could undermine our national security[.]”[208] The judiciary is the branch authorized to withhold such abuses.

2. To preserve Article III authority

Additionally, the essential function of the judiciary is to ensure Article III independence by upholding the supremacy of the Constitution, protecting individual rights and liberties, and maintaining a functional rule of law in the United States. While Article I jurisdiction has increased extensively to build up the Welfare State (for which the Court is also criticized for overly deferring), the Court must not compromise the rights to a fair and independent Article III trial for federal crimes. Thus, a more sustainable ground for annulling the MCA’s jurisdictional provisions is that it unconstitutionally violates non-Article III doctrine.

Historically, military commissions were an infrequently used exception to jurisdiction properly vested in the judiciary.[209] But the Court in Commodity Futures Trading Comm’n v. Schor[210] eliminated these formulaic categorizations; a tribunal may not unqualifiedly exist merely because it can be fit into one of these categories. Instead, the Court must determine whether the Article I tribunal unconstitutionally assumes the “essential attributes” of Article III power. Congress’s delegation must pass Schor’s already-too-lenient balancing test: Do the benefits of the legislative court (i.e., efficiency and expertise) outweigh the purposes and protections underlying Article III (i.e., fairness to the litigant by providing an independent judiciary and the role of Art. III in separation-of-powers)?

As a result of the MCA’s removal from the traditional prerequisites, non-Article III doctrine is offended. First, the proscribed offenses in the MCA are crimes within the exclusive purview of federal prosecution and are irrefutably not accepted by the international community. This approaches jurisdictional breadth over non-specialized offenses, which was condemned by the Court in Northern Pipeline.[211] Second, proximate guarantees of Article III independence are nonexistent. The tribunals are staffed entirely by military officials, governed by rules determined by the Department of Defense, and the procedures and evidentiary guarantees afforded to detainees indisputably favor the government.

Further, permitting Congress to define triable offenses contains no limiting principle, which was perhaps the underlying rationale for striking the Article I tribunal at issue in Northern Pipeline. In this “war,” there are no regular combatants entitled to prisoner-of-war protections—every combatant is an enemy, even a fifteen-year-old boy who kills a soldier on the battlefield.[212] Most dangerously, Congress may now unilaterally define triable violations and, together with the Executive, determine which and when detainees must be subject to military court jurisdiction.[213] Such abuse could usurp all federal court jurisdiction over foreigners tangentially connected to acts of terrorism. As Professor Turley argues, this extension “threaten[s] not only to pull the military further away from its core identity and functions, but to destabilize the tripartite system of government.”[214]

On the other side of the balance, the alleged military expertise and efficiency benefits the government claims are irrelevant to the stand-alone inchoate offenses, and together do not exceed the need for an independent Article III court (especially for federal crimes). Granted, federal courts review military commissions’ determinations as non-Article III doctrine requires. But this safeguard alone cannot cure the constitutional defects,[215] especially where the federal courts’ review is not meaningful.[216]

With both the original function and the original subject matter jurisdiction tweaked to advance political interests in the war against al Qaeda, the military commissions as permitted by the 2006 and 2009 MCA violate Article III. At the lowest Marbury ebb, the MCA is a masked attempt to punish future detainees for federal crimes without affording Article III guarantees, and, therefore, future convictions would require the Court to rubber-stamp unconstitutional legislative jurisdiction. At its highest ebb, the MCA may constitute an illegal delegation of Article III powers.

Thus, whether or not the Court feels competent to make “battlefield” decisions—which all agree that it does not—its primary competence is to decide jurisdictional questions that have implications on fundamental liberties and the Constitutional structure. That these matters are entirely left to Congress reflects not the Constitution but the “conclusory view of the Court itself.”[217] Pushing the Court to resume either separation-of-powers role would require a reevaluation of its proper place in the United States’ entirely “separate” system of justice.

 

 CONCLUSION

 The Military Commission Act’s expansion of military commission jurisdiction beyond the law of war invalidates the very reason for its use. Because its jurisdictional preconditions were abandoned, the commission appears to function to achieve “outcome-determinative” results: to convict and detain alleged low- and mid-level terrorists who Congress fears, however speculatively, are dangerous. Worse, however, is that the federal courts continue to avoid addressing the matter head-on; instead, they too tie jurisdictional authority to statute alone.

But two longstanding constitutional principles are clear: the federal courts have always ruled on military commission jurisdiction, and they have always tethered the jurisdiction to the law of war. Thus, when al Bahlul again comes before the D.C. Circuit (and perhaps ultimately the Supreme Court), the court should hold the following: the military commission may try enemy combatants for violations of the law of war pursuant to precedent and constitutional structure—otherwise, a federal court must try them for federal offenses with proper procedural and constitutional guarantees.

The Supreme Court stands at a crucial time for determining the fate of military commission jurisdiction in the indefinite future. It must resume its proper and constitutional role in engaging in that discussion.

 


      [1].       John Fabian Witt, Lincoln’s Code: The Laws of War in American History 101 (2012) (quoting Congressman Cobb).

      [2].       Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 16, 2001) (authorizing any member of al-Qaeda or persons associated with international terrorism to “be tried for violations of the laws of war and other applicable laws by military tribunals”).

      [3].       See, for e.g., Press Release, Eric H. Holder, Jr., U.S. Att’y Gen., Statement of the Attorney General on the Prosecution of the 9/11 Conspirators (Apr. 4, 2011), available at http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-110404.html; Presidential Statement on Signing the Department of Defense and Full-Year Continuing Appropriations Act, 2011, 2011 Daily Comp. Pres. Doc. 263 (Apr. 15, 2011), available at http://www.gpo.gov/fdsys/pkg/DCPD-201100263/pdf/DCPD-201100263.pdf; Jane Mayer, The Trial: Eric Holder and the Battle over Khalid Sheikh Mohammed, New Yorker, Feb. 15, 2010, at 52, available at http://www.newyorker.com/reporting/2010/02/15/100215fa_fact _mayer.

      [4].       Rosa Brooks, Let Them Go, Foreign Policy, March 28, 2013, at 1 , available at www.foreignpolicy.com/articles/2013/03/28/let_them_go (“These costs include the distinct possibility that our continued detention of thousands of Afghans could inspire just as many new Taliban recruits”); David Espo, Senate Votes to Block Funds for Guantanamo Closure, Huffington Post, (May 20, 2009, 9:34 PM ) (“Guantanamo is used by al-Qaida as a symbol of American abuse of Muslims and is fanning the flames of anti-Americanism around the world,” said Sen. Dianne Feinstein of California).

      [5].       The law of war is commonly understood as the international law of war. See infra Part II.B.

      [6].       10 U.S.C. § 948a-950t (2012) (codifying that military commissions can try any “unprivileged enemy belligerents” for “violations of the law of war and other offenses triable by military commission,” even though it expands what traditional law of war offenses include).

      [7].       While many of the crimes the MCA incorporates are arguably not violations of the law of war, for clarity and relevance sake this Note will focus on these two offenses.

      [8].       See, for e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-13 (2006), superseded by statute, Military Commissions Act of 2006, Pub.L. No. 109-366, 120 Stat. 2600 [hereinafter Hamdan I]; Hamdan v. United States, 696 F.3d 1238, 1248-53 (D.C. Cir. 2012) [hereinafter Hamdan II]. Even the government concedes that these offenses are not war crimes under the international law of war. See Hamdan II, 696 F.3d at 1241.

      [9].       Alan Rozenshtein, An Explainer on Hamdan II, Al-Bahlul, and the Jurisdiction of the Guantanamo Military Commissions, LAWFARE Blog, (Apr. 26, 2013, 10:30 AM), http://www.lawfareblog.com/2013/04/an-explainer-on-hamdan-ii-al-bahlul-and-the-jurisdiction-of-the-guantanamo-military-commissions/.

    [10].       Hamadan II, 696 F.3d  at 1238.

    [11].       Hamdan II, 696 F.3d at 1241. The relevant pre-2006 statute on the books at the time was 10. U.S.C. § 821, which authorized military commission jurisdiction over “offenders or offenses that by statute or by the law of war may be triable by such military commissions.”

    [12].       10 U.S.C. § 948a (authorizing jurisdiction over offenses that were “committed before, on, or after September 11, 2001”).

    [13].       Hamdan II, 696 F.3d at 1246.

    [14].       Order Granting En Banc Rehearing, al Bahlul v. United States, 2013 WL 297726 (No. 11-1324) (D.C. Cir. 2013) (April 23, 2013) [hereinafter Order Granting En Banc Rehearing].

    [15].       Id; see also Petition for Rehearing En Banc at 4-9, 11-13, al Bahlul, No. 11-1324 (arguing that the D.C. Circuit misconstrued the MCA and that the U.S. common law of war does permit military commission jurisdiction over conspiracy offenses).

    [16].       Some relevant exceptions are Stephen I. Vladeck, The Laws of War as a Constitutional Limit On Military Jurisdiction, 4 J. Nat’l Security L. & Pol’y 295, 299(2010) (tying commissions’ jurisdiction to 5th and 6th Amendment rights to trial by jury); Geoffrey Corn, Taking the Bitter With the Sweet: A Law of War Based Analysis of the Military Commissions, 35 Stetson L. Rev. 811, 814 (2006) (concluding that the Bush military commissions are inconsistent with the law of war, pre-MCA and pre-Hamdan I). 

    [17].       See Hamdan II, 696 F.3d at 1246 n.6 (rejecting international law as an authoritative limit on Article I powers); cf. al-Bihani v. Obama, 590 F.3d 868-69 (D.C. Cir. 2010) (declining to rehear the case en banc to determine role of international law-of-war principles in interpreting the Authorization for Use of Military Force (AUMF) where not dispositive to the merits).

    [18].       Cf. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2094 (2005) (“Since the international laws of war can inform the powers that Congress has implicitly granted to the President in the AUMF, they logically can inform the boundaries of such powers.”).

    [19].       U.S. Const. art. I, § 8, cl. 10.

    [20].       U.S. Const. art. I § 8, cl. 18.

    [21].       U.S. Const. art. I, § 8, cl. 10.

    [22].       Hamdan I, 548 U.S. 557, 570  (2006). To emphasize, Hamdan did not possess any “command responsibilities, play[] a leadership role, or participat[e] in the planning of any activity” in the September 11 attacks.

    [23].       Id. at 566.

    [24].       Id. at 613.

    [25].       George P. Fletcher, Hamdan Confronts the Military Commissions Act of 2006, 45 Colum. J. of Transnat’l L. 427, 439-40) (2007). (This was the only time the Court “delved deeply into [the military commission] concept that has challenged our understanding for over two hundred years.”).

    [26].       Hamdan I, 548 U.S. at 596-97 (emphasis added).

    [27].       Id. at 598-613.

    [28].       Id. at 601-02.

    [29].       Id. at 602.

    [30].       10 U.S.C. § 821 art. 21 (2006) (authorizing military commission jurisdiction over “offenders or offenses that by statute or by the law of war may be triable by military commissions”). 

    [31].       Hamdan I, 548 U.S. at 691.

    [32].       10 U.S.C. § 950(t)(25), (29).

    [33].       10 U.S.C. § 948c. 

    [34].       10 U.S.C. § 948d.

    [35].       10 U.S.C. § 950p(d)  (2006).

    [36].       Id.

    [37].       See supra text accompanying note 8.

    [38].       Supplemental Brief for Respondent at 3-4, al Bahlul, 2013 WL 297726 (No. 11-1324) (acknowledging that Congress’s stipulation “cannot be squared with the plain language of the 2006 MCA and Congress’s stated purpose in enacting it”).

    [39].       Exec. Order No. 13492, Review and Disposition of the Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, 74 Fed. Reg. 4898 (Jan. 22, 2009).

    [40].       Created by Exec. Order No. 13493, Review of Detention Policy Options, 74 Fed. Reg. 4901 (Jan. 22, 2009).

    [41].       Memorandum from the Detention Policy Force, Brad Wiegman and Colonel Mark Martins, to the Attorney General and the Secretary of Defense 2 (July 20, 2009), available at https://www.fas.org/irp/agency/doj/detention072009.pdf.

    [42].       Id. at 4.

    [43].       Prosecuting Terrorists: Civilian and Military Trials for Guantanamo and Beyond: Before S. Subcomm. on Terrorism and Homeland Sec. of the S. Comm. on the Judiciary, 111th Cong. 123 (2009) (statement of David Kris, Assistant Att’y Gen.); see also Legal Issues Regarding Military Commisisons and the Trial of Detainees for Violations of the Law of War: Before S. Comm. on Armed Services, 111th Cong. 9 (2009) (Statement of Jeh Charles Johnson, Gen. Counsel, Dept. of Defense) (“After careful study, the administration has concluded that appellate courts may find that ‘material support for terrorism’—an offense that is also found in Title 18—is not a traditional violation of the law of war. The President has made clear that military commissions are for law of war offenses. We thus believe it would be best for material support to be removed from the list of offenses triable by military commission, which would fit better with the statute’s existing declarative statement.”).

    [44].       10 U.S.C. § 950p(d) (2009) (“Because the provisions of this subchapter codify offenses that have traditionally been triable under the law of war or otherwise triable by military commission, this subchapter does not preclude trial for offenses that occurred before the date of the enactment of this subchapter[.]”) (emphasis added).

    [45].       Press Release, U.S. Dept. of Justice, Departments of Justice and Defense Announce Forum Decisions for Ten Guantanamo Detainees (Nov. 13, 2009), available at http://www.justice.gov/opa/pr/2009/November/09-ag-1224.html.

    [46].       Id.

    [47].       Jennifer K. Elsea, Cong. Research Serv., R40932, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court 3 (2013).

    [48].       United States v. Hamdan, 801 F. Supp. 2d 1247 (C.M.C.R. 2011) (en banc).

    [49].       United States v. al Bahlul, 820 F. Supp. 2d 1141 (C.M.C.R. 2011) (en banc).

    [50].       Id. at 1172.

    [51].       Of the seven convictions thus far by military commission, five have settled by plea bargain; al Bahlul and Hamdan are the only exceptions. By the Numbers, Miami Herald, http://www.miamiherald.com/2007/11/27/322461/by-the-numbers.html (last updated March 26, 2013).

    [52].       Hamdan II, 696 F.3d at 1241.

    [53].       Order to Vacate Petitioner’s Convictions by Military Commission, al Bahlul, 2013 WL 297726 (No. 11-1324). 

    [54].       Lyle Denniston, New Plea on War Crimes Scope, SCOTUSblog (Mar. 6, 2013, 12:03 AM), http://www.scotusblog.com/2013/03/new-plea-on-war-crimes-scope.

    [55].       See supra Part I. C.

    [56].       Hamdan II, 696 F.3d at 1241 (holding that the 2006 MCA did not “authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred”).

    [57].       See 10 U.S.C. § 950p(d) (2009) and § 950p(a)-(b) (2006). 

    [58].       Hamdan II, 696 F.3d at 1247-48 (emphasis in original).

    [59].       Petition for Rehearing En Banc at 4-5 al Bahlul, 2013 WL 297726 (No. 11-1324) (“Both the express terms of the statute and its history make clear that Congress intended to authorize prosecution of these [common law] offenses for conduct committed before 2006 . . . . This inversion of Congress’s finding [that Congress was not creating new war crimes] . . . is inconsistent with the statutory text.”); see also H.R. Rep. No. 109-664, Pt. 1, at 25 (2005) (stating that “the committee firmly believes that trial for crimes that occurred before the date of the enactment of this chapter” is permissible).

    [60].       Order Granting En Banc Rehearing, al Bahlul, 2013 WL 297726 (No. 11-1324). The Court ordered the parties to respond to two questions: (1) If the MCA does apply to pre-2006 conduct, then does the Ex Post Facto Clause still cover the Guantanamo detainees? (2) If the MCA does not apply to pre-2006 conduct, and therefore 10 U.S.C. § 821 applies, then was conspiracy a violation of the international law of war at the time of the offense? Id. Some speculate that the full court is thinking about holding the law may be more restrictive than it did in Hamdan II. Wells Bennett & Benjamin Wittes, Breaking News: D.C. Circuit Grants En Banc Rehearing in Al-Bahul, LAWFARE Blog, April 23, 2013, http://www.lawfareblog.com /2013/04/breaking -news-d-c-circuit-grants-en-banc-rehearing-granted-in-al-bahlul/.

    [61].       Hamdan II, 696 F.3d at 1248.

    [62].       Id. at 1253.

    [63].       Id. at 1246 (arguing that “Congress’s authority under the Define and Punish Clause is limited to proscribing offenses that are already illegal under international law”).

    [64].       Id. Al Bahlul’s response to the government’s petition for en banc rehearing acknowledged these narrow grounds: “Instead of pronouncing broadly foundational questions about the rule of law, this Court decided both cases [Hamdan II and al Bahlul] by applying over seventy years of settled law to facts.” [Response to Petition for Rehearing En Banc at 3, al Bahlul, 2013 WL 297726 (No. 11-1324) [hereinafter Response to Petition for Rehearing En Banc].

    [65].       Hamdan II, 696 F.3d at 1246 n.6. Judge Kavanaugh also argued that Congress has made non-law-of-war violations—i.e., spying and aiding the enemy—triable by military commission previously. Id. This is actually incorrect. See infra Part II.E.

    [66].       Petition for Rehearing En Banc at 2, al Bahlul, 2013 WL 297726 (No. 11-1324); see Jennifer K. Elsea, Cong. Research Serv., R41163, The Military Commission Act of 2009: Overview and Legal Issues 10-11 (2010); see also Shane Kadidal, The Government is Using al Bahlul v. US to Maintain the Political Status Quo, Jurist Hotline, Mar. 21, 2013, http://jurist.org/hotline/2013/03/shane-kadidal-guantanamo-bahlul.php (“The impact of the decisions in Hamdan II and al Bahlul, should they stand, will be great: according to my informal count, material support or conspiracy have been included as charges in 28 of the 30 charge sheets filed in the military commissions since the MCA passed.”).

    [67].       See Kadidal, supra note 66(“Remove those generic offenses and it becomes increasingly difficult for the relatively non-culpable mass of detainees, not cleared for release by the Obama administration, to find something plausible to plead guilty to. Without something to plead guilty to, these detainees will simply sit indefinitely in detention, as it has become practically impossible to win release through habeas corpus.”). Despite this trend, it does not follow that the rule of law governing commission’s jurisdiction should be ignored.

    [68].       Rozenshtein, supra note 9.

    [69].       Kadidal, supra note 66. Further, the political branches may opt into trial by military commission on a “case-by-case basis,” which is established on questionable and unclear legal criteria; the same goes for the level of due process afforded to the defendants. See Janet C. Alexander, Military Commissions: A Place Outside the Law’s Reach, 56 St. Louis U. L.J. 1147-48 (2012) (concluding that “[s]uch a system is completely contrary to the rule of law”). Often, these decisions turn on when it is most convenient for the government, i.e., whether the government has sufficient evidence to convict in federal court or not.

    [70].       Vladeck, supra note 16, at 298-99 n.22. In the past, the Supreme Court even disclaimed itself from creating bright-light rules for military commission jurisdiction. Ex Parte Quirin, 317 U.S. 1, 45-46 (1942) (“We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war.”).

    [71].       See Order Granting En Banc Rehearing, supra note 60 (Question 1).

    [72].       Id. (Question 2).  

    [73].       As I argue, there is no such thing as a U.S. common law of war, see infra Part II.B; secondly, conspiracy has never before been tried by a military commission, see infra Part II.E(3).  

    [74].       Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of Military Governance In a Madisonian Democracy, 70 Geo. Wash. L. Rev. 649, 768 (2002).

    [75].       Al-Bihani v. Obama, 590 F.3d 866, 882 (D.C. Cir. 2010) (Brown, J., concurring), reh’g denied en banc, 619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 1814 (2011).

    [76].       Harold L. Kaplan, Constitutional Limitation on Military Commissions, 92 U. Penn. L. Rev. 272, 272 (1944) (citation omitted).

    [77].       Hamdan II, 696 F.3d at 1245; see also Hamdan I, 548 U.S. at 603; Ex parte Quirin, 317 U.S. 1, 27-30, 35-36 (1942); Response to Petition for Rehearing En Banc, supra note 66, at 4 (“The government offers no reason to believe that the full court, or any court, is likely to accept this argument. This Court’s rejection of the ‘U.S. law of war’ was concise and unanimous.”).

    [78].       Alexander, supra note 69, at 1143.

    [79].       Ex parte Quirin, 317 U.S. at 28  (“Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war….”). Id. at 30. Despite a modern rejection of natural law, the Constitution did contemplate that there was a “law of nations;” incorporating the international law of war is what the framers perceived they were doing.

    [80].       U.S. Dep’t of Army, Field Manual 27-10, The Law of Land Warfare sect. III para. 505(e) (1956).  

    [81].       Order Granting En Banc Rehearing, supra note 14.

    [82].       Neither conspiracy nor material support are acknowledged in international treaties.

    [83].       Restatement (Third) Of Foreign Relations Law Of The United States § 102(2) (1987).

    [84].       Turley, supra note 74, at 719-20.

    [85].       Alexander, supra note 69, at 1118.

    [86].       Bradley & Goldsmith, supra note 18, at 2132; Hamdan I, 548 U.S. at 595-96 (“First, they have substituted for civilian courts at times and in places where martial law has been declared . . . . Second, commissions have been established to try civilians ‘as part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function.’” (citation omitted)); W. Winthrop, Military Law and Precedents 822, 836-41 (2d ed. 1920). On the other hand, some scholars argue that the distinction is not as clear as this three-part framework. While this may be true, of course, the formal (and, I contend, constitutional) distinction exists. It has been approved by a plurality of the Supreme Court.

    [87].       John M. Bickers, Military Commissions Are Constitutionally Sound: A Response to Professors Katyal and Tribe, 34 Tex. Tech. L. Rev. 899, 902 (2003). This means that certain precedents, e.g., Ex parte Milligan, 71 U.S. 2, 121 (1866) (declaring unconstitutional a citizen’s trial by military commission where civilian courts were still operating), are actually not here relevant. The Civil War commissions were appropriately used because military law was established in the south; this is why the military commissions in the north (where civilian courts were open) were held unconstitutional.

    [88].       Ex parte Quirin, 317 U.S. at 28-29; Yamashitav. Styer, 327 U.S. 1, 11 (1946) (“An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.”).

    [89].       Hamdan I, 548 U.S. at 596(quoting Ex parte Quirin, 317 U.S. at 28-29).

    [90].       Id. at 597. 

    [91].       Guantanamo Bay Naval Base is occupied under treaty rights, not military law.

    [92].       Bickers, supra note 87, at 912.

    [93].       Id. at 908-09. First, General Washington tried a captured British spy during the American Revolution before a “Board of Officers.” Second, when necessity required during the Mexican-American War, military officials were permitted to try Mexican guerrillas before “Councils of War” according to the “known laws of war.” Witt, supra note 1, at 126.

    [94].       Gideon M. Hart, Military Commissions and the Lieber Code: Toward a New Understanding of the Jurisdictional Foundations of Military Commissions, 203 Mil. L. Rev. 1, 32 (2010) (citing Louis Fisher, Military Tribunals And Presidential Power 33 (2005)).

    [95].       David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5, 41 (2005).

    [96].       War Dept., General Order No. 100 (Apr. 24, 1863) [hereinafter Lieber Code], in Richard Shelly Hartigan, Lieber’s Code and the Law of War 45-71 (1983).

    [97].       See Hart, supra note 94, at 36-38.

    [98].       Id. at 3. Some scholars note that such an extension of jurisdiction was problematic—and that even formal authority to try violations of the law of war was an extension of what was currently being practiced. See id. at 68-69 (arguing that the Lieber Code expanded military commission jurisdiction over violations of the law of war, which was before restricted to violations of military orders or crimes committed by American soldiers).

    [99].       Corn, supra note 16, at 814.

  [100].       Id. at 823 (emphasis added).

  [101].       See infra Part II.E.

  [102].       See infra Part II.E.

  [103].       Hamdan I, 548 U.S. at 590. The Constitutional authority for the commissions is discussed below.

  [104].       David Glazier, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission, 89 Va. L. Rev. 2005, 2010 (2003).

  [105].       Fletcher, supra note 25, at 435 (“Whenever and wherever they may have originated, the tribunals functioned until 1916 as institutions of military common law—without mention in the federal statutes”).

  [106].       Act of Aug. 29, 1916, An Act Making appropriations for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes, ch. 418, art. 12, 39 Stat. 619, 652 (1917) (emphasis added).

  [107].       Captain Brian C. Baldrate, The Supreme Court’s Role in Defining the Jurisdiction of Military Tribunals: A Study, Critique, & Proposal for Hamdan v. Rumsfeld, 186 Mil. L. Rev.1, 50 (2005).

  [108].       Act of Aug. 29, supra note 104, at 653. Article 15 is also identical to later text codified 10 U.S.C. section 821 in 1950, after World War II.

  [109].       I do not argue that the authority to establish military commissions’ jurisdiction rests in the President’s inherent power. I do argue, however, that military commissions try violations of the law of war, and therefore bring in the law of war.

  [110].       Kaplan, supra note 76, at 272 (“For the great mass of offenses which are not covered by or provided for in the Articles of War and which might be referred to the military commission, we must look to the law of war.”).

  [111].       See Hamdan I, 548 U.S at 601-02.

  [112].       Ex parte Quirin, 317 U.S. at 1.

  [113].       Id. at 28 (emphasis added).

  [114].       Yamashita v Styer,  327 U.S. 1, 11 (1946) (emphasis added); see also id. at 10 (holding that the commissions were an “appropriate tribunal for the trial and punishment of offenses against the law of war”); Id. at 9. (confirming that the commissions possessed jurisdiction “only to try the purported charge of violation of the law of war committed by petitioner”).

  [115].       Ex parte Quirin, 317 at 45-46 (“We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war”).

  [116].       Response to Petition for Rehearing En Banc, supra note 64, at 5: (“The government is therefore asking this Court to convene en banc so that it can rehear an argument that is so at odds with settled law and so lacking in textual support that it has been rejected, in one form or another, by every judge to consider it.”).

  [117].       See generally Winthrop, supra note 86. The government agrees these describe accurately the law governing the commissions. Hamdan I, 548 U.S. at 598.

  [118].       Corn, supra note 16, at 814.

  [119].       See Hamdan I, 548 U.S. at 590 (finding that the military commissions were “born of military necessity”).

  [120].       Hart, supra note 92, at 15-17.

  [121].       Ex parte Quirin, 317 U.S. at 28-29.

  [122].       S.Rep. No. 130, 64th Cong., 1st Sess., 40 (1916).

  [123].       Hamdan I, 548 U.S. at 607.

  [124].       Winthrop, supra note 84, at 836; see also Madsen v. Kinsella, 343 U.S. 341, 346 (1952) (“[s]ince our nation’s earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war.”).

  [125].       Kaplan, supra note 76, at 273.

  [126].       Witt, supra note 1, at 100.

  [127].       Id. 

  [128].       Glazier, supra note 93, at 30.

  [129].       Ex parte Milligan, 71 U.S. at 140.

  [130].       See Winthrop, supra note 84, at 838 (stating that military commissions are permitted to try only “[i]ndividuals of the enemy’s army who have been guilty of illegitimate warfare or other offences in violation of the laws of war”).

  [131].       Witt, supra note 1, at 114. But this was not always the traditional understanding. William Blackstone wrote that when an individual violated the laws of nations, “it was the obligation of the violator’s own government to see to it that he was punished.” Id. at 128. Rather than criminal punishment, diplomacy and retaliation was the mechanism for responding to such violations.

  [132].       Corn, supra note 16, at 836. 

  [133].       I.e., combatants not entitled to ordinary prisoner-of-war protections or immunities.

  [134].       In the U.S. war against terror, there are no “privileged” belligerents, not even Omar Khadr, who used a grenade to kill a soldier on the ground in Afghanistan. Alexander, supra note 69, at 1144-45 (concluding that only one Guantanamo detainee—Abd al-Rahim al Nashiri, who attacked the U.S.S. Cole in 2000—had been charged with an actual violation of the law of war).

  [135].       Hamdan I, 548 U.S. at 597-600 (considering time and place deficiencies). 

  [136].       Order Granting En Banc Rehearing, supra note 14.

  [137].       Hamdan II, 696 F.3d at 1251; Hamdan I, 548 U.S., at 604 & n.35 (finding that the 19th-Century trial of the “Lincoln Conspirators” was not an exception because they were charged with Lincoln’s assassination).

  [138].       Turley, supra note 74, at 692.

  [139].       Bickers, supra note 87, at 922-23.

  [140].       Winthrop, supra note 84, at 841.

  [141].       Id.

  [142].       Hart, supra note 94, at 17.

  [143].       It is telling that the conspiracy charge was treated separately from the other clearly defined war crimes the saboteurs committed. Ex parte Quirin, 317 U.S. 1.

  [144].       Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).

  [145].       Id.; see also (“[W]e think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”); Hamdan II, 696 F.3d 1238, 1250 n.6 (2012) (Kavanaugh, J., concurring) (“Therefore, as the Supreme Court required in an analogous context in Sosa, and as the plurality suggested in Hamdan, imposing liability on the basis of a violation of ‘international law’ or the “law of nations” or the “law of war” generally must be based on norms firmly grounded in international law.”).  Id. at 1251 n. 10.

  [146].       Quirin 317 U.S. at 30, 38 (“The offense was complete when with that purpose they entered—or, having so entered, they remained upon—our territory in time of war without uniform or other appropriate means of identification.”); see id. at 35–36 (“This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.”); see also Hamdan I, 548 U.S. at 606 (finding that “[i]f anything, Quirin supports Hamdan’s argument that conspiracy is not a violation of the law of war”).

  [147].       Hamdan I, 548 U.S. at 597.

  [148].       For conspiracy, see id. at 603-13; see also Winthrop, supra note 84, at 839-40 (excluding conspiracy from his list of offenses in violation of the law of war). For material support of terrorism, See Hamdan II, 696 F.3d at 1248-53 (concluding that “[i]n short, neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime”); see also Statement of David Kris, supra note 42.

  [149].       See Hamdan II, 696, F.3d at n.6.

  [150].       Transcript of Oral Argument at 23-25, Hamdan I, 548 U.S. 557 (No. 05-184), available at http:// www.supremecourtus.gov/oral_ arguments/argument_transcripts/05-184.pdf.

  [151].       Elsea, supra note 67, at 14.

  [152].       Hamdan was not charged with aiding and abetting, arguably, because the government did not have proof for this higher level of culpability. See Hamdan II, 696 F.3d at 1251-52.

  [153].       Fletcher, supra note 25, at 446.

  [154].       Witt, supra note 1, at 127.

  [155].       Id. at 25.

  [156].       Elsea, supra note 67, at 7 (citing Fact Sheet, Statistics on Unsealed International Terrorism and Terrorism-Related Convictions, Dept. of Justice). Although the Fact Sheet was originally posted on the Department of Justice’s website, it no longer appears to be available. See also Fact Sheet: Trying Terror Suspects in Federal Courts, Human Rights First (last accessed April, 2013) available at http://www.humanrightsfirst.org/wpcontent/uploads/pdf/ USLS-Fact-Sheet-Courts.pdf (finding that federal criminal courts have convicted nearly 500 individuals on terrorism-related charges since 9/11 from the same disappeared fact sheet).

  [157].       See, e.g., Ex parte Milligan, 71 U.S. 2.

  [158].       Memorandum from the Detention Policy Task Force, supra note 41, at 3 (“The principal factors that make military commissions a distinct and appropriate forum lie in the military character of the proceedings and the nature of the offenses subject to their jurisdiction (i.e. [sic] violations of the law of war).”).

  [159].       Corn, supra note 16, at 822-23.

  [160].       Vladeck, supra note 16, at 300.

  [161].       Id. at 317-18 (“[T]he rights to grand jury indictment and trial by petit jury . . . included a categorical exception for ‘offenses committed by enemy belligerents against the law of war’”) (quoting ex Part Quirin, 317 U.S. 1 (1942)). 

  [162].       James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. l. rev. 643, 758 (2004).

  [163].       Id. at n.540.

  [164].       Charlie Savage, Who Decides the Laws of War?, N.Y. Times, January 26, 2013.

  [165].       Id. 

  [166].       Charlie Savage, U.S. to Press Fight of Detainee’s Appeal, N.Y. Times, Jan. 9, 2013.

  [167].       Hamdan I, 548 U.S. at 567.

  [168].       Id. at 591 (determining what would “justify the establishment and use of penal tribunals not contemplated by Article I, § 8, and Article III, § 1, of the Constitution unless some other part of that document authorizes a response to the felt need”).

  [169].       Reid v. Covert, 354 U.S. 1, 23-24 (1957); see Ex parte Quirin, 317 U.S. 1, 29 (1942) (“We must therefore first inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and if so whether the Constitution prohibits the trial. We may assume that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury.”).

  [170].       Memorandum from the Detention Policy Task Force, supra note 41 at 3.

  [171].       Turley, supra note 74, at 665.

  [172].       Winthrop, supra note 86, at 49.

  [173].       Id. at 831.

  [174].       Vladeck, supra note 16, at 301.

  [175].       Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L. J. 1259, 1270 (2002).

  [176].       Id.

  [177].       Turley, supra note 74, at 766.

  [178].       Savage, supra note 164.

  [179].       Rozenshtein, supra note 9.

  [180].       See Hamdan I, 548 U.S. at 645 (“Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them.”).

  [181].       The extent of this power has been widely debated. The general consensus is that Congress may legislate on the margins, if at all, beyond “describ[ing]” the international law of war.

  [182].       U.S. Const. art. I, § 8, cl. 9.

  [183].       Vladeck, supra note 16, at 298 & n.22 (finding that the Court had no occasion to reach the question of imposing stricter limits than the law of war proscribed before 2006, when Congress enacted the MCA).

  [184].       Military Commissions, 11 Op. Att’y Gen 297, 300-01 (1865).

  [185].       Winthrop, supra note 86, at 50.

  [186].       Ex parte Milligan, 71 U.S. at 2.

  [187].       Turley, supra note 74, at 690 (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)). 

  [188].       Id. at 682. (Even “[d]eference to the military . . . masks a more active role in shaping [the military justice] system.”)

  [189].       See generally Ex parte McCardle, 74 U.S. 506 (1868).

  [190].       See Ex parte Milligan, 71 U.S. 2; Ex parte Quirin, 317 U.S. 1; United States v. Grimley, 137 U.S. 147, 150 (1890) (for the first 150 years of American history, federal court review of military courts was predicated on “the single inquiry, the test [for] jurisdiction.”).

  [191].       Marbury v. Madison, 5 U.S. 137, 138 (1803).

  [192].       Baldrate, supra note 107, at 4-5.

  [193].       Ex parte Milligan, 71 U.S. at 136.

  [194].       Hamdan I, 548 U.S. at 655.

  [195].       In 2011, Attorney General Eric Holder, defended the use of civilian trials rather than military commissions: “So long as I am privileged to serve as Attorney General, I will defend the exclusive right of the Executive Branch to determine appropriate venues and mechanisms for all criminal trials. And I will continue to point out one indisputable fact, which has been proven repeatedly, during this Administration and the previous one: in disrupting potential attacks and effectively interrogating, prosecuting, and incarcerating terrorists—there is, quite simply, no more powerful tool than our civilian court system.” Eric Holder, Att’y Gen., Speech at the American Constitution Society Convention (June 16, 2011), available at http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-1106161.html.

  [196].       The Federalist No. 51 (Alexander Hamilton or James Madison).

  [197].       Id.

  [198].       Turley, supra note 74, at 767.

  [199].       Savage, supra note 164.

  [200].       Korematsu v. United States, 323 U.S. 214 (1944).

  [201].       Turley, supra note 74, at 767.

  [202].       Geoffrey S. Corn, Questioning the Jurisdictional Moorings of the Military Commissions Act, 43 Tex. Int’l L.J. 1, 35 (2007).

  [203].       Id. at 36.

  [204].       Jim Garmone, Holder Refers 9/11 Co-Conspirators to Military Tribunal, Dept. of Defense Press Release, Apr. 4, 2011 (reporting that Holder said Congress “t[ook] the decision from his hands”), available at http://www.defense.gov/news/newsarticle.aspx?id=63424.

  [205].       Savage, supra note 164.

  [206].       In fact, the United States has been a critic of other countries when they used fora other than regularly constituted civilian courts for conducting trials, even for suspected terrorists. In the last decade, the U.S. has criticized Burma, China, Colombia, Egypt, Kyrgyzstan, Malaysia, Nigeria, Peru, Russia, Sudan, and Turkey for this practice. See Fact Sheet: Past U.S. Criticism of Military Tribunals, Human Rights Watch  (Nov. 28, 2001), available at http://www.hrw.org/news/2001/11/28/fact-sheet-past-us-criticism-military-tribunals (on file with the Virginia Law Review Association); see also Savage, supra note 162 (“But how the United States handles these cases is going to influence how other countries in future wars treat captured Americans.”).

  [207].       Robert Chesney, A New Al Qaeda Prosecution in New York, LAWFARE Blog, (Mar. 20, 2013), http://www.lawfareblog.com/2013/03/a-new-al-qaeda-prosecution-in-new-york.

  [208].       Chris Good, A Hamstrung Eric Holder Blasts Critics of Civilian Trials, The Atlantic, Apr. 4, 2011; see also Paige Lavender, Eric Holder Defends Civilian Trials for Terrorists, Huff. Post (June 16, 2011, 9:54PM), http://www.huffingtonpost.com/2011/06/16/eric-holder-civilian-trials-terrorism_n_878750 .html.

  [210].       Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986).

  [211].       Northern Pipeline Construction Co., 458 U.S. at 66.

  [212].       See supra note 134 and accompanying text.

  [213].       See supra note 69 and accompanying text.

  [214].       Turley, supra note 72 at 768.

  [215].       See Commodity Futures Trading Comm’n, 478 U.S. 833 .

  [216].       See supra Part I. C.

  [217].       Turley, supra note 74, at 687.

INTERNATIONAL EXTRADITION AND THE AMANDA KNOX CASE: WHAT IS A “CONVICTION” ANYWAY?

 Rick Gene Boepple Jr.*

 

I.      INTRODUCTION

II.   THE UNITED STATES’ EXTRADITION PRACTICES

A.      The United States’ law on the Extradition of American Citizens: Treaties Govern

B.      The Procedure for Extraditing Wanted Persons from the United States

C.      T.I.A.S. 10837: Extradition between the United States and Italy

III.    ITALY v. THE UNITED STATES: COMPARING AND CONTRACTING CRIMINAL JUSTICE SYSTEMS

A.      The American Principle of “Double Jeopardy”

B.      Italy’s Criminal Procedure

i.      The Investigation Phase: indagini preliminari

ii.      The Preliminary Hearing: udienza preliminare

iii.      The Trial Phase: dibattimento

iv.      The Italian Appellate System

C.      The Amanda Knox Trial

i.        Background Information

ii.      The Evidence

iii.      Amanda Knox’s Appeal

IV.    ANALYSIS   

A.      What Do “Conviction” and “Acquittal” Mean in Italy?

B.      Apply United States Extradition Laws: Will Amanda be extradited to Italy?

C.       Possible Repercussions on Foreign Relations

V.   CONCLUSION

 

Abstract

Americans have always expressed fond memories about their travels to Italy—exceptional cuisine, superb wine, the Tuscan hills and the Amalfi coast. . . But recently, in light of the international media sensation over the Amanda Knox murder case, there has been a slight but noticeable shift in their attitudes. While these individuals still hold on to their romantic imagery, they now have a glimpse into a cultural aspect of Italy that most Americans had no previous knowledge about; the Italian criminal justice system.

With the trial court’s conviction, the appellate court’s reversal, and the subsequent order for a retrial by Italy’s Highest Court, a bifurcated outlook over the Amanda Knox murder case has emerged. Many Europeans hold the opinion that Amanda Knox is a sexually deviant individual who committed and got away with a heinous murder.[1] On the other hand though, many Americans believe she is an innocent, young woman who suffered at the hands of a corrupt, flawed, and inferior foreign criminal justice system.[2] Conflicting views like these will always be a hurdle in the field of comparative law when examining two distinctly different penal systems and international extradition between the two. By examining and analyzing the Italian criminal justice system and the possible extradition issues that may arise under it with regards to the Amanda Knox case, this paper aims to lower that hurdle.

The Italian criminal justice system is a unique blend of an inquisitorial-type system, similar to those found in France and Germany, and an adversarial-type system like our own American counterpart.[3] Utilizing the Amanda Knox case as a guiding example, this article aims to explore the comparative law issues the Italian criminal justice system poses in the arena of international extradition from the United States. In its analysis, this paper explores the legal understanding of “conviction” and “acquittal” in the United States versus the understanding of those terms in Italy, and how they comport with the United States’ “Double Jeopardy” doctrine.[4]

Since Gonzaga Law School offers a summer study abroad program in Florence, and Amanda Knox is from Seattle and attends the University of Washington, her legal dilemma in Italy felt like an appropriate topic for the Gonzaga Journal of International Law. This paper hopes to provide an educational insight into the workings of International Extradition practices by the United States and the challenges it faces when it involves a different and unique criminal justice system like that in Italy.

  

I.   INTRODUCTION

In 2011, after serving approximately four years in an Italian prison for the murder of Meredith Kercher, an Italian appellate court reversed Amanda Knox’s conviction and set her free.[5] Following the appellate court’s decision, the Seattle native was practically carried out of the courtroom, her eyes flooded with tears.[6]Amanda Knox’s murder trial and subsequent conviction received widespread international media attention, attention that has recently been renewed after the Italian Court of Cassation, Italy’s highest court, reversed the appellate court decision and ordered a retrial.[7] The Court of Cassation’s decision has left many lingering questions with those unfamiliar with international law and the Italian criminal justice system.[8]Probably the most frequent question by Americans though, given the adherence of the United States to the legal doctrine colloquially known as “Double Jeopardy,”[9] is whether Amanda Knox could be extradited back to Italy to serve out a murder sentence.

Part II of this article will review the current international extradition practices in the United States. Specifically, it will examine the policies and procedures behind extraditing American nationals to foreign nations where they are charged with criminal offenses. The section concludes by focusing on the current extradition treaty binding the United States and Italy. Part III of this article examines the American “Double Jeopardy” doctrine, tracing its development throughout history, and giving a broad overview of the Italian criminal justice system in comparison. Subsection C of Part III then recounts Amanda Knox’s murder trial and aims to provide an explanation for the public’s response to her conviction, reversal, and eventual reversal and remand. Finally, utilizing the background of Italy’s criminal justice system and the extradition laws of the United States, Part IV will analyze in depth the question of Amanda Knox’s extradition, the comparative law issues it presents, and the possible repercussions on United States’ foreign relations. This paper will argue that, despite the United States’ adherence to the constitutional principle of “Double Jeopardy,” the meaning of “acquittal” and “conviction” under the Italian criminal justice system may create a perplexing situation for United States’ officials if Italy seeks for Knox’s extradition. The resolution of her extradition is not necessarily “clear-cut.”

  

II.THE UNITED STATES’ EXTRADITION PRACTICES

 A. The United States’ Law on the Extradition of American Citizens: Treaties Govern

Federal law provides:

If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met.[10]

According to the United States Attorneys’ Criminal Resource Manual, international extradition is defined as, “the formal process by which a person found in one country is surrendered to another country for trial or punishment.”[11]While there exists some guidance under Title 18 of the United States Code,[12]the federal government’s law for the procedures of international extradition of American citizens is governed predominately through treaties made with foreign governments.[13]This is not to say the treaty is unable to exempt the contracting nations’ own citizens from extradition. However, absent a provision stating otherwise, the United States may not refuse to extradite fugitives wanted by foreign nations simply on the basis that they are American citizens.[14]“[Therefore], a treaty mandate to extradite ‘persons’ without exception requires the extradition of American citizens.”[15]

Moreover, federal law affords the Secretary of State a great deal of discretion in extradition procedures absent a treaty or a provision in a treaty exempting United States citizens.[16] This means the Secretary of State may make the decision to extradite an American citizen if “national interest dictates.”[17] Despite this wide latitude in discretion bestowed upon the Secretary of State, the United States’ government cannot surrender American citizens unless the treaty contains a “positive grant of authority” permitting it to do so.[18] With this premise, if the treaty contains limiting extradition language such as “neither [country] shall be bound to deliver up its own citizens,” and also lacks the requisite grant of authority language, the United States must deny a request to extradite a American citizen based wholly on the fugitive’s citizenship.[19] An example of limiting extradition language with the proper grant of authority allowing for the Secretary of State in his or her discretion to extradite a U.S. national is “neither of the contracting parties shall be bound to deliver up its own citizen under the stipulations of this [treaty], but the executive authority of each shall have the power to deliver them up, if, in its discretion, it is deemed proper to do so.”[20]

 B. The Procedure for Extraditing Wanted Persons from the United States

When a foreign government makes a formal request for extradition to the U.S. Department of State, such requests are forwarded to the Office of International Affairs’ (“OIA”) Criminal Division for review.[21] After reviewing the sufficiency of each request to ensure it complies with federal law and/or the applicable treaty, the OIA hands the matter over to the United States Attorney’s Office, which then seeks to obtain an arrest warrant from a federal magistrate or district judge.[22] Additionally, the federal government opposes bond for all fugitives arrested for extradition.[23]However, all fugitives arrested are entitled to a hearing, which may be waived, before the court that issued the warrant, where the judge reviews the matter and determines if the government may be allowed to extradite the person.[24] If the court finds the fugitive is subject to extradition, it may issue a non-appealable order to the Secretary of State allowing for extradition.[25]The Secretary of State may then choose whether to extradite the fugitive pursuant to his or her own discretion mentioned above.[26]If the court issues an order for extradition, the fugitive may nevertheless petition for a writ of habeas corpus to the district court for a stay on extradition.[27]The district court’s decision whether to issue the writ is appealable by the wanted individual.[28]

 C. T.I.A.S. 10837: Extradition between the United States and Italy

 As recent as 2002, the United States has entered into bilateral extradition treaties with 109 foreign nations, Italy being one of them.[29]President Ronald Reagan signed the treaty with Italy on October 13, 1983, and it entered into force on September 24, 1984.[30]This treaty obligates both Italy and the United States to extradite those persons found in their respective countries who are sought either to stand trial for an offense, or who have already been sentenced for an offense.[31] In order for the crime to be an extraditable offense however, both Italy and the United States must recognize the act or conduct as punishable under their respective laws.[32]Additionally, the treaty contains no limiting extradition language, meaning neither country shall deny an extradition request on the basis that the fugitive is a citizen of the “Requested Party.”[33]

Another important aspect of this treaty (indeed probably the most important considering the criminal proceedings taken against Amanda Knox) is the “Non Bis in Idem” clause contained in Article VI.[34]This provision provides the caveat, “[e]xtradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested [Country] for the same acts for which extradition is requested.”[35]This provision, though straightforward from an American attorney’s point of view,[36] should be examined with more scrutiny. As will be discussed below, the notions of acquittal and conviction have different meanings within the context of the Italian criminal justice system than under its American counterpart.

 

III.  ITALY v. THE UNITED STATES: COMPARING AND CONTRASTING CRIMINAL JUSTICE SYSTEMS

 A. The Principle of “Double Jeopardy”

The Fifth Amendment to the United States Constitution provides that “[no] person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.”[37] This provision, colloquially referred to as the “Double Jeopardy” Clause, has been an axiomatic doctrine in American jurisprudence.[38]However, its roots in the English Common Law are unknown.[39]While the Magna Carta and the English Bill of Rights of 1689 greatly influenced the drafting and subsequent adoption of many of the other amendments in the Bill of Rights, neither contained any protection against multiple prosecutions for the same crime.[40]It was not until much later during the seventeenth and eighteenth centuries when the two renowned English legal scholars Lord Coke and Lord Blackstone mentioned the concept of protections against “Double Jeopardy” in their summaries of the English Common Law.[41]

However, despite the lack of historical precedence in English legal history, protections against “Double Jeopardy” emerged in early American colonialism, appearing first in the Colony of Massachusetts and being subsequently adopted by the codes of many of the other colonies.[42] After the American Revolution however, very few states included in their state constitutions a bar against Double Jeopardy, the exception lying with New Hampshire.[43] It was not truly considered to be a fundamental constitutional principle in American jurisprudence until after the adoption and ratification of the United States Constitution and Bill of Rights.[44]Ultimately, the “Double Jeopardy” Clause came to be interpreted as a protection against three improper government procedures: (1) Multiple prosecutions for the same offense after an acquittal, (2) multiple prosecutions for the same offense after a conviction, and (3) multiple punishments for the same offense.[45]When examining the Italian criminal proceedings against Amanda Knox, it is important to keep in mind the United States’ historical development of the “Double Jeopardy” doctrine and the underlying principles and policy objectives it seeks to accomplish. As will be predicated in Part IV below, these are relevant factors United States’ officials may have to weigh in determining Amanda Knox’s possible extradition.

 B. Italy’s Criminal Procedure

 In 1989 Italy, dissatisfied with its current inquisitorial style criminal justice system, enacted its current Criminal Procedure Code (Nuovo codice di predura penale) by incorporating adversarial aspects into it, similar to those in the United States.[46] In inquisitorial justice systems, judges have considerable control entrusted to them over the case and “ ‘[t]he involvement of the [] prosecutor and defense attorney [is] generally limited to asking occasional follow-up questions or suggesting other lines of inquiry.’ “[47]However, the new Code adopted adversarial methods of inquiry to “create a ‘clear-cut separation between the body responsible for investigating and prosecuting a crime and the body responsible for adjudicating the case’ “ in an effort to stamp out corruption.[48] As a result, current Italian criminal proceedings may be broken up into three separate phases: “ ‘(1) the preliminary investigation phase (indagini preliminari); (2) the preliminary hearing phase (udienza preliminare); and (3) the trial phase (dibattimento).’ “[49]In order to better understand the legal proceedings against Amanda Knox, an in depth review of each phase is warranted.

 i.   The Investigation Phase: indagini preliminary

Unlike in the United States, investigatory duties in Italy are the responsibilities of the prosecutors rather than the police.[50] After a crime is reported to the police, the prosecutor is notified within 48 hours and, from the time of being notified, has six months to collect evidence and complete an investigation.[51] During his or her investigation, if a witness or witnesses are not able to testify at trial, the prosecutor can ask for an “incidente probatorio,” allowing the prosecutor to take the witness’ testimony and place it in a file to be used in future trial proceedings.[52] During this phase, prosecutors gather evidence proving guilt as well as exculpatory evidence to present to the judges in the preliminary hearing phase.[53] Once the prosecutor has concluded the investigation, the defendant is given notice of the charges brought against him or her.[54]The defendant may then hand over exculpatory evidence to the prosecutor or ask for a further investigation by the prosecution for an additional thirty days.[55]

While the prosecutor is given great discretion and control over the investigation phase, “[a] preliminary investigation judge (giudice per le indagini preliminari, or “gip”) is assigned to each investigation.”[56]The gip ensures necessary precautions are taken such as whether the defendant should remain in jail during the investigation and whether the prosecutor is abusing his or her discretion in violating the defendant’s rights.[57]Furthermore, “[s]ince the Italian system requires mandatory prosecution, a prosecutor must explicitly request a dismissal from [the gip] if they believe the case is weak.”[58]This dismissal, however, does not prevent the case from being reopened at a later date.[59]After the investigation phase is complete, all of the gathered evidence is placed into a file and the parties proceed to the preliminary hearing phase.[60]

 ii. The Preliminary Hearing Phase: udienza preliminare

 During the preliminary hearing phase, the gip is relieved and a new judge is appointed to the case (giudice per l’udienza preliminare, or “gup”).[61] If the prosecutor believes there is enough evidence to reach a conviction, he or she will make a formal request to the gup to proceed to trial.[62]“At this moment, under Italian law (art. 405 c.p.p.) the person under investigation formally becomes a ‘defendant’ (imputato).”[63] After receiving the prosecutor’s request, the gup then examines all of the evidence gathered and put together in the case file by the prosecutor and determines if the case should proceed to trial, the charges be dismissed, or whether more information is needed by the judge to make a decision.[64]Before the hearing is held, the prosecutor discloses all of the evidence and the defendant and his or her counsel are allowed to inspect it.[65]

After the defendant has had a chance to inspect all of the evidence, the parties attend the hearing where a debate takes place as to whether the case should go to trial.[66]This hearing has three goals: (1) to select the charges to go to trial (a defendant may have more than one charge against him or her), (2) to allow the defendant to offer any exculpatory evidence he or she has gathered to prevent the case from going to trial, and (3) to permit the parties to negotiate other alternative resolutions without proceeding with a trial (equivalent to plea bargaining in the United States).[67]If no plea deal is reached and the “gup” grants the prosecutor’s request, then the parties move on to the trial phase.[68]

 iii. The Trial Phase: dibattimento

Under inquisitorial-type systems, typically there are no juries but only a judge or judges who decide the outcome.[69]The Italian courts have created a hybrid judicial deliberation system for serious offenses such as murder.[70] For these crimes, there is a panel of two judges and six civilians (giudici popolari), randomly selected from electoral lists, who sit as the jury for the trial.[71]All eight determine the factual and legal issues of the case.[72]Once a conviction or acquittal has been made by a majority of the panel, the judges and civilians produce a “[written] ‘opinion that reviews the evidence and explains in detail the grounds (motivazione) for the decision.’ “[73]These opinions can span hundreds of pages and detail the deliberations for the appellate courts.[74]

Once the “gup” approves the prosecutor’s request for a trial, he or she prepares a new file for the trial judges and civilians containing all of the gathered evidence in its original form; the prosecutor’s investigation and preliminary hearing file is unavailable to them.[75] This new procedure requires that the parties present the evidence at trial,[76] much like our American adversarial-trial system. The theory behind this principle is to ensure the investigation file does not unduly influence the trial judges and that they approach the case as a “tabula rasa,” unbiased by the prosecutor’s sources of information.[77]The notion is based on the “principles of orality.”[78]which provide that the judges should receive the produced evidence in court and decide the case on its merits from that production and not on out-of-court evidence.[79]

With the new code incorporating adversarial methods like in the American trial system, an Italian trial starts with first resolving preliminary matters such as procedural errors.[80]After these have been resolved, the parties then present their opening statements with the prosecutor going first.[81]Once opening statements are complete, the prosecutor presents evidence first to the court, and the defendant goes last.[82] However, since the prosecutor need not prove a prima facie case, “[the] order of evidence production may be subject to derogation upon agreement by the parties.”[83]Finally, after the parties produce all evidence before the court, they present their closing arguments in the same order as the opening statements.[84]“[Thus,] [w]hile judges used to lead the proceedings and the introduction of evidence, the [revised] rules have the parties present opening statements, introduce witnesses and evidence, cross-examine witnesses, and provide closing statements”,[85] forcing the parties to argue and convince the court in their favor.

Despite this use of an adversarial-type procedure in trials, Italian courts still maintain and incorporate inquisitorial methods into their system.[86] For example, after direct and cross-examination, the judges are given the power to question witnesses on the stand and direct the parties to inquire into new issues they feel need to be addressed.[87]Additionally, under dichiarazioni spontenee dell’imputato, the defendant is allowed to speak out and challenge a witness’ testimony at any time during the trial.[88]

 iv.The Italian Appellate System

 Italian appellate review plays a core function in the country’s criminal justice system.[89]Unlike the American appeals process where trials can only be appealed on narrow questions of law,[90]Italian intermediate appellate courts (corte di assise d’appello) review de novo both questions of fact and of law.[91]The Italian intermediate appellate courts act as “a second complete adjudication of both the factual and legal issues.”[92]Thus, the appellate court, if it so chooses, may conduct a completely new trial in which it is not bound by the trial court’s findings, both factually and legally, and may issue a decision with a completely different outcome.[93]Additionally, this appellate procedure is available to both the defendant and the prosecution, even in cases of a not guilty verdict, a practice that does not square away with the American principle of “Double Jeopardy.”[94]

Following review by the corte di assise d’apello, a subsequent inquiry may be made by the Court of Cassation (corte di cassazione), the equivalent to the United States Supreme Court and the judicial body empowered with ultimate review of all criminal cases.[95]However, unlike the intermediate appellate courts, all inquiries made by the Court of Cassation are limited to questions of law.[96]The Court of Cassation may overturn, fully or partially, the lower courts’ decisions and remand the case back down for a retrial.[97]Should the case be remanded for retrial, the lower courts must abide by the legal conclusions of the Court of Cassation.[98]

 C. The Amanda Knox Trial

 i.   Background Information

On November 2, 2007, twenty-one-year-old British student Meredith Kercher was found in her Perugia, Italy apartment strangled, with her throat slashed, and her body wrapped up in a duvet.[99]The murder shocked the village of Perugia, a small college town in the heart of Italy, and the international community.[100]At the time of her murder, Kercher was living with three other women—two Italian legal assistants in their late twenties and a twenty-year-old American student named Amanda Knox.[101]Since it was a national holiday weekend, both Kercher’s Italian roommates were out of town on the night of the murder.[102]Only Knox and her then boyfriend, Raffaele Sollecito, whom she had only known for a week before the murder, were in Perugia.[103]Given their perceived bizarre behavior by the Italian authorities following the incident, the couple soon became the primary suspects and were eventually charged with Kercher’s murder.[104]

ii. The Evidence

The prosecution presented four critical pieces of evidence during the initial trial: (1) contradictory testimony given by Knox and Sollecito, (2) eyewitness’ testimony, (3) electronic usage evidence, and (4) DNA evidence.[105] Many American analysts, even though it was considered to be convincing enough by the trial court to find a conviction, have scrutinized the reliability of all four.[106]Each critical piece presented during the trial is discussed below.

Initially, the authorities perceived Knox and Sollecito’s reactions to the discovery of Kercher’s body as suspicious.[107] Knox first gave the alibi that she stayed at Sollecito’s house on the night of the murder, and that she did not leave until 10:30 a.m. the next morning to change clothes.[108]She claimed that, “the two had cooked dinner around 9 p.m., watched a film, smoked marijuana, had sex, and gone to bed.”[109]However, after several days of interrogation, in a second interview, Knox signed a statement telling the police an inconsistent story claiming she was in the apartment the night of the murder and that her boss and night club owner, Diya Lumumba, was responsible for Kercher’s death.[110]Following up on this account, the police investigated Lumumba, but eventually ruled him out as a suspect since he was able to corroborate his alibi.[111]

Adding more holes to Knox’s alibi were eyewitness’ testimony and electronic evidence regarding Sollecito’s computer and phone.[112]Contradicting Knox’s account that she remained at Sollecito’s, a homeless man named Antonio Curatolo testified that he saw the couple at a local square the night of the murder sometime between 9:30 and 11 p.m.[113] Furthermore, a store owner named Marco Quintavalle stated that he saw Knox come into his store around 7:35 a.m. the morning after the murder, conflicting with Knox’s statement that she did not leave until 10:30 a.m.[114] Additionally, electronic records for Sollecito’s computer showed that it was not used after 9:15 p.m. until around 5:30 a.m. to play music,[115] and that his phone was turned back on at around 6 a.m., showing that he was awake before 10:30 a.m.[116]All this evidence was used by the prosecution to challenge Knox and Sollecito’s alibi.[117]

Finally, the prosecution heavily relied on DNA evidence to convince the Court of Knox and Sollecito’s involvement in Kercher’s murder.[118]This was the most damaging evidence to question Knox’s defense at her first trial, even though none of Knox’s DNA was found in Kercher’s room where the murder occurred.[119] The only other DNA besides Kercher’s that was found in the room was that of Rudy Guede, an Ivory Coast native, who was also found guilty of Kercher’s murder and sentenced to sixteen years.[120] The prosecution ultimately argued that Guede, Knox and Sollecito were all three accomplices in the murder.[121] Despite this lack of evidence though, what the Court relied very heavily on was the DNA recovered from a knife found in Sollecito’s house.[122]The prosecution alleged that Kercher’s DNA was found on the tip of the knife, and that Knox’s DNA was recovered from the handle.[123]Relying on this evidence, the trial court found both Knox and Sollecito guilty of murder and sentenced them to twenty-six years and twenty-five years in prison respectively.[124]

 iii. Amanda Knox’s Appeal

 Following her trial court conviction, Amanda Knox’s appeal to the corte di assise d’appello began in December of 2010 and ended with an acquittal on October 3, 2011.[125]As is allowed and mentioned above as standard procedure, this appeal was a total review of both the factual and legal conclusions reached by the trial court.[126]The appellate court allowed for new evidence concerning the testing of the DNA to be introduced, several witnesses to re-testify, and new witnesses to testify, leading to their reversal of the conviction and acquittal of Amanda Knox.[127]

Among some of the most important new evidence presented was that of independent forensic experts who retested the DNA evidence from the first trial.[128]This new evidence concluded that the DNA results from prior testing were likely derived from contamination by improper care and collection from the police.[129]Furthermore, Curatolo’s eyewitness account was discredited through his additional testimony that was inconsistent and evidence concerning his history with drug addiction. Finally, Knox’s defense provided testimony from Rudy Guede’s prison-mate, Mario Alessi, that Guede told him he committed the murder with different accomplices, not Knox and Sollecito.[130]In its decision for acquittal, the appellate court concluded that this new evidence was highly persuasive, “finding that the original DNA evidence was ‘compromised by substandard police and forensic work’ and that prior testimony by witnesses like Curatolo was not credible.”[131]

 

IV. ANALYSIS

Amanda Knox’s acquittal by the appellate court was subsequently overturned by the Court of Cassation and ordered the case remanded for retrial.[132] If Italy seeks Knox’s extradition and a conviction in absentia is reached,[133] this reversal may pose several difficult legal questions for United States authorities. Specifically, they will be faced with adjudicating whether to consider her acquittal by the Appellate Court final where Double Jeopardy attaches. This decision can implicate several foreign and domestic responses.

A. What Does “Conviction” and “Acquittal” Mean in Italy?

 In the United States’ criminal justice system, persons accused of crimes are presumed innocent until proven guilty.[134]Under this foundation, since the trial courts in the United States act as the only adjudicator of facts in criminal proceedings, the legal understanding of what a “conviction” and “acquittal” mean to American lawyers is more definitive.[135] This is apparent due to the American appellate structure where only questions of law may be appealed.[136]Indeed, if the appellate court finds the trial court did not properly apply the law to its proceedings, for example, when there is an evidentiary error, the case is remanded back down to the trial court to re-adjudicate the facts with specific instructions as how to apply the law.[137]

On the other hand, while Italy applies the same presumption of innocence until proven guilty,[138] under its unique structure for criminal proceedings, a trial court’s and even an intermediate appellate court’s “conviction” or “acquittal” does not carry the same meaning as in the United States.[139] This difference in the legal significance of both terms lies in the difference of each country’s respective appellate structures.[140] In contrast to its American counterpart, Italy’s intermediate appellate court acts as a second trial court, often referred to as the processo in secondo grado, or the trial at the second level.[141] Even after both the trial court’s and the intermediate appellate court’s decision, a defendant in Italy is still presumed innocent until a “definitive conviction,” or condanna definitive.[142]Thus, a conviction or acquittal in Italy becomes definitive or “irrevocable” once all legal means of appeals have been exhausted.[143] This occurs when the Court of Cassation upholds a conviction or acquittal in its entirety, or neither party makes an appeal within the allotted time frame for doing so.[144]

Applying this to Amanda Knox’s criminal proceedings then, under Italian law, because the Court of Cassation has upheld neither a conviction or an acquittal,[145]there has been no definitive adjudication of her case and she is still presumed innocent of Meredith Kercher’s murder, despite having spent three years in an Italian prison.[146]Thus, the best analogy to help Americans to understand Knox’s situation is to view it as though she is still in the middle of a trial and the jury has yet to reach a verdict. Therefore, looking at her case from this perspective, she has neither been found guilty nor acquitted of the murder for Meredith Kercher. As will be pointed out below, this unique situation poses an unusual and curious issue when considering her international extradition, one that United States authorities may be faced with resolving in the future.

 B. Applying United States Extradition Laws: Will Amanda be Extradited to Italy?

 Previously discussed, Italy and the United States entered in to a bilateral extradition treaty in 1983.[147] That treaty provides in its “Non Bis in Idem” clause that extradition will not be granted when the wanted individual has been convicted, acquitted, or already served their sentence for the crime for which he or she is being extradited.[148]While this provision parallels the American prohibition against “Double Jeopardy,”[149] given Italy’s criminal procedure, the question in determining whether Amanda Knox is extraditable is whether she was in fact ever acquitted or convicted.[150]Under Italian law, because the Court of Cassation upheld neither of the lower courts’ decisions, Amanda Knox is still presumed innocent and Double Jeopardy may not necessarily attach.[151] But will this be a convincing enough argument to the State Department to validate her extradition, or will United States authorities consider her acquittal sufficiently final for Double Jeopardy to attach?[152]

The Knox case poses a host of legal complexities for the State Department as it considers her extradition.  The likely result is that she will probably never have to return to Italy to serve jail time. Since Italy allows defendants to be tried regardless of their presence at court, what is referred to as “in absentia,”[153] Italian authorities, thus far, have not requested her extradition for her retrial before the intermediate appellate court. Furthermore, given the weakness of the prosecution’s evidence, which was made very apparent during her first appeal,[154]the court again will most likely reach an acquittal that will be upheld by the Court of Cassation if the law is properly applied in her retrial. However, should her retrial result in a conviction, then the legal and international relations issues will have to be resolved by the State Department.

 C. Possible Repercussions on Foreign Relations

 Should a conviction be found after Amanda Knox’s retrial and her extradition is sought, or if extradition is sought for her retrial, United States authorities will be faced with making a decision in light of several possible repercussions. The State Department will have to consider whether the Italian Criminal Procedure violated Amanda Knox’s rights guaranteed to her under the United States Constitution, specifically the Fifth Amendment prohibition against “Double Jeopardy.”[155] Should extradition be refused on this principle alone, the United States may be viewed as uncooperative in the arena of foreign relations and disrespectful toward Italian Jurisdiction over crimes committed on their soil[156]Such results could strain relations between the United States and Italy in future extradition proceedings.

On the other hand though, United States authorities have their own constituents’ reactions to consider. If extradition is granted, many Americans may view this as a step toward disregarding American principles and constitutional rights to appease foreign relations.[157] This could result in a public relations nightmare for those involved in the decision whether to extradite Knox.

 

V.  CONCLUSION

 The Amanda Knox case creates quite a legal predicament with regards to comparative law. Should one view the Knox case through the lens of the Italian Code of Criminal Procedure and Italian law, one may reach the conclusion that she has neither been convicted or acquitted and thus extraditable. Looking at the proceedings through the lens of the American criminal justice system, however, many may find that her extradition would violate the long-standing and fundamental constitutional right against “Double Jeopardy.”[158]

For Amanda Knox, and conversely for United States officials as well, the best possible outcome would be for her to be tried in absentia resulting in an acquittal upheld by the Court of Cassation. This would relieve the United States government from having to determine whether to extradite her and face the political and international backlash from their decision. In the worst-case scenario, Amanda Knox could be convicted in absentia and Italy may seek her extradition, forcing the United States to deal with legal issues on which there is no current consensus.[159] Only time will tell what lies beyond the legal horizon.

 


* 2014, J.D. Candidate, Gonzaga University School of Law, 2012-2014, Gonzaga Law Review, Associate Editor, 2012-2014, Gonzaga Journal of International Law, Associate Editor, 2010, B.A., Texas A&M University. I would like to thank Professor Cheryl Beckett and Professor Megan Ballard for all of their help and support in writing this article. I would also like to thank the editorial staff on the Gonzaga Journal of International Law for their hard work and diligence throughout the editing process.

 

[1] See Michael S. James & Elizabeth Vargas, A Tale of Two Cultures: Amanda Knox Case Reveals a Stark Divide, ABC News (Dec. 6, 2009), http://abcnews.go.com/WN/AmandaKnox/amanda-knox-case-reveals-cultural-divide/story?id=9263616.

[2] See id.

[3]Julia Grace Mirabella, Note, Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial, 30 B.U. Int’l L.J. 229, 232 (2012).

[4] I should point out here that, while I will use the American system’s legal terminology throughout this paper, the Italian system might not recognize or utilize these terms for the same or equivalent situations. They are being used strictly to aid the American readers of this article in understanding the Italian criminal justice system. 

[5] Elisabetta Provoledo, Amanda Knox Freed After Appeal in Italian Court, N.Y. Times (Oct. 3, 2011), http://www.nytimes.com /2011/10/04/world/europe/amanda-knox-defends-herself-in-italian-court.html?ref=amandaknox&_r=0.

[6] See id (photo by Tiziana Fabi).

[7] Elisabetta Provoledo, Italy’s Highest Court Overturns Acquittal of Amanda Knox, N.Y. Times (March 26, 2013), http://www. nytimes.com/2013/03/27/world/europe/amanda-knox-retrial-ruling.html?ref=amandaknox.

[8] Id.

[9] See U.S. CONST. amend. V.

[10] 18 U.S.C. § 3196 (2006).

[11] U.S. Dep’t of Justice, United States Attorneys’ Manual § 9-15.100 (1997), available at http://www.justice.gov/usao/eousa/ foia_reading_room/usam/title9/15mcrm.htm#9-15.100.

[12] See generally, 18 U.S.C. §§ 3181-3196 (2006).

[13] 18 U.S.C. § 3181(a) (2006); 18 U.S.C. § 3184 (2006); see 18 U.S.C. § 3196 (2006); see also, 9B Fed. Proc., L. Ed. § 22:2351(2005) (“[I]n the absence of a treaty authorizing extradition to the foreign nation . . . , federal authorities have no power to surrender to a foreign government a United States citizen whose extradition is sought, unless authorized by federal statutes.” (citing Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5 (1936)).

[14] 9B Fed. Proc., L. Ed. § 22:2351 (“if the United States obliges itself to surrender all persons wanted by another nation, there is no basis for withholding the surrender of a United States citizen as opposed to an alien”).

[15] Id. (citing Charlton v. Kelly, 229 U.S. 477 (1913)).

[16] See 18 U.S.C. § 3196 (2006); see also 9B Fed. Proc., L. Ed. § 22:2351.

[17] 9B Fed. Proc., L. Ed. § 22:2351.

[18] Id. (citing Valentine, 299 U.S. 5).

[19] Id.

[20] Id. (citing Gouveia v. Vokes, 800 F. Supp. 241 (E.D. Pa. 1992)).

[21] U.S. Dep’t of Justice, supra note 11, at § 9-15.700.

[22] Id.

[23] Id. (while the USAM does not specify a reason for this, it is probably due to policy considerations to ensure the fugitive wanted for extradition does not abscond after being arrested, thus ensuring better foreign relations with other countries).

[24] Id.; 18 U.S.C. § 3184 (2006) (“if, on such hearing, [the judge] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, . . . he shall certify . . . to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person . . . ”).

[25] Id.

[26] U.S. Dep’t of Justice, supra note 11, at § 9-15.700.

[27] Id.

[28] Id.

[29] See 18 U.S.C. § 3181 (2006) (contains a comprehensive list of the countries with whom the U.S. has extradition treaties with and the date they were entered into).

[30] See Treaty on Extradition Between the Government of the United States of America and the Government of the Republic of Italy, Oct. 13, 1983, T.I.A.S. No. 10837 (hereinafter “Extradition Treaty”).

[31] Id.

[32] Id.

[33] Id. (see Article VI).

[34] Extradition Treaty, supra note 30, at Article VI.

[35] Id. (emphasis added).

[36] Provision resembles closely the “Double Jeopardy” principle articulated in the United States Constitution. See U.S. Const. amend. V.

[37] U.S. Const. amend. V.

[38] See 1 Annals of Cong. 433-36 (Joseph Gales ed., 1834) (founding father James Madison stressed the adoption of “double jeopardy” protections in his proposals for the Bill of Rights).

[39] Barbara A. Mack, Double Jeopardy—Civil Forfeitures and Criminal Punishment: Who Determines What Punishments Fit the Crime, 19 Seattle U. L. Rev. 217, 220 (1996).

[40] Id. at 219.

[41] Id.; see also 4 William Blackstone, Commentaries at 329-330.

[42] Mack, supra note 39, at 221.

[43] Id. at 221.

[44] See id. at 222. (“After congress adopted and the states ratified this constitutional right, 120 years of judicial interpretation began”).

[45] Id. at 219.

[46] Mirabella, supra note 3, at 231-233.

[47] Id. at 233 (quoting William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 Yale J. Int’l L. 1, 4 (1992)).

[48] Id. (quoting Ennio Amodio, The Accusatorial System Lost and Regained: Reforming Criminal Procedure in Italy, 52 Am. J. Comp. L. 489, 490 (2004)).

[49] Id. (quoting Stephen P. Freccero, An Introduction to the New Italian Criminal Procedure, 21 Am. J. Crim. L. 345, 362 (1994)).

[50] Id. at 234.

[51] Mirabella, supra note 3, at 234.

[52] Id. It is important to note here that, in the United States, this unique procedure would violate a defendant’s constitutional right to face their accusers contained in the Sixth Amendment’s Confrontation Clause. See U.S. Const. amend. VI (“[I]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him”).

[53] Id.

[54] Id.

[55] Id.

[56] Mirabella, supra note 3, at 234 (citing William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 Yale J. Int’l L. 1, 4 (1992)).

[57] Id. at 234-235.

[58] Id. (citing generally Thomas Glyn Watkins, The Italian Legal Tradition (1997); William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 Yale J. Int’l L. 1, 4 (1992)).

[59] Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 Am. J. Comp. L. 227, 234 (2000).

[60] Mirabella, supra note 3, at 234-235.

[61] Id. at 235.

[62] Grande, supra note 59, at 234.

[63] Id.

[64] Mirabella, supra note 3, at 235.

[65] Grande, supra note 59, at 234.

[66] Id. at 241.

[67] Id. at 242-43.

[68] Id. at 243 The preliminary hearing phase appears to function much like the probable cause hearings or their equivalents in the United States with slight variations. See Fed. R. Crim. P. § 5.1(e). There is a noticeable addition of adversarial methods in the Italian system during this phase.

[69] Mirabella, supra note 3, at 236.

[70] Id.

[71] Id.

[72] Id.

[73] Id. (citing William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 Yale J. Int’l L. 1, 15 (1992)).

[74] Mirabella, supra note 3, at 236, 243 (“[T]he judges released an opinion to support their guilty verdict. At four hundred and twenty-seven pages, the opinion is a point-by-point recitation of the jury’s process and deliberations . . . ”).

[75] Grande, supra note 59, at 243; see also Mirabella, supra note 3, at 235.

[76] Mirabella, supra note 3, at 235.

[77] Id.; see also Grande, supra note 59, at 243.

[78] Mirabella, supra note 3, at 235.

[79] Grande, supra note 59, at 243.

[80] Id. at 244.

[81] Id.

[82] Id.

[83] Id.

[84] Id. at 247.

[85] Mirabella, supra note 3, at 235.

[86] Id.

[87] Id. (citing Grande, Supra note 59, at 245).

[88] Id. I find this aspect in the Italian system probably the most striking considering that the defendant is under no obligation to tell the truth. See Mirabella, supra note 3, at 236. In fact, even if it comes out that the defendant has lied to the court, because they are not put under any oath, there can be no prosecution for perjury. Grande, supra note 59, at 245.

[89] Mirabella, supra note 3, at 253.

[90] Id.

[91] Id.

[92] Stephen P. Freccero, An Introduction to the New Italian Criminal Procedure, 21 Am. J. Crim. L. 345, 379 (1994).

[93] Id.

[94] Id.

[95] Freccero, supra note 92, at 381.

[96] Id.

[97] Id.

[98] Id.

[99] Rachel Donadio, Details Only Add to Puzzle in Umbrian Murder Case, N.Y. Times (Sept. 29, 2008), http://www.nytimes. com/2008/09/30/world/europe/30perugia.html; see also Mirabella, supra note 3, at 239.

[100] Mirabella, supra note 3, at 239.

[101] Ian Fisher, Grisly Murder Case Intrigues Italian University City, (Nov. 13, 2007), http://www.nytimes.com/2007/11/13/world/ europe/13perugia.html.

[102] Candace Dempsey,  Murder in Italy: The Shocking Slaying of a British Student, the Accused American Girl, and an International Scandal, 41 (2010).

[103] Id.

[104] Mirabella, supra note 3, at 239-240.

[105] See id. at 241-248.

[106] Id. at 245.

[107] See Nina Burleigh, The Scapegoating of Amanda Knox, L.A. Times (Oct. 4, 2011), http://articles.latimes.com/2011/oct/04/ opinion/la-oe-burleigh-knox-20111004.

[108] Donadio, supra note 99.

[109] Mirabella, supra note 3, at 243.

[110] Fisher, supra note 101.

[111] Ian Fisher, German Police Arrest Third Suspect in Perugia Murder Case, N.Y. Times (Nov. 21, 2007), http://www.nytimes.com/2007/11/21/world/Europe/21italy.html. This accusation of Lumumba made by Amanda Knox would eventually turn into a civil suit for defamation. See Mirabella, supra note 3, at 241.

[112] See Mirabella, supra note 3, at 244.

[113] Id.

[114] Id.

[115] Mirabella, supra note 3, at 244-245.

[116] Id. at 245

[117] Id.

[118] Id. at 245 (“Ultimately, DNA evidence was central to the court’s conclusion that Knox and Sollecito were a part of the Kercher murder”).

[119] Id.

[120] Timeline: Meredith Kercher murder case, cnn (Mar. 26, 2013), http://www.cnn.com/2011/09/28/world/europe/italy-amanda-knox-timeline/index.html.

[121] Id.

[122] See Mirabella, supra note 3, at 245-46.

[123] Id.

[124] Timeline: Meredith Kercher murder case, supra note 120.

[125] Mirabella, supra note 3, at 253.

[126] Id. at 253-554.

[127] Id. at 254.

[128] Id.

[129] Id.

[130] Mirabella, supra note 3, at 253.

[131] Id. (quoting Barbie Latza Nadeau, Judge in Amanda Knox Trial Publishes Reasoning Behind Acquittal, The Daily Beast, (Dec. 15, 2011), http://www.thedailbeast.com/articles/2011/12/15/

judge-in-amanda-knox-trial-publishes-reasoning-behind-acquittal.html).

[132] Timeline: Meredith Kercher murder case, supra note 120.

[133] See generally Alan Greenblatt, Knox or Not: Plenty of Cases Are Tried Without a Defendant, (Mar. 26, 2013), http://www.npr.org/2013/03/26/175374848/knox-faces-a-new-trial-even-if-she-s-not-there (In absentia convictions are explored below in Subsection B).

[134] See Coffin v. United States, 156 U.S. 432, 453-54 (1895).

[135] See U.S. Const. amend. V. (once an acquittal has been rendered in U.S. Courts, the prosecution may not seek to try the defendant again).

[136] See Alan Dershowitz, Amanda Knox—Tabloid Sensation, Global Legal Bellwether, Wall St. J. (Mar. 27, 2013), http://online.wsj.com/article/SB10001424127887324789504578384871256488436.html.

[137] See id.

[138] Freccero, supra note 92, at 359.

[139] See Dershowitz, supra note 136.

[140] Freccero, supra note 92, at 359.

[141] Freccero, supra note 92, at n. 267 (recalling that Italy’s intermediate appellate court can accept new evidence and may adjudicate both questions of fact and questions of law, it is easy to see how it is often referred to as the second trial).

[142] Id. at 359.

[143] Id.

[144] Id.

[145] See Provoledo, supra note 7.

[146] Freccero, supra note 92, at 359.

[147] Extradition Treaty, supra note 30.

[148] Id. (see Article IV).

[149] Cf. U.S. Const. amend. V.

[150] See Dershowitz, supra note 136.

[151] Id. (“Ms. Knox’s own Italian lawyer has acknowledged that her appellate ‘acquittal’ wouldn’t constitute double jeopardy under Italian law since it wasn’t a final judgment—it was subject to further appeal, which has now resulted in a reversal of the acquittal”).

[152] Id.

[153] Greenblatt, supra note 133.

[154] See Mirabella, supra note 3, at 254.

[155] See U.S. Const. amend. V.

[156] See Dershowitz, supra note 136 (“By becoming an exchange student in Italy, Ms. Knox subjected herself to Italian law”).

[157] See Vargas and James, supra note 1.

[158] Id.

[159] See Dershowitz, supra note 136.

Knox Case Could Put U.S. in an Extradition Quandary

  • Query: Gonzaga student explores the problems associated with Amanda Knox’s extradition in the latest edition of the Gonzaga Journal of International Law. What do you think?

UK ready to accept more Syrian refugees

Query: With the current political climate in Syria amidst the civil war, how are surrounding countries dealing with refugees from Syria?

Concerning Summary Repatriations of Sex-Trafficking Victims Out of Cambodia

(Part II of II)

 Patrick M. Talbot

I. Introduction to Part II

II. The Legal Standards Protecting Rescued Victims: A Suggestion Against Summary Repatriations

A. Summary of the Laws and Standards Protecting Rescued Victims

B. International Standards

1. Convention on the Rights of the Child

2. The Optional Protocol on the Convention on the Rights of the Child (Optional Protocol)

3. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nationals Convention Against Transnational Organized Crime

4. U.N. Global Plan of Action to Combat Trafficking in Persons, General Assembly Resolution 64/293

5. The Cambodian/Thai MOU (Thai MOU)

6. The Cambodia-Vietnam Agreement (Vietnam Agreement)

7. Vietnam/Cambodia SOP

8. The “Inter-ministerial Cooperation Agreement” (ICA)

9. MOSAVY Policy & Minimum Standards, including its implementing Prakas 852 S.V.Y, 857 S.V.Y. (MOSAVY Handbook)

10. Decision establishing the National Task Force (NTF)

11. Decision on the Guideline for the Protection of the Rights of Trafficked Children (Children’s Guideline, or Guideline)

12. Vietnam Handover Guideline

C. Summary on Standards

III. Specific Steps in the Reparation Process

A. General Steps (All Victims, Including From Other Countries)

B. Vietnamese Victims

1. Rescue and recovery

2. Requesting Voluntary Repatriation to [MOSAVY]

3. Requesting Vietnamese Embassy in Phnom Penh for Identification and Repatriation

4. Family Tracing in Vietnam

5. Issuing of Laissez-Passer

6. Developing Handover-reception Plan and Agreement on the Repatriation Schedule

7. Administrative process in preparing repatriation

8. Notification of the Department of Immigration

9. Return and Reception

10. Reintegration and Follow-Up (Similar to Domestic)

11. Case Closure (Same as Domestic)

IV. Conclusion

I. Introduction To Part II

 In Part I of this two-part series, I introduced the problem of summary repatriations of rescued sex-trafficking victims in Cambodia. I also introduced the legal system and administrative framework apparently tasked with handling this issue.

 I use the term “summary repatriations” in this set of articles essentially to refer to the hasty and careless repatriations of rescued foreign victims without due consideration of each individual’s needs, which is contrary to the law. Such summary repatriations occurred in Cambodia, primarily among Vietnamese women and girls, through much of 2010.[1] The Cambodian Ministry of the Interior (MOI) conducted these summary repatriations.[2]

 Although systematic and careful repatriation may be an appropriate resolution of a particular victim’s situation, summary repatriation of victims amounts to little more than their deportation. Deportation may be appropriate for illegal aliens but not for victims of trafficking, who are not defined as “illegal aliens” under international standards.[3]  According to the human rights group we assisted in this project, most victims simply ran away when faced with the prospect of automatic and certain repatriation and the unknown future this would entail.[4]

 Part II of this set of articles focuses more on an analysis of the main international and domestic legal standards protecting foreign victims from summary repatriations, which Cambodia should adopt and follow. These standards support the best interests of the victims, which requires an individual assessment of each case instead of blanket summary repatriations.

 Part II concludes with a road map of the steps the Cambodian government should follow after rescuing victims in order to properly conduct repatriations and to assess and avoid inappropriate repatriations. These steps were constructed in accordance with Standard Operating Procedures (SOP) developed by the governments involved (especially in the cases of Vietnamese repatriations) with assistance from the International Organization of Migration (IOM). Although these steps should have been followed for each victim in the past, this often did not occur. The lapse in steps was likely due to gaps in Cambodia’s administrative and legal systems (discussed in Part I of this article), along with monetary expenses and similar factors.

 In summary, while Part I gave an overview of Cambodia’s administrative systems and legal structures charged with the task of victim aftercare,[5] Part II addresses two additional considerations. The first is the rights of victims under international and domestic legal standards, which suggests against summary repatriations. The second is the steps that should have been followed by the Cambodian authorities to ensure protection of victims’ rights during their rescue and aftercare. Some of my own suggestions going forward are included.

 Thanks largely to various advocacy efforts, including this one, the situation has improved in Cambodia in the last couple of years. It is this author’s aspiration that the information in these articles may assist advocates in other countries dealing with similar issues involving the aftercare of rescued foreign victims.

 

II. The Legal Standards Protecting Rescued Victims: A Suggestion Against Summary Repatriations

A. Summary of the Laws and Standards Protecting Rescued Victims

A variety of the kinds of legal and administrative instruments discussed previously in Part I may come to bear among several levels in the government on the issues of victim aftercare and repatriation.[6] Of course, implementation of these instruments should come through the various previously mentioned institutional actors charged with their enforcement (i.e., MOSAVY, MOI, NCC, Prime Minister, etc.), but the implementing role of non-government actors can be very significant and useful.[7]

 I have identified several of the most salient international and domestic legal standards impacting the rights of rescued victims that Cambodia’s institutional actors (governmental and non-governmental) must abide by.[8]

These include:

  1. U.N. Convention on the Rights of the Child (ratified by Cambodia on 10/15/92);[9]
  2. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (ratified by Cambodia on 05/30/02);[10]
  3. Supplemental Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention Against Transnational Organized Crime;[11]
  4. U.N. General Assembly Resolution, A/RES/64/293, United Nations Global Plan of Action to Combat Trafficking in Persons (adopted August 12, 2010);[12]
  5. The Thai MOU;[13]
  6. The Agreement with Vietnam;[14]
  7. Standard Operating Procedures with Vietnam (Vietnam SOP);[15]
  8. The “Inter-ministerial Cooperation Agreement” (ICA);[16]
  9. The MOSAVY Policy and Minimum Standards for Protection of the Rights of Victim[s] of Human Trafficking (collectively, the “MOSAVY Handbook”);[17]
  10. Decision No 13 S.S.R. On The Establishment of the National Task Force to Implement Agreements, Memoranda of Understanding Between Cambodia and Relevant Countries on the Elimination of Trafficking in Person[s] and Assisting Victims of Trafficking;[18]
  11. Decision No: 107 CNCC (Cambodian National Council for Children) On Guideline for the Protection of the rights of Trafficked Children of the Kingdom of Cambodia;[19]
  12. Guidelines on Procedures for Handover and Reception of Trafficked Victims between the Kingdom of Cambodia and the Socialist Republic of Vietnam (Vietnam Handover Guidelines).[20]

 The following is an expanded analysis of the above standards, including specific provisions and their relative influence. I have divided this into international and domestic (local) instruments for the sake of convenience, and I also give some initial background information on some of the instruments involved.

 

B. International Standards

1. Convention on the Rights of the Child

Background:This is a treaty ratified by Cambodia on October 15, 1992;[21] as such, it should have the highest binding effect on the subjects on which it speaks.[22]  However, this Convention tends to be very general and gives only basic guidance on the specific problem of sex-trafficking.[23] It is also limited to child victims.[24]

 Specific Provisions: Articles 7, 8, 10, 11, 21, 22, 25, 28, and 32-36 contain some supportive content for child victims.[25] Specifically, articles 7 and 8 indicate children should not remain stateless,[26] and article 28 supports a child’s right to an education.[27] Articles 32-36 prohibit various forms of exploitation, including sex-trafficking.[28]

 Interestingly, article 39 of the Convention deals specifically with recovery and reintegration of child victims of exploitation.[29] It provides that a State Party is obliged to reintegrate children in an appropriate way, fostering their “health, self-respect and dignity.”[30] This is important because it supports a generally flexible approach in handling rescued victims of sexual exploitation and appears not to assume repatriation as the appropriate action in all cases.[31]

2. The Optional Protocol on the Convention on the Rights of the Child (Optional Protocol)

 Background: The Optional Protocol was ratified by Cambodia on May 30, 2002.[32] This document was designed in part to deal with some of the growing issues resulting from the tragic sexual exploitation of children and to supplement the more generic provisions of the Convention.[33] It also deals largely with many other areas of concern, such as child pornography and other kinds of exploitation.[34]

 Specific Provisions: While the Protocol does not discuss in depth the trafficking of child victims,[35] it does have some provisions worth noting including article 8’s call for appropriate support services for child victims;[36] article 10.1’s provision for the prevention of child sex tourism;[37] and article 10.2’s specific note that “international cooperation” is necessary for a child victim’s repatriation and reintegration.[38]

 3. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nationals Convention Against Transnational Organized Crime

 Background: The Supplemental Protocol was ratified in Cambodia[39] and has some of the best language supporting the preferably voluntary nature of the repatriation of victims I have seen. However, it is a cooperative document for States Parties, meaning its effectiveness with sex- trafficking issues involving Vietnam, Thailand and other countries depends on the willingness of those countries to adopt and abide by this Protocol.[40] Thailand signed the Supplemental Protocol in 2001 but has not yet ratified it.[41] Vietnam only recently ratified the Supplemental Protocol, which should have a positive impact for Vietnamese victims.[42] Of course, this status of adoption and ratification did not exist during of the rash of summary repatriations of Vietnamese victims that occurred prior to 2010.[43]

 Specific Provisions: The Supplemental Protocol’s Preamble states that one of its purposes is to provide an “international instrument addressing trafficking in women and children.”[44] Its provisions may generally be quite useful in advocating for rescued victims.

Article 6 highlights the standard series of services and aftercare that States Parties are expected to provide victims, including legal information, recovery services, medical and material assistance, counseling, housing, education and other varieties of care.[45] Such services require time instead of immediate repatriation.

Articles 7 and 8 deal specifically with immigration status and repatriation of victims:

Article 7, “Status of victims of trafficking in persons in receiving States,” in section 7(1), provides that “each State Party shall consider . . . appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.”[46] Section 7(2) indicates humanitarian and compassionate factors shall be considered in reaching this determination (no greater specificity is given).[47]

Article 8, “Repatriation of victims of trafficking in persons,” says that the State Party of the victim’s original nationality (or residence) is to “facilitate and accept” the return of the victim into this State, with due concern for the safety of the victim and “without undue or unreasonable delay.”[48] This language puts some onus of expediency on the State of original nationality. Considering article 8(1) in light of article 7(1), this suggests that repatriation should be reasonably expedient, if and when it is appropriate (which impliedly it is in many cases but not in all cases).[49]

Section 8(2) says when a State Party where a victim currently resides is returning her to the State Party of nationality, this must be done “with due regard to safety of the victim.”[50] A return must first consider the status of “any legal proceedings” involving the victim’s trafficking.[51]  Most significantly, it states the return “shall preferably be voluntary.”[52] Again, this is very useful in an advocacy context (as it was in our case) as it supports the central idea that victim repatriation should be voluntary.

Sections 8(3) and 8(4) also contain some useful indications on the steps and the need of the sending State Party to provide appropriate documentation.[53] This reflects the same steps discussed in the Vietnam SOP.[54]

 Art. 8(5) says article 8 is to be implemented without prejudice to victims’ rights afforded under any domestic law.[55] The significance of this in our context is not clear. One would normally interpret this to mean article 8 may not prejudice any greater rights given victims under domestic law. As such, this should not mean that any less favorable domestic rights may supersede the protections of the Supplemental Protocol. Although this implication is not altogether clear, article 8(5) more than likely implies that inferior domestic rights can and should be prejudiced by those in the Protocol if in conflict, as States have agreed to the Protocol as a minimum; thus, weaker domestic rights would be subjugated.

 Article 8(6) adds that article 8 is without prejudice to any bilateral or multilateral agreements governing the return of trafficked victims.[56] This has the same interpretive issues mentioned in 8(5). Notably, the Thai MOU and Vietnam Agreement each draw from the Supplemental Protocol as a supporting reference. So it would seem whatever rights these MOU/Agreements intend to protect must be consistent with the Supplemental Protocol.

 The Supplemental Protocol should have significant influence for intended policy discussions with institutions like MOSAVY or MOI. Specifically, articles 7 and 8 emphasize that repatriation should be voluntary and that, in appropriate cases, victims of trafficking should be allowed to stay in Cambodia.[57] This can be either temporarily or permanently; reasons for a permanent stay include victim safety, the inability to trace family, or possibly settlement into a new life in Cambodia as part of the victim’s voluntary wishes.[58]

 4. U.N. Global Plan of Action to Combat Trafficking in Persons, General Assembly Resolution 64/293

 Background: This resolution was adopted by the General Assembly (G.A.) on August 12, 2010.[59] Traditionally, U.N. G.A. Resolutions are not legally binding as they are recommendations.[60] However, the legal weight of a G.A. Resolution is the subject of an ongoing debate in international law, and such Resolutions can have some legal efficacy in particular contexts.[61] For instance, in some cases a G.A. Resolution may reflect and articulate accepted principles of customary international law.[62] Some scholars also suggest that if a country signs in favor of a resolution, it has expressed its intent to be bound by it.[63] In that sense, indirectly, the dictates of this Resolution have a guiding, if not binding, effect on Cambodia, which has subscribed to its language.

 This particular Resolution may or may not articulate any customary international law on human sex-trafficking; however, it certainly does reflect a number of the specific provisions already stated in the Supplemental Protocol, as noted above.[64] It also seems to state some things entirely consistent with common sense.

 Specific Provisions: The Annex to the Resolution contains the Global Plan of Action, and Part II of the Global Plan of Action is the most useful part on the issues of repatriation.[65] Paragraph 33 urges States to adopt special visas or other measures that would allow trafficking victims to remain “temporarily or permanently” in their territory after rescue.[66] Essentially, this gives rescued victims official legal status, which corresponds with the approach already espoused in the Supplemental Protocol.[67]

 Paragraph 34 indicates origin countries should accept the victims; such returns must be done safely and “shall preferably be voluntary.”[68] The voluntary nature of repatriation is not absolute; it is preferable. However, this may be a reflection of special considerations like age and competency, as voluntariness seems to be the norm urged in most cases. In regard to children, care is determined by what is in the “best interest of the child,” consistent with other common standards.[69] In all cases, victims are to be given information in their native language as well as time to consult various options such as receiving services and discussing legal redress and compensation for their situation – safeguards which summary repatriations totally ignore.[70] Next, I focus on some of the specific instruments between the countries involved.

 5. The Cambodian/Thai MOU (Thai MOU)

Background: As indicated in Part I, this is not an actual treaty and is likely not legally binding upon each country in that sense.[71] The individual signatories of the Thai MOU are Ith Samheng, the head of MOSAVY for Cambodia, and Anurak Chureemas, the head of Thailand’s Ministry of Social Development and Human Resources (MOSAVY’s counterpart).[72] In Cambodia, the Thai MOU is signed by neither the Prime Minister nor Minister of Foreign Affairs, which is expected for a treaty; additionally, nothing indicates the signatures of these ministry heads was pursuant to a special appointment by the Prime Minister or the Minister of Foreign Affairs. As such, it seems Cambodia has not taken any internal steps toward ratifying the Thai MOU as part of Cambodian Law, and consequentially the Thai MOU may not even rise to the level of an “International Agreement.”[73] Its legal efficacy, if any, would seem to be at the most basic level of an international MOU. Still, the Thai MOU clearly purports to describe the roles of MOI’s national police and border patrol and seeks cooperation with other ministries, showing an intention to reach beyond the signing authorities as inter-State government policy.[74]

 Accordingly, although the Thai MOU is not a treaty, it is clearly intended to have some importance. The MOU is made “between the governments” of Thailand and Cambodia.[75] Its provisions also authorize MOSAVY in Cambodia and the Thai equivalent to issue appropriate regulations and laws to protect and care for the victims.[76] But its authoritative punch is subject to differing views. In terms of binding effect, article 22 states the MOU may be terminated at any time through diplomatic channels and by written notice six months in advance.[77] Article 20 calls for the creation of a “Joint Task Force” to monitor and report on progress in the MOU’s implementation.[78] The Thai MOU’s efficacy in the instance of handling Thai victims is also limited since repatriation issues between Thailand and Cambodia usually involve Cambodian victims. It is generally agreed that Cambodian victims living in Thailand is a far more common situation than Thai victims living in Cambodia. Nevertheless, the document stands as the basic protocol for repatriation in either direction. It is also helpful for its articulation of rights.[79]

 Specific Provisions: In referencing these provisions, I will also cross-reference to the almost identical provisions in the Vietnam Agreement, for the sake of comparison, discussing any unique aspects of the Vietnam Agreement separately below.

 First, victims of human trafficking are not to be treated as illegal immigrants, as stated in articles 7(a), (b), 16(c).[80] The MOU further specifies rescued victims shall not be prosecuted as illegal immigrants nor shall they be detained in immigration centers.[81] If it were otherwise, the Immigration Law would require the MOI to expel every alien who entered Cambodia illegally, including these victims.[82]

Second, a variety of provisions seem to afford general protection to victims after rescue rather than immediate repatriation. For instance, article 7(c) of the Thai MOU says the government authorities must ensure the security of trafficked victims.[83] Article 8 provides legal recourse to victims against their abusers and accordingly suggests against summary repatriation (deportation) in order for victims to avail themselves of that legal system.[84] Victims obviously must remain in the country if they wish to pursue such a case. Safety from menace and retaliation during judicial proceedings is provided for in article 15, and article 9 states the government must work with NGOs to provide trafficking victims with safe shelters, health care, and legal assistance.[85]

Third, article 16 specifically states repatriation shall be arranged “in [the] best interest” of the victim, and deportation (i.e., removal without that determination and a beneficial process) is simply not allowed.[86] Article 17 indicates the “Focal-Point” (MOSAVY in Cambodia) must provide security for any repatriated victims.[87] Similarly, article 18 declares the Parties (States) shall make every effort toward a victim’s “safe and effective” integration—something summary repatriations would ignore.[88]

Fourth, several of the Thai MOU’s provisions mention the need for cooperation with government agencies across borders as well as with other ministries in Cambodia.[89] Such cooperation again suggests against summary repatriations.

Fifth, wording such as “[r]epatriation of trafficked children and women shall be arranged and conducted in their best interest . . .”[90] (and similar wording in the Vietnam Agreement) shows a bias in favor of repatriation.[91] This wording clearly seems to indicate repatriation shall take place, according to an assumption this is in the best interests of the victim. However, I suggest that this and similar wording is subject to another implied and equally valid interpretation: if in a particular instance repatriation would not serve the best interests of the victim, then it should not take place, at least not any time immediately.  Stated differently, repatriation is an option if it is in the best interests of the victim. I suggest this second interpretation best comports with standards elsewhere articulated in the Thai MOU and by MOSAVY in its “best interests” framework.

In sum, the Thai MOU clearly shows a bias in favor of repatriation as the best solution for rescued foreign victims but assumes this will be done in accordance with certain careful processes and in the best interests of victims.[92]  A theme of this project is that the governments involved have simply over-presumed that repatriation is in the best interests of most victims. However, the Thai MOU fails to expressly contemplate long-term stays of rescued victims in Cambodia as in their best interests. This was the option the human rights group we assisted urged should be recognized. In no case, however, does the Thai MOU approve of summary repatriations (deportation). Instead, it merely over-assumes repatriation is what victims want or is in their best interests.

6. The Cambodia-Vietnam Agreement (Vietnam Agreement)

 Background: This is captioned an “Agreement” and not a MOU; however Ith Samheng, of MOSAVY, in the Foreword to MOSAVY’s Policy and Minimum Standards, refers to both the Thai MOU and this Vietnam Agreement as the “Memoranda of Understanding with Vietnam and Thailand.”[93] Thus, it is likely intended to be an international MOU and also appears less binding than a typical International Agreement.[94] Some of the same points raised above with the Thai MOU also apply to the Vietnam Agreement’s influence. The Vietnam Agreement is signed only by ministry heads in the respective countries. In this case, Dr. Ing Kantha Phavi signed for the Ministry of Women’s Affairs (MoWA) in Cambodia, and General Le Hong Anh signed for the Ministry of Public Security for Vietnam. MOSAVY is not a party to the document. It appears, however, the Agreement’s implementation is now handled by MOSAVY.[95] There are no indications of any attempt to adopt the Vietnam Agreement as part of Cambodia’s internal law: the Agreement is not signed by Cambodia’s King, its Prime Minister, or the Cambodian Minister of Foreign Affairs, and there is no indication of any special designation by Cambodia’s Prime Minister.

Specific Provisions: Several of the Agreement’s provisions mimic those in the Thai MOU and were already mentioned above. Also similar to the Thai MOU, the Vietnam Agreement seems to express a strong bent in favor of repatriation of foreign victims as actually in their best interests. Articles 11-13 in Part V use mandatory language toward repatriation: “[t]he parties shall use diplomatic channel [sic]. . . for repatriation” and “[r]epatriation shall be arranged quickly, in safety and. . .  in their best interest according to conditions and policies of each Party . . . . “[96]

In all cases, however, “[v]ictims shall be treated humanely throughout the process of protection, repatriation and the judicial proceedings.”[97]  If repatriation is to occur, it must be done humanely, with the best interests of the victims in mind and in accordance with the policies of each country. Such policies presumably embrace safety, security, and an initial determination of whether repatriation is really in the best interests of the victims.[98] In all these cases, shelter and protection are to be afforded to the victims while awaiting any repatriation, and this protection will be given “in accordance with the legal regulation of each state.”[99] Such wording strongly suggests against summary repatriation, if repatriation is even appropriate, and imposes the duty of victim care in Cambodia for some interim period on MOSAVY.

In summarizing the respective positions of the Thai MOU and Vietnam Agreement on repatriation, one may justifiably contest that the “best interests” verbiage in these agreements suggests repatriation is the answer in every case, rather than an option, depending on the circumstances. I suggest this optional view is more in keeping with the spirit and intention of the “victim-centered” approach espoused by MOSAVY itself.[100]

The Thai MOU and Vietnam Agreement employ the “best interests” standard for victims in regard to repatriation and also indicate shelter and protection should be provided according to the internal “conditions and policies” and “legal regulation[s]” of each State.[101] This suggests each State has some level of flexibility in directing its policies and regulations on repatriation. It is also conceivable that the “best interests” standard may be interpreted internally by each State to include a victim’s right to stay in shelters or in aftercare in Cambodia (or in another country) indefinitely. Since these “conditions and policies” and “legal regulation[s]” in Cambodia are set by MOSAVY, we will have to look at its Policy and Minimum Standards (i.e., its Handbook) to see how it interprets “best interests” and how and when it considers repatriation to be appropriate.[102]

7. Vietnam/Cambodia SOP

Background: This document is designed to flesh-out steps seen in the Vietnam Agreement. As a separate document, the SOP appears to amount to something along the lines of a MOU or at most a very basic International Agreement. It is signed by MOSAVY’s representative for Cambodia and the Vice Minister of the Ministry of Public Security for Vietnam. Similar to the Thai MOU, the SOP designates MOSAVY as the “focal authority” in this work, once again suggesting MOSAVY’s primary role in comparison to MOI’s.[103]

 Specific Provisions: These relate mostly to the procedure for victim processing and repatriation for victims initially trafficked from Vietnam. As a result, I consider several of its provisions in the next section (Section III) on actual intended steps in victim handling.

 Summary on International Agreements/MOU with Vietnam, Thailand: Trying to determine the exact weight and efficacy of these is not an easy task. It seems obvious these agreements are more important than tokens of justice, as they are said to be made “between the governments” of the respective countries.[104] In addition, these have spawned an important “Inter-ministerial Cooperation Agreement”[105] on these issues and have established connections to some regional anti-trafficking MOUs such as the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ASEAN MOU)[106] and the MOU on Cooperation against Trafficking in the Greater Mekong Sub-Region (GMS MOU).[107] These additional MOUs are not particularly specific or comprehensive in their protections but do offer some valuable support to victims in general, reinforcing each MOU or agreement above. They have probably also added resolve to multi-state initiatives such as the Coordinated Mekong Ministerial Initiative Against Trafficking (COMMIT) by supporting their joint anti-trafficking efforts, which are still ongoing in the region.

 In sum, the international agreements above authorize MOSAVY and its Thai or Vietnamese ministerial counterparts to issue appropriate regulations and laws to implement the intended handling and protection of victims. MOSAVY has done that in its Handbook containing its Policy and Minimum Standards. Since these MOUs and Agreements are clearly intended to have a governing influence over how things are done within each State, and since MOSAVY is designated as the focal authority in Cambodia, its Prakas, regulations, and policies should govern on repatriation issues in Cambodia.

 8. The “Inter-ministerial Cooperation Agreement” (ICA)

 Background: This document is especially significant because it is a joint effort and understanding between several key ministries in regard to the rights and steps for handling rescued victims. It is signed by the Ministry of Justice (MOJ), MOWA, MOI, MOSAVY, and the Ministry of Health and is dated February 6, 2007.[108] It has been hailed as a breakthrough because of its shared standards and coordination among key ministries impacting rescued victims. [109] It also contains some very useful wording for advocacy on the issue of handling rescued victims. While the significance of this ICA should not be underestimated, it is not captioned an “Inter-ministerial Proclamation” (just an “Agreement”), and there is some disagreement among my Cambodian colleagues as to its real binding effect and intended level of influence.[110] It obviously carries some influence and is remarkable in showing what MOSAVY, MOI, and other ministries have evidently agreed upon.

 Specific Provisions: Several of the provisions in the ICA closely correspond with those seen in MOSAVY’s Handbook. It appears that many of these provisions served as pre-cursors, shaping those later stated in the comprehensive 2009 MOSAVY Handbook. I will thus subsume a discussion of many of the ICA’s provisions into the next section regarding the MOSAVY Handbook, in order to compare the two. Still, some of its unique features are worth alluding to here.

 First, in articles 2 and 3, the ICA defines Victim Support Agencies (VSAs) as including governmental and non-governmental organizations and First Contact Agencies (FCAs), which generally would not be able to offer shelter but may be the first step in victim care and rescue.[111] FCAs and VSAs are valuable to the overall process of victim care, as demonstrated throughout the ICA.

 Second, general provisions in articles 7-9 explain that the entire aim of the ICA is the protection of victims.[112] As in other documents viewed, victims of trafficking are deemed not to be in violation of immigration laws.[113] In fact, article 4 charges the police with notifying victims of their rights in a language they can understand and further requires the police to turn victims over to the care of MOSAVY instead of keeping them in detention.[114]

 Victims again are afforded legal services and protection during case prosecutions against their traffickers. Of note under the ICA is that foreign trafficked victims may gain authorization to remain temporarily in Cambodia for purposes of case prosecutions, and shelters must assist with legal services.[115]

 Third, after rescue, victims are to have their status properly assessed; this involves efforts at a variety of levels, including the police, VSAs and perhaps ultimately, the courts.[116] Importantly, this shows an understanding among the signing ministries of a need for assessment in each case and strongly speaks against summary repatriations, which lack such careful assessments.

 Fourth, the “best interests” standard for victim handling is again espoused in every case via articles 12 and 62.[117] This also supports the need for proper assessment of victims’ needs in each case. Article 12 requires that “best interests” determinations include direct input from victims on their own situations, as age-appropriate, and must be based on each victim’s maturity and ability to make decisions on his/her own behalf.[118]

 Fifth, chapters 9 and 10 of the ICA deal directly with shelters and longer-term services and care of victims. The services that shelters are expected to provide include health, education, vocational-job skills training, rehabilitation (including counseling for emotional wounds), referrals to other service providers if necessary, and reintegration, if safe.[119]

 Shelters should be staffed with appropriate counselors, caregivers, and social workers.[120] Instead of the summary repatriations seen through 2010, shelters are expected to inform victims from the start how long they can expect to provide shelter and other services to the victim and must report their anticipated duration to the government.[121] Similarly, victims are to give an indication of how long they expect to remain in a shelter as well as their consent to such an arrangement.[122] Departure from a shelter must be done with the consent of victims and with their safety first in mind.[123]

 Perhaps most remarkably, the ICA gives shelters authority to act as the legal guardians of victims, in their best interests. Shelters thus have great authority to keep victims in their care, if judged in their best interests, subject to consent of the victim and according to his/her decision-making ability.[124] This authority can be used to attempt to persuade a victim from leaving a shelter (especially in the case of a child) if this would be dangerous, and the shelter can use its guardianship authority in some cases to keep a victim in its custody to prevent re-trafficking of the victim.[125]

 Last, shelters are to insist on safe reintegration and should withhold release (or notify authorities) if it would not be safe to release victims. Shelters should also help released victims in starting a new business if possible.[126]

 9. MOSAVY Policy & Minimum Standards, including its implementing Prakas 852 S.V.Y, 857 S.V.Y. (MOSAVY Handbook)

 Background: Fashioned by MOSAVY, this is the most comprehensive set of standards, rights, and procedures for the protection of victims of trafficking. Issued in 2009, it is an entire Handbook and consists of three main parts: (1) Prakas No. 062 S.V.Y., on the Policy on Protection of the Rights of the Victims of Human Trafficking,[127] (2) Prakas 852 S.V.Y. implementing that Policy,[128] and (3) Prakas 857 S.V.Y. on Minimum Standards for Protection of the Rights of Victims of Human Trafficking[129] (collectively, the MOSAVY Handbook). This Handbook is the chief guide: it is the main template and set of standards applying to issues surrounding the handling of rescued victims.

 MOSAVY issued its Policy and Minimum Standards in accordance with the MOU/International Agreements calling for MOSAVY (as Cambodia’s “focal authority”) to set policies and regulations affecting rescued victims. In doing so, it also attempted to articulate what the “best interests” standard should consist of. Since MOSAVY’s Policy and Minimum Standards were implemented through its Prakas (as contained in the Handbook), they should govern nationally, even as against other government institutions.[130]

 Specific Provisions: For sake of convenience, I have summarized the principles and rights mentioned in the MOSAVY Handbook into seven groupings.

 (a) The “best interests” standard requires an initial case assessment, and a full, intentional case management process from start to finish.

Each victim’s situation must be evaluated on a case-by-case basis. This includes assessment as to whether reintegration into the victim’s family and community is safe or even possible; that is, whether a victim, including a child, should remain in a shelter. Assessment must be comprehensive, and the case management procedure must run its course through the step of Closing. [131] In contrast to summary repatriation immediately after a rescue, a serious case management process must commence and close.

 According to the Minimum Standards, keeping a child victim in a shelter against her will is allowable if this is in the best interests of the child.[132] However, this is so only if steps are speedily taken to locate safe family members.[133] Such determinations simply cannot be made apart from a thorough case assessment.

 (b) Rescued victims are entitled access to a variety of services, including long-term care.        

These services include health services, legal services, counseling, education, and skills and vocational training. Yet victims would be deprived of all of such services under a system of summary repatriations. Both the MOSAVY Policy and Minimum Standards and the ICA clearly embody these protections.[134] According to the Handbook, these services are considered rights.[135] A specific example would be the explicit right to the availability of long-term shelter care when a family member cannot be successfully traced.[136]

 (c) These services and rights are intended to extend up until the case is closed.

Services, including education and skills training, counseling, etc., are to continue through Case Closure, a term defined in the Handbook.[137] This should not happen until it is safe and stable for a victim to return to her community and family, i.e., a case cannot be closed until it is first determined that reintegration is stable and safe.[138]

 The right to the services indicated above extends through both the Rehabilitation and Recovery stages, as defined in the MOSAVY Handbook.[139] Accordingly, victims should be able, if it is in their best interests, to indefinitely stay in shelters and aftercare in order to receive the skills and services they need, or to stay at least until it is safe or viable for them to be repatriated and reintegrated, if ever. [140] In theory, if repatriation is not safe or possible (i.e., a family cannot even be traced), a victim should be allowed to stay in aftercare, and the case should not close. The Handbook is devoid of any exclusions of this benefit for foreign rescued victims.

 (d) Victims should have an initial right to decide if they even want to reintegrate somewhere, or remain in aftercare, and with whom they wish to live.

A victim appears to have a choice of either returning to her community or receiving continued care and rehabilitative services until such time as she is ready and able to return, if that should happen.[141]  Reintegration is a victim’s personal decision, as specifically defined in the Handbook.[142]Interestingly, the Policy specifically provides, in a section heading, that Reintegration is in the victim’s community of her choice, even including integration into an NGO (presumably meaning a shelter).[143]

 In similar fashion, the Minimum Standards specifically state: “Strategically, where and when reintegration will occur will depend on the victim’s decision. Reintegration may be with their original family and community or with a new family and community.”[144] Victims are clearly given a choice as to where they want to live, either with their own family and community or in another family or community, including an NGO.[145] The ICA is in support, giving a victim a right to live in a shelter of her “own accord.”[146]

 (e) Victims have the right to information, and to be heard and consulted in their own case management.

Victims not only have the right to information but must also be allowed to give informed consent in their care plan. They have the right to receive consultation and to have their own ideas heard and respected in regard to decisions affecting their rehabilitation and their futures.[147]

 In general, this right involves more than victims just receiving information: it allows direct participation and even decision making authority in the victims’ cases, including as to closure.[148] This does not contemplate unbridled decision-making by the victims in all cases. For child victims, input must be age appropriate and other factors, such as whether her own family is stable or complicit in the trafficking, must be considered.[149] These additional considerations are consistent with those noted in the ICA.[150] For women, the intent is to respect and to actually honor their ideas, not in an absolute sense, but in accordance with practicality or law. For instance, in several cases a victim may express a desire to leave a shelter but that may not be safe.[151] In other cases involving adults, an important question is whether the victim is acting independently enough to make a proper decision or whether a trafficker is still pulling the victim’s strings.

 Admittedly, such age-appropriate independence assessments and similar standards for determining a victim’s appropriate decision-making authority in her case are vague and ambiguous. They offer little guidance across a spectrum of ages and situations. However, these issues are still governed by the “best interests” standard in each case, and hopefully a caseworker has enough common sense and dedication to know how to evaluate the matter.[152]

 In summary, a victim’s right of participation generally includes his/her right to help structure and have access to the case plan, to decide on referrals for additional services, and to be consulted in making a decision to close the case.[153] And yet this general right of victims to make their own decisions and help structure their care is fundamentally at odds with the reality of summary repatriations in which victims really had no say.[154]

 (f) Foreign Rescued Victims of Sex-Trafficking Shall Have the Same Rights as Cambodian Victims.

All the above rights, standards, and protections afforded in the Policy and Minimum Standards shall inure to the benefit of foreign sex-trafficking victims to the same extent they apply to Cambodian victims.[155]The MOSAVY Policy is explicit on this: “The case manager for foreign victims shall ensure that victims of human trafficking receive the necessary rights and services afforded to Cambodian victims, without any discrimination, from the beginning of the process of case management until closing the case.”[156] As a result, Vietnamese, Thai, and other victims should have the same services and rights as outlined above. If staying in aftercare for an indefinite time frame (due to necessity and “best interests”) is allowable for Cambodians, the same standards should apply to Vietnamese and any other foreign victims. If this runs afoul of immigration issues, I submit the immigration standards must yield an accommodation to the victims, since the generic rule should yield to the specific right.[157]

 Whether adhered to or not, the acknowledged necessity of providing these services to all victims, including foreigners, strongly suggests against the summary repatriations of Vietnamese, Thai, and any other victims.

 10. Decision establishing the National Task Force (NTF)

 This is no longer a binding foundational document as the NTF has been replaced by the National Committee to Lead the Suppression of Human Trafficking, Smuggling, Labour, and Sexual Exploitation in Women and Children (NC/S.T.S.L.S.).[158] However, its purposes have likely been incorporated into the new work of the NC/S.T.S.L.S. It appears the Decision was signed by the Prime Minister on July 20, 2007.[159] If so, this would have given the creation of the NTF great significance. However, the Decision, in English draft, offers very little substance regarding specific rights and protections of rescued victims. Its only real value is in establishing the NTF (now NC/S.T.S.L.S.), which shows a serious national effort to develop a task force/committee approach exclusively dedicated to combatting trafficking.[160]

 Articles 1 and 3 of the Decision show the NTF was created to implement the International Agreements/MOUs not only with Vietnam and Thailand but within the entire region (including the ASEAN and GMS MOUs and COMMIT work).[161] It was also charged with working closely with the U.N. Inter-Agency Project on Human Trafficking (UNIAP) in Cambodia and in assisting the CNCC with its five-year plan, and finally it was expected to establish an “inter-ministerial facilitation group” for internal coordination. In this sense it was a significant first step by Cambodia in seeking to centrally coordinate several disparate anti-trafficking efforts on an internal and international scale. Since this involved cooperation among several States, repatriation and reintegration issues would certainly have been one of its key concerns.

 11. Decision on the Guideline for the Protection of the Rights of Trafficked Children (Children’s Guideline, or Guideline)

Background: The Children’s Guideline, issued by the CNCC on December 20, 2007, should have the effect of any Decision at the ministry level indicated in the hierarchy of Cambodian law.[162] Ith Samheng signed this document in his capacity as both head of MOSAVY and Chairman of the CNCC on December 28, 2007.[163] It also had the supporting endorsement of the Prime Minister.[164] It appears the CNCC is inactive, but the Children’s Guideline is remarkable for its expressed values on behalf of children suffering sexual exploitation, with these values likely remaining intact within MOSAVY’s current initiatives. Below, I highlight some of the salient provisions in the Children’s Guideline, in relation to repatriation.

Specific Provisions: The Guideline indicates repatriation is part of a child’s choice and is not mandated in all situations. It states a child’s views “shall be taken into consideration when considering whether s/he should be returned to the country of origin . . . and/or stay in a shelter.”[165] Clearly, this reflects the view that repatriation may not even happen—let alone that it would happen summarily and in haste. In general, a child also has a right to information about repatriation, informing that choice.[166] A child has age appropriate decision-making authority and rights to be consulted and to give consent.[167] However, a child’s choice is subject to final say by the authorities, depending on age and other circumstances.[168] In cross-border situations, the prosecutor apparently is supposed to get involved at the embassy/consulate level in helping a child receive a temporary place to stay.[169]

 Similar to other standards, Cambodian ministries and institutions are admonished not to treat foreign trafficked victims (children in the case of the Guideline) as illegal immigrants but instead should “legalize their stay such as [by the] granting of a temporary visa.”[170] This is very important. The Children’s Guideline is in some respects very helpful in that it says more in acknowledging the need to provide immigration status help to child victims than does MOSAVY’s own Policy and Minimum Standards. This greater accommodation to children as expressed in the Guideline is likely due to its focus on children. In contrast, the MOSAVY Handbook is aimed more broadly at all human trafficking and thus is less specific and comprehensive on the rehabilitative needs of children to stay in shelters, even though it certainly also addresses children.

 The Guideline adds: “In cases where a trafficked child is to be repatriated,” the “competent authority” in Cambodia is required to coordinate with the origin county and ensure this can be done safely; help for costs should be sought from NGOs/IOs like the UN and IOM.[171] In terms of detail, the Guideline is not all that specific or helpful in giving actual institutional guidance on the criteria in determining when repatriation is appropriate. It still importantly benchmarks the process by clearly indicating repatriation of children should never happen if that would be involuntary, unsafe, or unwise.

12. Vietnam Handover Guideline

Background: This document did not come into existence until at least November 20, 2010, which was after the initial research for this project and quite likely, in part, as a result of it.[172] It was prepared by MOSAVY (with assistance of the IOM) after the human rights group we served presented this research to MOSAVY, indicating gaps in the cases of foreign victims and improper deviations from standards inherent in summary repatriations. Prior to the Vietnam Handover Guideline, the steps for actual repatriation of Vietnamese victims consisted of a vague amalgam of very hard-to-understand steps listed in the SOP, some wording in various other documents, and a collection of summary internal charts and diagrams possibly meant to flesh that out (including charts from IOM or MOSAVY).[173] Given its detail, the Vietnam Handover Guideline is probably sufficient to close most of the gaps existing in the writings prior to its issuance. I have already indicated that an important conclusion from this project is that the vagaries surrounding the process of handling foreign victims, including MOSAVY’s apparent lack of any clear written guidelines on the matter, was a significant cause of summary repatriations.[174] The Vietnam Handover Guideline is probably clear enough to avoid that situation in the future.

 Specific Provisions: Since this effectively is the road map for Vietnamese repatriation, it is covered in Section III below. It reflects the standard that ought to be followed in this situation. However, one unmistakable feature of the Vietnam Handover Guideline is its clear call for all repatriations to be voluntary; it includes interviewing processes to ensure this. The Steps Chart previously noted and used in this author’s research similarly called for assurances that all repatriations would be voluntary;[175] however, the Vietnam SOP includes no such indications of voluntariness.

 C. Summary on Standards

The substantive impact of the legal standards analyzed above shows that summary repatriations of victims should never occur. Victims are not illegal aliens and should have a say in what happens to them. In some cases, repatriation is not even a viable alternative. It may not be in the best interests of the victim. Special consideration should be given to children. Applying this to the situation of victims from Vietnam, Thailand, and elsewhere, it would be helpful to look at the case management steps that should be followed after a victim’s rescue. I turn to this and conclude.

 

III. Specific Steps In The Repatriation Process

In this section, I summarize ascertainable steps in the repatriation process, including determinations of its suitability. I start with a general section, which should be applicable for all sex-trafficking victims, domestic or foreign, including the occasional Thai victims and the more common Vietnamese victims. In some ways, applying these steps to Cambodian victims and foreign victims seems odd, since Cambodian victims would not have procedures in place for issues like repatriation and foreign family identification. However, some steps are common to both domestic and foreign victims. As indicated above, the same rights of Cambodian victims must also extend to foreign victims. I will treat the specific situation of Vietnamese victims secondly, as specific steps for that process are now available. In the case of other victims, such as from Thailand or other countries, such specific steps have not been established and apparently do not exist at this time.[176] This lack of specific steps for repatriation of other foreign victims could be due to their relative infrequency or shorter stays in comparison to Vietnamese victims. In any event, the general steps indicated below should apply at some level to all victims, regardless of their country of origin.

 A. General Steps (All Victims, Including from Other Countries)

In essence, a compilation from various sources is necessary to expound on these steps. However, the primary source for this information is the MOSAVY Handbook including its Policy and Minimum Standards (especially articles 6 and 7).[177]

Starting with Chapter II, article 7 of the Minimum Standards, one can see a good outline of the steps to be taken from the time a victim of human trafficking is identified to the time his/her case is closed. This is known as the “case management process.”[178] During this process, service providers have the responsibility to shelter the victims and help them reintegrate into a “normal life” (if that is even possible).[179]

 This case management process consists of 10 steps: (1) Victim identification, (2) Crisis intervention, (3) Referral, (4) Reception, (5) Case-planning, (6) Assessment, (7) Recovery, (8) Reintegration, (9) Follow-up, and (10) Case closure.[180] Article 7 notes that these steps are not always sequential as they may overlap and, in some cases, can be simultaneous.[181] In that regard, I will switch the order of the first two steps for logical presentation purposes below.

 Victim identification is the process of determining whether an individual’s or group of individuals’ experience is consistent with being trafficked as outlined in the Supplemental Protocol.[182] While victim identification should start immediately after a rescue, it is a process that may continue well into the case management phase. Victim identification is usually conducted by interviewing the suspected victim in a safe place, consistent with the principles in the Convention on the Rights of a Child.[183]

 The police will often take initial interviews, along with victim statements, after a rescue, and the police have the right to detain rescued individuals for this purpose.[184] The interviews must be conducted as soon as possible after the rescue operation, and if not completed within two days, the police must seek “guidance” from a prosecutor.[185]

In these interviews, the national police, or a VSA (Victim Support Agency) if it first encounters the victim, has a duty to make a preliminary determination (i.e., “provisional identification”) as to whether the rescued person is a victim of trafficking.[186] A prosecutor or judge makes final determinations. If such determinations are at odds with that of a VSA’s indicating that an individual is in fact a victim of trafficking, the VSA may investigate and add additional information supporting its view.[187]

Victim identification interviews “shall be kept as brief as possible by limiting questions to essential information, such as name, age address, or place of birth, perceived threats to safety, and the immediate needs of the victims.”[188] In addition, “[a]t all stages of interviewing trafficked children [i.e., including subsequent interviews as to a child’s repatriation interests], the investigator/officer and interpreter/translator should be of the same gender as the trafficked child, dressed in civilian clothes, trained in administering child friendly/sensitive interview methods and knowledgeable about the issue of child trafficking.”[189]

After identification of a person as a victim of trafficking, the police (and VSA if involved) must notify the victim of her/his rights and services available to them in a language s/he understands.[190]

After this, the police are expected to send the victim to the “Provincial/Municipal Department of MOSAVY” (i.e.,”DoSAVY”) to await the next step of referral to an NGO/Shelter.[191]

 Crisis intervention refers to the “immediate short-term assistance to victims” who are unable to cope effectively with their present situation due to their past experiences that produced “emotional, mental, physical and/or behavioral imbalances.”[192] Crisis interventions may occur either simultaneously with “victim identification” or some time later in the “rehabilitation process.”[193]

 In this process, the police may perform raids and rescues to remove victims of trafficking and work with social workers to ensure that they are taken to a safe place. In effect, crisis interventions are required in any situation where a person’s psychological and physical safety is at risk. This includes situations where reintegrated victims notify service providers that their trafficker has appeared in their village.[194]

 Furthermore, the “need for a crisis intervention is to be determined according to the needs of the victim” and must be carried out “with the officials, especially in cooperation with . . . social affair officials, NGO service providers, private service providers, and Embassy and/or immigration officials (in case of foreign victims).”[195]

 Referral is the act of “referring or transferring the client to appropriate services” with the informed consent of the victim.[196] In this process, the referring organization must clearly communicate the client’s “expected results” to the receiving organization so that it may better respond to the victim’s needs.[197]

 The Minimum Standards provides that a referral is to be based on the victim’s own decision, according to his/her requirements, at any time during the assistance process. The victim’s needs must come first.[198] Any prejudice against victims as to the decision on referral is not allowed, and this supports foreign victims.[199]

 Reception refers to the act of receiving and providing initial services to the victims; this can be at various locations, including police stations, shelters, hospitals, and skills-based training facilities. [200] This is a very important first step in victim care and is the first impression a victim will have of a service agency. Service providers are expected to build close rapport with the victims and use a “gender sensitive” approach according to each victim’s special circumstances.[201]

 Specifically, service providers have the responsibility to “orient the victim to their necessary physical surroundings, and also explain to them their purposes and roles, principles, rules and necessary regulations” of living in those managed premises; in short, they must make the victim feel as comfortable as possible before any intake interviews.[202]

 Case planning is the process of setting goals and objectives for the successful resolution of the victim’s case; the victim is actively encouraged to participate in his/her own case planning.[203]  Case planning shall be conducted as soon as possible after victim identification and shall address the victim’s needs; the victim must be informed and consulted about all activities in his or her case planning regularly.[204]

 The victim’s active participation in case planning is particularly emphasized in the Minimum Standards. In addition to guaranteed confidentiality of the case planning, the Minimum Standards stipulate that the victim is to be provided his or her plan on request and that the plan can only be developed with the victim’s consent.[205] Obviously, this should have a direct effect on any decision to repatriate, if the victim has never consented to it.

 Further, somewhere within the case planning stage (if not prior to that or in the next stage, “Assessment”), victims shall be given the right to seek legal action, including compensation against their abusers/traffickers.[206] Police, prosecutors, and VSAs should provide victims with information on legal rights in the first instance (and this could happen at initial interviewing just after rescue).[207] Service providers shall inform victims about legal issues and procedures for filing a complaint against their perpetrators and offer help to victims in contacting legal services; this information shall be given in a language the victims can use and understand.[208] In cross-border cases, if a victim “agrees to be a witness until the end of prosecution against a suspect, the prosecutor must inform the immigration police of this case, in order to secure temporary authorization for the victim to remain in Cambodia.”[209]

 In addition, for children without legal documentation, the “relevant competent ministries and institutions should assist them to immediately legalize their stay such as [by] granting of a temporary visa.”[210]

Assessment refers to the process of gathering, reviewing, and evaluating specific information related to a victim’s case for the purpose of keeping track of the victim’s progress and enabling service providers to detect the successes and needed changes to the overall case planning.[211]

 Assessment is a “multifaceted, ongoing process” including interviews and detailed assessments on issues like “health, risk [including feasibility of a victim’s return to his/her community], socio-legal, shelter, staff, community, family, skill and ability and livelihood assessments of the victims”; it must be conducted at appropriate times for the victim.[212] Service providers shall conduct, at a minimum, “an annual assessment of the quality of services offered.”[213]

 Recovery defines the process of healing for each victim from his/her horrific and incapacitating experiences; it involves helping develop the person’s skills, capacity, and esteem to enable them to function in society.[214] The practical steps include, among others, counseling, life skills, medical assistance, and vocational skills training. Each victim’s unique experience also means his/her recovery process will be unique, and service providers must ensure that the recovery process serves the victim’s individual needs.[215]

 In this endeavor, victims “shall have the right to make informed decisions about which services will be most helpful or appropriate for them and when they want to engage in these activities.”[216] Thus, victims have the right to either accept or decline the services listed above. Children especially shall be given opportunities for age-appropriate activities to aid their recovery.[217]

 Reintegration, if it can be successful, serves as the ultimate goal when aiding victims of trafficking. It is the process of returning and resettling a victim into his/her family and community based on a victim’s personal decision.[218]

 Victims have significant discretionary power in this decision, including if, when, and with whom reintegration should take place, as this can be a new community instead of the victims’ original families or communities.[219]

 Reintegration is speculative. It will only begin after proper assessment of both the particular nature of the victim and the location of reintegration is completed. Victims will begin this process on a trial basis, with their safety regularly assessed by service providers to see if additional assistance or support is necessary (special assistance and counseling are expected for children).[220]

 Obviously, in the case of Vietnamese or other victims (such as from Thailand), “Reintegration” might first require Repatriation into another country as a separate step (i.e., this would not be the case if the victim chose and was allowed to reintegrate into a new community in Cambodia). MOSAVY’s Handbook acknowledges this, yet it fails to specify any particulars in that process. In one instance it even refers very confusingly to “repatriation” and “deportation” synonymously (inconsistent with the idea of a “reintegration”).[221] However, the specific steps listed below for Vietnamese victim repatriations might offer an approximate guide that is clearer for repatriations to other countries, in which out-of-country Reintegration could occur.

 Follow up refers to the process of “checking on the current status and evolving needs of the victim after reintegration.”[222] The follow-up case plan shall prioritize the victim’s needs and be prepared regularly and flexibly. The number of follow-up visits should be arranged between the victim and service provider and conducted in a discreet manner in adherence with the victim’s wishes. Finally, case workers have a responsibility to “link victims to services available in their community or village of origin.”[223]

 Case closure is the final step indicating the end to service. Successful case closure can be determined by the following criteria: (1) the stability and sustainability of the victim’s family relations, (2) the economic stability of the family, (3) the reintegrated person’s ability to participate in daily activities, and (4) enough proof indicating that the reintegrated person is “economically and psycho-socially” stable.[224]

 Case closure is only permitted once it is ensured that the victim is healthy, emotionally and financially secure, and is confident in her ability to keep her livelihood. A victim “shall be consulted” in any decisions to close her case, and a hasty case closure, including for uncooperative victims, is unacceptable.[225]

 B. Vietnamese Victims

Specific steps in the case of Vietnamese victims come primarily from the Vietnam SOP for repatriation and the Vietnamese Handover Guideline indicated above. A smattering of other details may come from Vietnamese-specific provisions located in a variety of other documents, such as the ICA. To simplify matters, I have included the entire Vietnamese Handover Guideline below, inserting additional details and clarifications only when necessary. Presumably, these more specific Vietnamese steps supersede the general steps indicated above for all Vietnamese victims. Understandably, an exact sequencing of steps is not always possible, as some steps can occur simultaneously or overlap.[226] The specificity of these Vietnamese steps could be instrumental in shaping similar steps for victims from other countries.[227]

1. Rescue and recovery

Rescue is conducted by the Ministry of Interior [MOI] police from the Department of Anti-Human Trafficking and Juvenile Protection (DAHTJP) of the General Commissariat of National Police and at times in collaboration with NGO partners. The Anti-trafficking Police refer rescued women and children to the [DoSAVY] shelter whereupon victims are interviewed and stay for up to twenty-four hours.[228]

 [DoSAVY] refers victims to NGO shelters to receive appropriate support such as shelter, food, medical treatment, psychological support, vocational training etc.[229]

 Vietnamese trafficked victims will be offered the option of voluntary repatriation to Vietnam.[230]

 Initial interviews would also be used to make preliminary identifications of a victim of trafficking, as stated in the general steps above.[231] Individuals identified (preliminarily) as victims should be informed of their options and rights.[232]

 At this point, an implied step (one not expressed at all in the Vietnam Handover Guideline nor in the SOP) must be assumed.[233] This implied step takes into account what happens if the victim declines the offer of repatriation. So, I have inserted steps 1.a. and 1.b. into the process to help depict that situation.

 1.a. If the victim does not wish to be repatriated

 In this case, the international standards to which Cambodia subscribes, such as the Supplemental (Palermo) Protocol, require that Cambodia take steps to allow the victims to legally stay in Cambodia and receive services until such time as repatriation is feasible and safe, if ever.[234]

The Children’s Guideline is more imperative, stating that for undocumented children, “relevant competent ministries, institutions should assist them to immediately legalize their stay such as granting of a temporary visa.”[235] Also, if a victim wishes to remain as a witness in a prosecution against suspects of trafficking, the prosecutor must inform immigration of this so the victim can receive temporary authorization to remain in Cambodia.[236]

Assumedly, the same general steps indicated above for all victims should apply for those who choose to remain: Case Planning, Rehabilitation, Reintegration, and so on through Closure.[237]

             1.b. If the victim does wish to be repatriated

In this case, continue with the steps below.

2. Requesting Voluntary Repatriation to [MOSAVY]

Vietnamese trafficked victims who express an interest in being voluntarily repatriated to Vietnam are interviewed [a second interview] by Vietnamese-speaking NGO caseworkers within the shelter. The details of the interview are to be recorded using a trafficked victim’s case data form issued by [MOSAVY] (Annex 5).[238]

 The case data form is in three languages: Khmer, Vietnamese and English. The form must be filled in Khmer and Vietnamese languages. The victim’s photo (photo size 4×6, straight from the front) must be attached on the first page of the form. One form per person.

 The victim is required to have their fingerprints taken using the ‘Victim declaration for voluntary return and request for repatriation to home country form’ (attached to the case data form) attesting to their voluntary decision to be repatriated to Vietnam. If victims are minor (below 18 years of age), the fingerprints of [a] caregiver or parent/ guardian/ are required.

 NGOs/ shelter should submit official request letter addressed to the General Director of Directorate of Technical Affairs of [MOSAVY] with support document[s] as follows:

1.Letter requesting repatriation (Annex 3)

2.Summary case interview record (Annex 4)

3.Trafficked victim case data form in four copies (/Annex/5)  

4.Victim declaration for voluntary return and request for repatriation to home country form with victim’s fingerprints (attached to the case data form)

5. Six victim’s photos, size 4×6.[239]

 3. Requesting Vietnamese Embassy in Phnom Penh for Identification and Repatriation

 Upon [MOSAVY’s] receipt of the request for repatriation from NGOs/ shelter, the administrator of the Anti-trafficking and Reintegration Office (ATRO) at [MOSAVY] reviews the request and support documents and assigns the case a code number. ATRO requests the Vietnamese Embassy for victim identification and repatriation.

 ATRO at [MOSAVY] liaises between the Vietnamese Embassy and the relevant NGO shelter to arrange a mutually convenient date and time to conduct an interview [a third one] with the victim for verification and identification.

 An official from the Vietnamese Embassy conducts an interview with the victim at the NGO shelter in the presence of ATRO officials and the NGO’s case worker.”[240]

 4. Family Tracing in Vietnam

 The Vietnamese Embassy makes a formal request to the Vietnamese Government to undertake family tracing and assessment, and sends the interview result to the Ministry of Security and Police (MPS) who are charged with this task. The success of the process is, in part, dependent upon the clarity and quality of the information gathered by the NGO and the Vietnamese Embassy in relation to accurately identifying the location of the family.[241]

 The Vietnamese Embassy informs [the] ATRO Administrator at [MOSAVY] in writing attaching the result of the family tracing, and whether the victim has been identified or not, within the maximum period of 30 working days.[242]

It appears from the SOP that Vietnam must give a response within this allotted time (thirty days) as to its intent to accept the victim even if successful identification and family tracing are incomplete.[243] The SOP seems to corner the Receiving Party (Vietnam) by requiring a conclusive decision on victim acceptance within this time, whether ready or not. This creates an awkward situation for Vietnam in terms of victim care for an individual whose identity is unclear.[244] Vietnam could hedge against this uncertainty by simply indicating its refusal to receive the individual, precisely due to this lack of identification within the thirty days. In that situation, it is not clear what should happen next. Should the victim remain in Cambodia permanently, or will a new thirty-day cycle commence? The SOP is silent. It seems the Handover Guideline anticipates this situation better as it attempts to give a solution in Step 5.[245]

5. Issuing of Laissez-Passer

 Upon [the Vietnamese authorities] receiving the family tracing result from the Ministry of Public Security (MPS) [,] the Vietnamese Embassy in Phnom Penh notifies the ATRO Administrator at [MOSAVY].

 If family tracing fails as a result of inconclusive details, [the] ATRO Administrator at [MOSAVY] will cooperate with [the] NGO shelter to collect more information to be provided to the Vietnamese Embassy.[246]

 If family tracing is successful, the Vietnamese Embassy in Phnom Penh will issue the Laissez-Passer to the victims. [The] Laissez-Passer will [also] be sent to the ATRO Administrative [office] at [MOSAVY] for further procedure[s].[247]

The Laissez-Passer is issued by the Vietnamese Embassy in Cambodia as a kind of entry permit to Vietnam.[248]

6. Developing Handover-reception Plan and Agreement on the Repatriation Schedule

 Within 5 working days upon receipt of Laissez – Passer, the ATRO Administrator at [MOSAVY] consults with the Vietnamese Embassy and NGO shelter to set the repatriation date and international border gate, which is the nearest to the temporary (shelter) center where the victims will be staying and supported in Vietnam.[249] The agreed repatriation date shall be confirmed by the Vietnamese side.

 The ATRO at [MOSAVY] prepares the list of escorting staff and forwards the list to the Vietnamese side. In return, Ministry officials and NGOs will provide the equivalent list of escorting staff to [MOSAVY] one week before the repatriation takes place.[250]

 The following individuals comprise the basic escort team. Each has a specific role in the repatriation process.

1. One Representative from the [MOSAVY];

2. One Representative from the Provincial Department of Social Affairs, Veterans, and Youth Rehabilitation [DoSAVY] of the victim origin provinces and the provinces bordering Cambodia-Vietnam where the handover-reception takes place;

3. One Representative from the Vietnamese Embassy in Cambodia;

4. One Representative from the Department of Immigration of the General

Commissariat of National Police, the Ministry of Interior (or Anti-Trafficking police);

5. One Representative from each NGO shelter currently supporting the victims(s);

6.  One Representative from funding agency (optional).[251]

7. Administrative process in preparing repatriation

 Upon [ATRO’s] receipt of the Laissez-Passer from the Vietnamese Embassy and confirmation on the agreed date, a letter is prepared by the ATRO Administrator on behalf of the Minister of [MOSAVY] to the Director General of the General Commissariat of National Police, Minister of Interior [MOI], to request for a Cambodian exit visa[252] and a waiver of any fees normally paid when leaving the country. Attached to the letter is the original of the Laissez-Passer. The request approved by the Director General [of MOI] is passed to the Department of Immigration for issuance of the exit permit.

 The ATRO at [MOSAVY] prepares handover documents, which consist of:

1. Handover document with the names of victims, handover and receiver, and witnesses.

2.  Laissez-Passer issued by the Vietnamese Embassy with the Exit Permit issued by the Department of Immigration of the General Commissariat of National Police, MOI.

3. Victim case data form (to be handed over to any institution or NGOs providing support to the victims in Vietnam).

4. Other documents related to victims.[253]

 According to the Steps Chart used previously, IOM Vietnam, as a relevant and guiding IO, actively participates in this process. It helps set the repatriation date and receives several documents including: (1) a case data form, (2) the laissez-passer, (3) an arrival notification, and (4) an escort list of victims.[254] It apparently has assisted in the actual handover of the victims into Vietnam.[255]

8. Notification of the Department of Immigration

 The ATRO Administrator prepares the documents on behalf of the Directorate of Technical Affairs at [MOSAVY] to be sent to the Cambodian Department of Immigration and General Commissariat of National Police, MOI. The documents include a request for one official from the Department of Immigration to be assigned to accompany the repatriation to the border. Documents also include a border arrival notification and a list of all participants taking part in the repatriation.[256]

 9. Return and Reception

 On the date of repatriation, all participants taking part in the repatriation including victims and escorting staff should meet at an agreed gathering point notified by the ATRO official of [MOSAVY], to travel together to the international border entry point, which is agreed by [the] Vietnamese side.

 Upon arrival at the border, the representative from the [Cambodian] Department of Immigration is responsible with facilitating the group to cross [the] border into the handover-reception location in Vietnam.

 The victims are interviewed by the Vietnamese police for verification and identification to ensure that the victims’ information matches the record in the documentation.

 Once official handover has been carried out between the Cambodian [MOSAVY] and the Vietnamese police acting as the receiving party, both parties will sign the handover document. A brief handover meeting is held between the two delegations to discuss any relevant issues related to repatriation.[257] Victims are introduced to the representatives of the relevant government department who will accompany them to their home/ NGO shelter.[258]

 At this stage, I include two other steps not included specifically in either the Vietnam SOP or in the Vietnam Handover Guideline. These are at least implied and are necessary in any event to complete the process in compliance with the steps indicated above for all victims.[259]

 10. Reintegration and Follow-Up (Similar to Domestic)

Various groups in Vietnam, including the Vietnamese Women’s Union (WU), the Department of Social Evil Prevention (DSEP), the Department of Labour, Invalids and Social Affairs (DOLISA), and NGO/ shelters shall provide support, recovery, and follow-up to victims.[260]

 11. Case Closure (Same as Domestic)

This occurs when the victim’s relations with family are “stable and sustainable,” the economic condition of the family is stable, and the victim can participate in “usual and regular daily activities” such as schooling, job, or vocational training.[261]

 a) Summary on Steps

As can be seen from the above, specific steps for handling the repatriation of foreign sex-trafficking victims in Cambodia are missing from MOSAVY’s Handbook. However, at least in Vietnam, steps are indicated, albeit from a compilation of various sources with different levels of legal force. In the case of Vietnamese victims, many of the steps appear to be something worked out more in practice (customary) with assistance from organizations like IOM. Although the Vietnam SOP is supposed to be the governing document, it is almost incoherent in terms of explaining an understandable system. 2010’s Vietnam Handover Guideline, coming after our initial research and reporting, provided much needed clarity, and as a result, sufficiently clear steps now exist.

 In all cases, the above shows repatriation and reintegration require the consent of the victim.[262] Accordingly, the practice of summary repatriations in the past was improper and hopefully will fade away as a distant memory. Involvement of IOs and NGOs in the process has helped safeguard the proper process.

 

 IV. Conclusion

I have attempted in this set of articles to address the former rash of summary repatriations of rescued victims of sexual exploitation back to their homelands of Vietnam and elsewhere. Such repatriations are unjust and are likely to place rescued victims back into positions of vulnerability. In such cases, rescue and reintegration only complicate matters. I have attempted to show by an examination of relevant standards and steps, including those already in effect as of early 2010, that this course was clearly improper. In fact, repatriation itself may even be improper. Some rescued victims are simply better off staying in Cambodia, and this is often indicated in their own choice. While a hard pill to swallow, acceptance of this fact is required in the law, as each victim’s case has its own prescription.  This is the position of the human rights group we came to serve, and it seems just.

 As indicated in the Introduction to Part I, at least three conclusions from this research project were evident, and I state them in a slightly altered way in summary here. First, MOI seemed to be running its own summary repatriation show. In order to prevent summary repatriations, it was clear greater single-mindedness and coordination was needed at the ministerial level, and MOSAVY was tasked with leading and pulling this together. I am informed the situation has improved. Second, the “best interests” standard for victims, including the many child victims, is a good one. It calls for a careful assessment of each victim’s case and shall be applied equally to foreign victims. This standard does not permit summary repatriations to save costs and time, and if applied correctly, it would not even allow repatriation as an acceptable solution in some cases. The best interest of foreign victims is not synonymous with repatriation, despite contrary assumptions of many, and a careful assessment is imperative. Third, a significant contribution to the problem of summary repatriation was MOSAVY’s evident lack of specific written steps in its standards, indicating how it should adequately assist foreign victims. In essence, drafting glitches created a void with no real alternatives to repatriation. It appears this issue has now largely been resolved.

 Of course, gaps still remain in the system, including the need for changes in the law reflecting the status of victims. For instance, issuing special visas for trafficking victims to remain in shelter care for longer durations is important. Improving communications with shelters and service providers is always an ongoing need. Initiatives such as the National Plan of Action and victim identification work with several IOs (UNAIP recently) indicate Cambodia seems sincere in its efforts to improve the situation.  In sum, justice requires an individual assessment of each victim’s case. This may not be convenient, but it is in everyone’s “best interests,” including those of the States involved.

 


[1]  See National Plan of Action on the Suppression of Human Trafficking, Smuggling, Labour, and Sexual Exploitation (S.T.S.L.S.) 2011-2013 (2011) (indicating the existence of victims from Vietnam and Thailand in Cambodia) [hereinafter “National Plan of Action”].

[2] See Patrick M. Talbot, Concerning Summary Repatriations of Sex-Trafficking Victims Out of Cambodia (Part I of II), 16 Gonz. J. Int’l L. 68, 69-72 (2013) [hereinafter “Part I”].

[3] See id.

[4] See generally Part I, supra note 2.

[5] See Part I, supra note 2, at 72-94. Terms such as “systems” or “structures” in Cambodia should be understood loosely, as these often must to be constructed or implied from institutional practice and principles, rather than something explicit in clear texts. This is generally true for several aspects of Cambodia’s government, and is certainly so in this issue involving rescued victims.   

[6] See Part I, supra note 2, at 88-94.

[7] See id. at 72-87.

[8] The standards and institutions discussed are those that were identified at the time of our project assistance or shortly thereafter. Since the start of the project for the human rights group in 2010, other legal standards may have emerged, and attempts have been made to identify and include those here as well. I confess I may not have captured every standard applicable, despite trying, and other standards are likely still emerging. Such standards could be included in any subsequent writings. One subsequent standard is the National Plan of Action, supra note 1, which emerged after 2010. However, it adds little to the substantive provisions already existing; therefore, I do not give it great attention in this Part. Rather, it is a highly necessary procedural and coordinating device among the various actors. Surprisingly, some standards, like the Immigration Law, were remarkably irrelevant or lacking in detail on the issue. See generally Royal Kram No. 05/NS/1994 on Immigration (Sept. 22, 1994) [hereinafter Immigration Law]. However, this Law says almost nothing about the repatriation of trafficking victims. See generally id. However, I still make some reference to it and other laws as appropriate.

[9] Convention on the Rights of the Child, opened for signature Sept. 2, 1990, 1577 U.N.T.S. 44 [hereinafter Child Convention].

[10] Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature Sept. 6, 2000, 2171 U.N.T.S. 228 [hereinafter Optional Protocol].

[11] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, opened for signature Nov. 15, 2000, 2237 U.N.T.S. 319 [hereinafter Supplemental Protocol] (also known as the “Palermo Protocol”) (adopted by Kram No. NS/RKM/0106/004 on Jan. 18, 2006 as law in Cambodia).

[12] United Nations Global Plan of Action to Combat Trafficking in Persons, G.A. Res. 64/293, U.N. Doc. A/RES/64/293 (Aug. 12, 2010) [hereinafter Global Plan of Action].

[13] Memorandum of Understanding Between the Gov’t of the Kingdom of Cambodia and the Gov’t of the Kingdom of Thailand on Bilateral Cooperation for Eliminating Trafficking in Children and Women and Assisting Victims of Trafficking, Cambodia-Thailand, May 31, 2003 [hereinafter Thai MOU].

[14] Agreement Between the Royal Gov’t of Cambodia and the Gov’t of the Socialist Republic of Vietnam on Bilateral Cooperation for Eliminating Trafficking in Women and Children and Assisting Victims of Trafficking, Cambodia-Vietnam, Oct. 10, 2005 [hereinafter Vietnam Agreement].

[15] Cooperation Agreement Between the Royal Gov’t of the Kingdom of Cambodia and the Gov’t of the Socialist Republic of Vietnam on Standard Operating Procedures for the Identification and Repatriation of Trafficked Victims, Cambodia-Vietnam, Dec. 3, 2009 [hereinafter Vietnam SOP]. None have been developed for Thailand as of this writing.

[16] Agreement on Guidelines for Practices and Cooperation between the Relevant Government Institutions and Victim Support Agencies in Cases of Human Trafficking (Feb. 6, 2007) [hereinafter ICA].

[17] Ministry of Social Affairs Veterans and Youth Rehabilitation Policy and Minimum Standards for the Protection of the Rights of Victims of Human Trafficking (2009) [hereinafter MOSAVY Handbook]. See infra notes 127-129 and accompanying text (noting the MOSAVY Handbook was implemented through Prakas No. 852 S.V.Y. on August 31, 2009 for the Policy and Prakas No. 857 S.V.Y. on September 3, 2009 for the Minimum Standards).

[18] MOSAVY Decision No. 13 SSR on the Establishment of the National Task Force (Mar. 12, 2006) [hereinafter 13 SSR]. The MOSAVY Handbook, supra note 17, at 1, indicates a similarly-named “Decision No. 35 SSR.” setting up this task force (July 20, 2007), but we were not able to obtain a copy. Presumably, it was the later version actually signed by the Prime Minister although this is difficult to verify.

[19] Cambodia National Council for Children, Decision No: 107 CNCC on Guideline for the Protection of the Rights of Trafficked Children of the Kingdom of Cambodia (Dec. 20, 2007) [hereinafter Children’s Guideline].

[20] MOSAVY Guidelines on Procedures for Handover and Reception of Trafficked Victims between the Kingdom of Cambodia and the Socialist Republic of Vietnam (Nov. 2010) [hereinafter Vietnam Handover Guideline].

[21] Child Convention, supra note 9, at 44.

[22] See Part I, supra note 2, at 88-94 (discussing the hierarchy of Cambodian laws).

[23] See Child Convention, supra note 9, at 47-48, 50-55.

[24] See id.

[25] Id.

[26] Id. at 47.

[27] Id. at 53-54.

[28] Id. at 54-55.

[29] Id. at 56.

[30] Id.

[31] Id.

[32] Optional Protocol, supra note 10, at 228.

[33] See id. at 247.

[34] Id.

[35] See id. at 247-49.

[36] See id. at 251.

[37] Id. at 252.

[38] Id.

[39] Supplemental Protocol, supra note 11, at 319.

[40] See id. at 343.

[41] See United Nations Treaty Collection, Databases, Ch. XVIII, 12.a., http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-

a&chapter=18&lang=en (last visited Dec. 20, 2012) (indicating Thailand signed it on December 18, 2001).

[42] See id. (noting accession was on June 8, 2012).

[43] See id.

[44] Supplemental Protocol, supra note 11, at 343.

[45] See id.

[46] Id.at 345 (emphasis added); see also Global Plan of Action, supra note 12, art. 33 (using similar language).

[47] Supplemental Protocol, supra note 11, at 345.

[48] Id. at 346.

[49] See id.

[50] Id.

[51] Id.

[52] Id.; see also Global Plan of Action, supra note 12, at art. 34 (using the same language).

[53] Supplemental Protocol, supra note 11, at 346.

[54] See infra, section II.B.7.

[55] Supplemental Protocol, supra note 11, at 346.

[56] Id.

[57] Id. at 345-46.

[58] See id.

[59] Global Plan of Action, supra note 12.

[60] Gregory J. Kerwin, The Role Of United Nations General Assembly Resolutions In Determining Principles Of International Law In United States Courts, 1983 Duke L.J. 876, 880-82 (1983).

[61] See, e.g., id. at 883.

[62] Id. at 892; see also Marko Divac Öberg, The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ, 16 Eur.J.I.L. 879, 881-887 (2006) (using an interesting perspective to note various legal effects, including substantive and causal ones).

[63] Kerwin, supra note 60, at 892.

[64] In fact, the Resolution urges Member States to sign on to the Supplemental Protocol (see supra section II.B.3 for a discussion) if not already having done so, referring to it as the “Trafficking Protocol.” Global Plan of Action, supra note 12, Annex Pt. II, ¶¶ 33-34.

[65] See id., at Annex Pt. II, ¶¶ 25-42.

[66] Id. at Annex Pt. II, ¶ 33.

[67] Id. at Annex Pt. II, ¶ 33; see also Supplemental Protocol, supra note 11, at 346.

[68] Global Plan of Action, supra note 12, Annex. Pt. II, ¶ 34.

[69] Id. at Annex Pt. II, ¶ 37.

[70] Id. at Annex Pt. II, ¶¶ 39-42.

[71] See Part I, supra note 2, at 88-94 (discussing the hierarchy of Cambodian laws).

[72] Thai MOU, supra note 13, art 23.

[73] See Part I, supra note 2, at 91-92 (discussing the definitions and distinctions between treaties and other agreements).

[74] See Thai MOU, supra note 13, arts. 13, 14.

[75] Id. at 1, 12.

[76] See id. arts. 7, 9.

[77] Id. art. 22.

[78]  Id. art. 20.

[79] See generally id.

[80] Id. arts. 7, 16; see also Vietnam Agreement, supra note 14, at 3-4.

[81] Thai MOU, supra note 13, at 5; see also Vietnam Agreement, supra note 14, art. 5.

[82] Immigration Law, supra note 10, arts. 36-37.

[83] Thai MOU, supra note 13, art. 7(c).

[84] Id. art. 8; see Vietnam Agreement, supra note 14, arts. 5, 6 for nearly identical provisions.

[85] Thai MOU, supra note 13, arts. 9, 15; see Vietnam Agreement, supra note 14, arts. 9, 13 for similar provisions.

[86] Thai MOU, supra note 13, art. 16 (stating “victims of trafficking shall not be deported.”) (emphasis added); see Vietnam Agreement, supra note 14, art. 11.

[87] Thai MOU, supra note 13, art. 17.

[88] Id., art. 18; see also Vietnam Agreement, supra note 14, art. 13.

[89] Thai MOU, supra note 13, arts. 11, 13, 14 (training of law enforcement and cooperation with MOI and others); see also Vietnam Agreement, supra note 14, arts. 7-9.

[90] Thai MOU, supra note 13, art. 16; see also Vietnam Agreement, supra note 14, art. 11.

[91] Article 12.2 of the Vietnam Agreement, for instance, indicates that the “Working Group” of each country has the responsibility to “arrange the repatriation for trafficked victims,” and to “carry out that repatriation of trafficked victims once arranged.” Vietnam Agreement, supra note 14, art. 12. The language seems to presuppose voluntariness and best interests are in fact being served in this approach.

[92] See Thai MOU, supra note 13, arts. 7(b), 7(d), 16, 17 (noting that “shelter and protection shall be provided to victims according to the policy of each state,” and shall be under MOSAVY’s care in Cambodia).

[93] MOSAVY Handbook, supra note 17, at 2.

[94] See Part I, supra note 2, at 88-94 (discussing the hierarchy of Cambodian laws and legal instruments).

[95] The Vietnam Agreement directs each State’s “Working Group” to handle repatriation, Vietnam Agreement, supra note 14, art. 12, and indicates the Implementing Institution for Cambodia is the Ministry of Woman’s Affairs (MoWA), id. art. 14. However, the subsequent Standard Operating Procedures (SOP) for this Agreement indicate MOSAVY is the required “focal authority” for the handling and repatriation of foreign sex-workers. Vietnam SOP, supra note 15, art. 2(a). The Working Group’s actions continue under MOSAVY, according to the SOP. Id. art. 5.

[96] Vietnam Agreement, supra note 14, art. 11 (emphasis added).

[97] Id. art. 5.4.

[98] See id. art. 13.1 (stating that “[t]he Parties shall make all possible efforts towards the safe and effective reintegration of trafficked victims . . . ”).

[99] Id. art. 5.2

[100] See generally Vietnam SOP, supra note 15 (introductory wording espouses a “victim-centered” approach).

[101] See Thai MOU, supra note 13, arts. 7(b), 16(b) (stating that shelter is provided according to each state’s “policy” and repatriation is to be in best interests); see also Vietnam Agreement, supra note 14, arts. 5.2, 11 (stating that shelter is provided according to each state’s “legal regulation” and repatriation is to be in best interests, according to each state’s “conditions and policies”).

[102] See infra section II.C for a discussion of Domestic Standards.

[103] See Vietnam SOP, supra note 15, arts. 1(b), 2(b) (mentioning a cooperative role between MOI and MOSAVY for victim identification and naming the Department of Social Welfare (Anti-Trafficking Reintegration Office (“ATRO”)), or Provincial/Municipal Departments under MOSAVY’s authority (“DoSAVY” or sometimes “DoSVY”) as the “focal authority”).

[104] See generally Memorandum of Understanding between the Gov’t of the Kingdom of Cambodia and the Gov’t of the Kingdom of Thailand on the Survey and Demarcation of Land Boundary, Cambodia-Thailand (2000) (indicating that a MOU may still be very significant in international relations, as indicated in the land-boundary dispute between Cambodia and Thailand).

[105] See infra section II.C.8.

[106] ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (Jan. 13, 2007), available at <http://www.asean.org/communities/asean-political-security-community/item/asean-declaration-on-the-protection-and-promotion-of-the-rights-of-migrant-workers-3> (last visited Aug. 21, 2013) [hereinafter ASEAN MOU]. The ASEAN MOU was signed by the Prime Ministers or Presidents of ten countries, including Cambodia, Vietnam, and Thailand. It mostly contains general aims to provide protection of migrant workers, including repatriation, and to prevent improper recruitment and trafficking in persons. See id. arts. 13, 14, 17.

[107] Memorandum of Understanding on Cooperation Against Trafficking in Persons in the Greater Mekong Sub-Region (Oct. 29, 2004), available at <http://www.no-trafficking.org/content/pdf/final_commit_mou.pdf> (last visited Aug. 21, 2013) [hereinafter GMS MOU]. The GMS MOU was signed by ministerial level officials of Cambodia, China, Thailand, Vietnam, Laos, Myanmar on October 29, 2004. It commits these governments to providing legal assistance and information to victims. Id. at ¶ II.10. The GMS MOU also specifically ensures victims shall not be held in detention centers and that they will receive shelter and appropriate physical, psycho-social, legal, educational, and health-care assistance while ensuring their safe return. Id. at ¶¶ III.16, 17, 20, 21.

[108] ICA, supra note 16, art. 61.

[109] See generally Human Trafficking: Cambodia, www.humantrafficking.org (last visited June 3, 2012).

[110] See Part I, supra note 2, at 88-94 (discussing the hierarchy of Cambodian laws and legal instruments). On one hand, an Inter-ministerial Agreement would seem less significant than an Inter-ministerial Proclamation (Prakas). On the other hand, it is quite conceivable the ICA is intended to have the same weight as a Prakas but must be named an Agreement because it involves a consensus beyond government actors, including private sector actors, such as NGOs and Victim Support Agencies (VSAs).

[111] ICA, supra note 16, arts. 2, 3.

[112] Id. arts 7-9.

[113] Id. art. 5.

[114] Id. art. 4 FCAs, as initial service providers, share a duty to inform victims on the range of services available to victims. See id. arts. 4, 5, 7, 9.

[115] Id. arts. 10, 18, 37. This legal purpose is clearly not the only reason victims are entitled to stay in the country. Rather, this safeguard serves to underscore a broad range of reasons for allowing rescued foreign victims to stay in Cambodia for extended times, as shown next.

[116] See id. arts. 6, 9, 29.

[117] Id. arts. 12, 62.

[118] See id. art. 12. This will be seen again in the MOSAVY Handbook standards below.

[119] See id. arts. 28-31, 22-40, 49, 54, 59.

[120] Id. art. 54.

[121] Id. arts. 40, 63, 64.

[122] Id. art. 63.

[123] Id. arts. 63-66.

[124] Id. arts. 62, 63, 66.

[125] See id. arts. 63, 66, 67.

[126] Id. arts. 66, 77, 78. Notably, follow up of released victims is required among shelters, MOSAVY, MOWA, and VSAs for at least half-a-year.

[127] MOSAVY Handbook, supra note 17, at 8-20 (dated Aug. 31, 2009).

[128] Id. at 6-7.

[129] Id. at 21-37.

[130] See Part I, supra note 2, at 93.

[131] See MOSAVY Handbook, at 12 (Assessment), 13 (Case Closure), 23-24 (comprehensive risk assessments on reintegration), 25 (victim’s right to information, in best interests of the child), 26 (case management process, recovery and follow up).

[132] The term “best interests” (or its singular form) is used in the MOSAVY Handbook and in the CNCC’s Guideline for Children (see below) in sections referring only to children. I did not see its use in the Handbook in regard to adults specifically, although I believe it is implied. It is also used with respect to women in the Thai MOU, for instance. See supra text accompanying note 60. Thus the Handbook’s use of the “best interests” standard appears somewhat more limited than its use in the International Agreements/MOUs. Compare ICA, supra note 16, art. 12 (“best interests of the minors”), and ICA, supra note 16, art. 62 (“best interests of the victim,” stated in the context of guardianship), with MOSAVY Handbook, supra note 17.

[133] MOSAVY Handbook, supra note 17, at 27. But see ICA, supra note 16, art. 66 (stating a minor victim shall not be compelled to stay in a shelter, if there is a responsible guardian to take the child). 

[134] MOSAVY Handbook, supra note 17, at 15 (rights to various services indicated), 22, 23, 25, 26 (long-term care, services, informed choice); ICA, supra note 16, at ch. 9 (“Services, Conditions, and Staff of Shelter”).

[135] See MOSAVY Handbook, supra note 17, at 23-36 (especially 6.6 “Right to Services”).

[136] Id. at 10.

[137] Id. at 13 (“Case Closure”).

[138] Id. at 10  (“In a long-term shelter”), 13 (Case Closure), 27 (safe integration of children).

[139] Id. at 15, 25, 31.

[140] See ICA, supra note 16, arts. 28 (victims entitled to health care, skills training, education), 33 (literacy and education), 39 (vocational training). A good example of the seriousness of these safety concerns over reintegration is evident from a joint project involving MOSAVY (ATRO) and IOM in 2004-2005, showing that of 137 known trafficked individuals (Cambodia to Thailand), sixty percent were not recommended for reintegration into their communities at the time of their rescue. MOSAVY & IOM, The Return and Reintegration of victims of Trafficking from Cambodia to Thailand 01 July 2004 – 30 March 2005 at 14, available at www.humantrafficking.org/…/final_report_31_may_2005.doc  [hereinafter Thailand Report].

[141] MOSAVY Handbook, supra note 17, at 10 (“In the community”).

[142] “Reintegration is the process of a victim’s return and resettlement into their family and community based on their personal decision.” Id. at 13 (bold in original).

[143] Id. at 18 (heading entitled: “Reintegration of Victims into Families, Communities, and Non-Governmental Organizations”).

[144] Id. at 32 (emphasis added); see also ICA, supra note 16, art. 65. (indicating a victim’s right to request staying in a shelter).

[145] MOSAVY Handbook, supra note 17, at 15, 18, 26, 32 (right to live with a new family or community).

[146] See ICA, supra note 16, art. 65.

[147] See MOSAVY Handbook, supra note 17, at 24-27 (indicating rights to information and appropriate decisional authority, among others).

[148] See id. at 30-33 (victim is given the rights of participation in case planning, cooperation, informed decision-making, and consultation, including as to closure).

[149] In Svay-Pak, for instance, families are notorious for selling their children into brothels. This is often out of sheer laziness or greed, not always survival, as some naively assume. See Nefarious: Merchant of Souls (Exodus Cry 2011).

[150] See ICA, supra note 16, at ch. 10 (“Authority of Shelters”), arts. 63-69 (especially 63, 66, 67), arts. 12, 66 (with respect to a minor’s decision making authority).

[151] See MOSAVY Handbook, supra note 17, at 23-24; ICA, supra note 16,  arts. 63, 66, 67. Notably, the MOSAVY Handbook gives shelters greater authority than the ICA to restrain a victim wishing to leave, including in the case of children; however, the ICA allows a shelter to use its authority as guardian to restrain a child victim if it believes the victim is likely to be re-trafficked.

[152] Of course, the “best interests” standard itself is vague. One can only hope that shelter workers and aftercare providers have enough common sense, good conscience, or a natural and basic sense of justice, accountability, advice, moral resolve, and courage to actually consider and do what is in a victim’s best interest, but I am sure that is not always the case.  In any event, “best interests” must certainly include doing whatever it takes to stop a victim’s sexual exploitation and to attempt to restore some dignity to his/her human personhood (that should be a minimum in any assessment). See MOSAVY Handbook, supra note 17, at 25 (every victim of human trafficking in Cambodia is entitled to the “Right to Dignity”).

[153] See id. at 29, 32-33 (“Referral,” “Case Closure”).

[154] Id. at 28 (decision making rights), 31 (informed decisions in recovery).

[155] Id. at 25 (all victims). Article 6.4 specifically prohibits any act of discrimination and/or stereotyping against the victim on the basis of sex, age, race, and ethnicity (among others).

[156] See id. at 18 (entitled “Sending Victims to their Country of Origin”) (emphasis added).

[157] A good starting point for alleviating any tensions in this would be to amend the Immigration Law, including allowing special visas for victims, as clearly urged by the international standards above. See Global Plan of Action, supra note 52 and accompanying text; Supplemental Protocol, supra note 56 and accompanying text. This is the subject of subsequent articles.

[158] See generally National Plan of Action, supra note 1.

[159] This date appears in MOSAVY Decision No. 35 SSR. See note 18 and accompanying text.

[160] See generally id. The new NC/S.T.S.L.S. also handles “smuggling” along with trafficking, showing a conjunctive link between all forms of illicit cross-border activity. Hopefully, this will enhance efficiency in combatting both.

[161] See ASEAN MOU, supra note 106 and accompanying text; GMS MOU, supra note 106 and accompanying text.

[162] Children’s Guideline, supra note 19, art. 6; see Part I, supra note 2, at 88-94 (discussing the hierarchy of Cambodian laws).

[163] Children’s Guideline, supra note 19.

[164] Supporting Message signed December 14, 2007. Hun Sen was also CNCC’s Honorable Chairman. Children’s Guideline, supra note 19.

[165] Id., art. 4 § 5.2.d.

[166] Id., art. 3 § 5.a.

[167] Id., arts. 3 § 4.a., 3 § 5.a., 4 § 5.2.d.

[168] Id., art. 4 § 5.2.d.

[169] Id., art. 4 § 2.1.a.

[170] Id., art. 4 § 4.3.

[171] Id., art. 6, § 5.3.b., c., d.

[172] See supra note 20. This was an initial draft of the Vietnam Handover Guideline. The latest version, dated Dec. 15, 2010, is available at: https://sites.google.com/site/iomvietnamhandovergdl/.

[173] One such chart, the “Steps Chart,” listed 18 steps to be followed and was used by this author in trying to decipher all the actual steps in this research. Attempts to juxtapose this within the broader steps in the Vietnam SOP (the official document governing repatriation), in the hope of coming up with a clear outline for Vietnamese repatriations, proved almost impossible. This is because the SOP simply left out so much detail that it is hard to follow, and the Steps Chart did not always clearly coordinate with the steps in the SOP. It would challenge any reader of the English language to divine a clear approach to Vietnamese repatriations from the SOP and other documents/charts available in early 2010. According to information from the human rights group, the Steps Chart came from a previous version of a MOSAVY guidebook, and it stayed in draft form; however, the Steps Chart showed the intended steps that should have been followed in all victim processings and repatriations, as of early 2010, if not sooner. See email information on file with the author (dated Apr. 27, 2010, and Sept. 2, 2013). The Vietnam Handover Guideline has evidently replaced the Steps Chart.

[174] See Part I, supra note 2, at 69-72. With the help of UNICEF in 2001, MOSAVY (then MOSALVY) issued a well-thought-out reintegration guide for victims and street children. See generally The MOSALVY Reintegration and Follow up Programme, A Handbook [hereinafter MOSALVY Handbook] (to be distinguished from the MOSAVY Handbook, supra note 17, which is used extensively in this set of articles). It is notable for its careful and extensive family assessment process, designed to see if reintegration of victims is even advisable. However, the MOSALVY Handbook is designed for reintegration of Cambodians into society and ignores the situations of Vietnamese and other foreign victims of sex-trafficking. Some improvements to the program came in 2007. This included MOSAVY Circular No. 009 MoSVY on Reintegration and Follow Up Activities for Victims who Stay in Government and Non-Government Organization Centres (Sept. 28, 2007); see also a “Quick Sheet” describing the Circular (on file with the author). Also in 2007, MOSAVY’s subordinate ATRO department instituted a barrage of new intake and assessment forms (on file with the author). While these additional initiatives are all laudable in their aim of making sure reintegration of at-risk individuals with their families and villages is wise, none seems to contemplate a specific process for assisting foreign victims of sex-trafficking. Even the subsequent MOSAVY Handbook inadequately covers steps specifically designed for assisting foreign victims, as I have argued.

[175] It did this in at least two steps: Step 2 (mentioning a Voluntary Return Agreement), and Step 6 (checking consent). Steps Chart, supra note 173.

[176] In researching this matter, we sought from MOSAVY an indication of any specific steps or standard operating procedures available in regard to repatriations back to Thailand. Apparently none exist, but someone in the government assured that “they know how to do it.” Email communication (Apr. 27, 2010) (on file with the author).

[177] Compare MOSALVY Handbook, supra note 174 with MOSAVY Handbook, supra note 17, at 24-33; see also ICA, supra note 16 (arts. 4-6 especially). The International Agreements and MOUs with Vietnam and Thailand indicated above in Section II also provide information.

[178] See MOSAVY Handbook, supra note 17, at 11-13 (giving the same list of steps).

[179] Id. at 28-33 (detailing the case management process).

[180] Id. at 11.

[181] Id. at 28.

[182] See supra section II.B.3.

[183] MOSAVY Handbook, supra note 17, at 11, 28.

[184] ICA, supra note 16, art. 4.

[185] Id.

[186] Id. arts. 4, 6.

[187] Id. art. 6.

[188] MOSAVY Handbook, supra note 17, at 28.

[189] Children’s Guideline, supra note 19, § 2.2(d).

[190] ICA, supra note 16, art. 4.

[191] Id. In some instances, the police may directly refer a victim to an NGO. MOSAVY & IOM, Repatriation from Cambodia to Vietnam of Vietnamese Victims of Trafficking from 15 May 1999 – 30 March 2005, at 22, available at www.humantrafficking.org/…/final_report_31_may_2005.doc [hereinafter Vietnam Report] (note: This Report is combined in the same document with the THAI Report, supra note 140. See Part I, supra note 2, at 72-73, n.13).

[192] MOSAVY Handbook, supra note 17, at 11.

[193] Id. at 11-12.

[194] Id. at 12.

[195] Id. at 29.

[196] Id. at 12.

[197] Id.

[198] Id. at 29.

[199] Id.

[200] Id. at 12.

[201] Id. at 30.

[202] Id.

[203] Id. at 12.

[204] Id. at 30.

[205] Id.

[206] Id. at 26 (Right to Justice); see ICA, supra note 16, arts. 4, 10 (cross-border situations), 18 (victims filing a complaint against perpetrators), 37 (right to “sue for compensatory damages”).

[207] ICA, supra note 16, arts. 4, 18, 19, 37, 38. Victims are also encouraged to cooperate with prosecutors in criminal cases against their traffickers/abusers.

[208] Id. arts. 4, 18; see also MOSAVY Handbook, supra note 17, at 25 (non-Khmer language victims). This informational duty extends also to police and prosecutors. ICA, supra note 16, arts. 4, 18.

[209] ICA, supra note 16, art. 10.

[210] Children’s Guideline, supra note 19, § 4.3 (b).

[211] MOSAVY Handbook, supra note 17, at 12.

[212] Id. at 30-31.

[213] Id. at 31.

[214] Id. at 12-13.

[215] Id. at 13.

[216] Id. at 31.

[217] Id.

[218] Id. at 13.

[219] Id. at 32.

[220] Id. at 32. Assessing this and making adjustments along the way would seem extremely challenging in the case of an international reintegration and is not likely something MOSAVY (and Cambodia’s government) is going to be checking into.

[221] Id. at 18 (objectives).

[222] Id. at 13.

[223] Id. at 32. In terms of how this would happen in an international reintegration, the MOSAVY Policy and Minimum Standards again remain silent.

[224] Id. at 13.

[225] Id. at 32-33 (emphasis added).

[226] See id. at 28-33. We do not have a great deal of information about the time that this process normally takes.  The 1999 – 2005 Vietnam Report states that the most common length of time between interviews with ATRO staff and Vietnamese officials was between one and four months but adds that one person waited ten months and another waited two years. Vietnam Report, supra note 191, at 27.

[227] The headings of the first nine steps indicated below are quoted as they appear in the actual Vietnam Handover Guideline and are in the same sequence therein.

[228] This is probably in Phnom Penh. See Vietnam Report, supra note 191, at 20-21.

[229] See Vietnam SOP, supra note 15, art. 3(a) (insisting individuals are to receive various services while “awaiting the results of the verification and identification process”).

[230] Vietnam Handover Guideline, supra note 20, at 7-8; see also Vietnam Report, supra note 191, at 21 (“Vietnamese trafficking victims are offered the opportunity to voluntarily return to Vietnam.”) (emphasis added).

[231] Vietnam SOP, supra note 15, art. 1(b).

[232] ICA, supra note 16, art. 4; see also Vietnam Report, supra note 191, at 21 (“Women and children are provided with information related to their options and are free to make a choice about their future.”).

[233] The Vietnam SOP’s failure to indicate any step in this direction again highlights my contention all along that MOSAVY had virtually nothing in place to handle victims who did not wish to be repatriated, and this contributed to their summary (automatic) repatriation.

[234] Supplemental Protocol, supra note 11, at 345.

[235] Children’s Guideline, supra note 19, art. 4.3 (b).

[236] ICA, supra note 16, art. 10.

[237] See supra section III.A.

[238] All annexes and appendices referred to in the Vietnam Handover Guideline are available online at: https://sites.google.com/site/iomvietnamhandovergdl/. See supra, note 172. The annexed forms are in Khmer, Vietnamese, and English and are very helpful in understanding and are central to, the repatriation sequence.

[239] Vietnam Handover Guideline, supra note 20, at 8; see also Vietnam SOP, supra note 15, arts. 3(b), (d), (e) (describing similar paperwork somewhat less precisely, including content of the victim’s file).

[240] Vietnam Handover Guideline, supra note 20, at 8; see also Vietnam SOP, supra note 15, art. 3(e) (use of diplomatic, consular channels). Informed consent and confidentiality are to be respected; see also Steps Chart, supra note 173, at Step 4 (indicating similar references to embassy involvement).

[241] Case data forms are thus preferably included with as much information as possible. See Steps Chart, supra note 173, at Step 5.

[242] Vietnam Handover Guideline, supra note 20, at 8-9; see also Vietnam SOP, supra note 15, art. 3(c) (indicating Vietnam, as the Requested Party in this context, has 30 working days in which to verify identification or accept the victim anyway).

[243] Vietnam SOP, supra note 15, art. 3(c).

[244] Id.

[245] The SOP, in contrast, offers no real guidance on this issue. It simply urges the countries to work cooperatively on victim identification and family tracing given the short time and high stakes involved. See id. (calling for cooperation among the respective “focal . . . [and] related authorities to identify and verify the victim’s nationality and conduct family tracing”).

[246] I can only assume if the information is not sufficient, the process will continue indefinitely until identification and family tracing are satisfactorily concluded, so long as the victim continues to indicate s/he wants to go home. Whether this would involve successive thirty-day cycles or some indefinite time frame is unclear. Alternatively, the SOP seems to indicate Vietnam could at any time agree to receive the victim, whether or not the victim has been successfully identified. See Vietnam SOP, supra note 15, art. 3(c). It is not clear why Vietnam would do that, and perhaps the allowance for an ongoing tracing process in the Vietnam Handover Guideline is intended to alter or clarify the SOP, offering a less constricting time frame than thirty days for Vietnam to give its final decision on accepting the victim.

[247] Vietnam Handover Guideline, supra note 20, at 9. In Step 6, if family tracing is successful and before issuing a Laissez-Passer, the victim’s consent to repatriation is again verified. Steps Chart, supra note 173, at Step 6. If the victim still consents, she continues toward repatriation; if not, it seems steps similar to those in 1.a., above will have to be implemented to allow her to stay in Cambodia.

[248] Vietnam SOP, supra note 15, art. 4(b).

[249] Id. arts. 4(a), (d).

[250] Id. art. 4(a) (indicating the handover plan “includes a list of victims to be returned”).

[251] Vietnam Handover Guideline, supra note 20, at 9.

[252] See also Vietnam SOP, supra note 15, art 4(b) (immigration authorities of the handover party issue it).

[253] Vietnam Handover Guideline, supra note 20, at 9-10. The Vietnam SOP indicates additional documentation, such as: “Handover minutes of the victim’s handover and reception,” and “Health record[s].” Vietnam SOP, supra note 15, art. 4 (“Documents exchanged . . .”). Step 13 of the Steps Chart includes documentation pertaining to “vehicle details.” See Steps Chart, supra note 173, at Step 13.  An “arrival notification” should have also been included in this list. See Vietnam Handover Guideline, supra note 20, at 10 (indicating in Step 8, a “border arrival notification” is also included).

[254] Steps Chart, supra note 173, at Steps 8, 15.

[255] The Vietnam SOP encourages such active cooperation with IOs and NGOs to help the repatriation process run smoothly. Vietnam SOP, supra note 15, art. 4(d). Interestingly however, the Vietnam Handover Guideline contains a footnote (note 3) claiming since 2001, IOM has only acted as a fundraiser and coordinating body exchanging information between Vietnam and Cambodia (thus denying its active assistance in repatriation processes). Vietnam Handover Guideline, supra note 20, at 9. This attempted disclaimer of IOM’s active assistance is at odds with information in the Steps Chart, indicating a greater active role for IOM and is strange as to any apparent purpose in so saying.

[256] Vietnam Handover Guideline, supra note 20, at 10. Both documents were indicated earlier in reference to Step 7. See supra note 249 and accompanying text.

[257] This may culminate in the so-called “handover minutes” of the victim’s reception, referred to in the Vietnam SOP. See Vietnam SOP, supra note 15, art. 4(d) (Step 3, yet lacking any clear description of these handover minutes). However, the Vietnam Handover Guideline, including its Annexes, does not mention or include these minutes, and it appears they are no longer used.

[258] Vietnam Handover Guideline, supra note 20, at 10; see also Vietnam SOP, supra note 15, art. 4(d) (indicating three Steps).

[259] See supra section III.A.

[260] The Vietnam Handover Guideline names these entities. Vietnam Handover Guidelines, supra note 20, at 3; see also Steps Chart, supra note 173, at Step 17 (specifying same entities to provide support services). The Vietnam Handover Guideline also names some additional state offices on the Vietnamese side involved with repatriation: the Ministry of Public Security (MPS), and the Ministry of Labor, Invalids and Social Affairs (MOLISA). In addition, it indicates IOM Missions in Cambodia and Vietnam are involved. The Vietnam SOP only states generally that the Vietnam focal authority shall collaborate with “relevant agencies” in Vietnam for providing victim support, without details. Vietnam SOP, supra note 15, art.4(c).

[261] MOSAVY Handbook, supra note 17, at 13.

[262] See supra sections III.A (Steps 1 and 2), III.B; see supra note 246 and accompanying text.

Concerning Summary Repatriations of Sex-Trafficking Victims Out of Cambodia

(Part I of II)

 Patrick M. Talbot*

                 

I. Introduction

II. Introduction to the Administrative System Impacting the Handling of Rescued Victims

A. Basics of Cambodia’s Government Structure

B. The Administrative System Charged with Handling Victims

1. Cambodia’s Lack of A Clear Administrative System

2. Suggested Principles of Interpretation for an Administrative System to Handle Rescued Victims

C. Application of Interpreted Hierarchical Principles to MOI, MOSAVY, and Other Government Institutions

1. Primary Ministries Involved, MOSAVY and MOI

a. Authority and Role of MOI in Repatriation

b. Authority and Role of MOSAVY in Repatriation

c. Resolution of the Administrative Conflict

2. Secondary Institutions

a. Authority and Role of MOWA and the COMMIT Task Force in Repatriation

b. Contributions of the National Task Force (Now NC/S.T.S.L.S.)

c. Contributions of CNCC in Repatriation

D. Summary of Administrative Issues

III. Introduction to the Legal System and Other Norms in Cambodia Applicable to Rescued Victims

A. A Hierarchy of Laws and Legal Principles in Cambodia

B. Elaborating on Some of the Above Terms

1. Treaties/Convention

2. International Agreements/MOU’s

3. Law (“Kram”)

4. Decision (“Sekdei Samrach”)

5. Proclamations (“Prakas”)

6. Circulars

C. Value of This Information in Assisting Rescued Victims

IV. Conclusion

 

I. Introduction

In 2010 and the years following, I had the privilege of assisting a human rights and justice group with one of the stickiest issues in Cambodia involving sex-trafficking.  Specifically, this concerned the rights and proper handling of rescued foreign victims[1] of sex-trafficking, including their needs and opportunities for aftercare.  The project involved research and coordination among several students and colleagues to assist the human rights group with this endeavor.

This article is the first in a two-part series, reflecting what we learned in that effort.  I hope both articles (Spring and Fall) will contribute some valuable analysis on the issues surrounding victim aftercare.  The analysis is intended to not only be useful in the Cambodian context, but also in a broader context, as the issues observed here are likely experienced globally in several international efforts to stop sexual slavery.  I suspect the issues explored herein are all too common around the world.

In Cambodia, victims of sex-trafficking are commonplace, and thankfully, many are rescued.  However, over the last several years, and almost as a routine, many rescued foreign victims were being summarily repatriated to their countries of origin.  In its broadest sense, repatriation means “the personal right of a refugee or a prisoner of war [or in some cases, another non-national] to return to his/her country of nationality under specific conditions laid down in various international instruments.”[2]  In Cambodia, however, victims of sex-trafficking have in many cases been repatriated without giving any serious consideration to victims’ long-term aftercare needs, and without first deciding if repatriation was actually in the victims’ best interests.[3]  Victims were basically being improperly deported after rescue.[4]  I use the term “summary repatriation” (or its derivatives) in this set of articles to express this situation.

In many cases, the idea of repatriation is at odds with the expressed desires of victims who wish to remain in Cambodia and receive an education and job skills through the help of various NGOs.  In our experience, some victims were already in that process when they were summarily repatriated.  Victims may have no “home” to go back to, and wished to remain in Cambodia to start a new life.  Several victims had already started that new life, but were required to leave the country via these summary, compelled repatriations; some ran away to avoid this.[5]

The assistance we provided involved girls or women trafficked mainly from Vietnam and perhaps a few other countries, such as Thailand.  Accordingly, this set of articles addresses victims coming mainly from those countries.[6]  As indicated, however, the issue of improper, summary repatriations of rescued sex-trafficking victims is likely global in nature.

In Cambodia, most of these summary repatriations had been done through police acting on orders of the Ministry of the Interior (“MOI”), often only after a very short period following a victim’s rescue. Interestingly, this was likely contrary to the rehabilitative steps suggested by Cambodia’s Ministry of Social Affairs, Veterans and Youth Rehabilitation (“MOSAVY”).[7]   In effect two of the most important Cambodian government ministries on the issue of repatriation seemed to be working almost completely out of sync with each other in their approaches to rescued victims, and without a systematic approach.[8]  In some important respects, this initial article will examine the interplay between these separate Cambodian ministries, which necessarily also includes a short summary of the relevant regulatory and legal framework existing in Cambodia.

The general thrust of our research assistance revealed at least three key lessons, and these are somewhat related.  First, administratively, MOSAVY is the central source of policy in this area and should be taking the lead on victim aftercare.  It should be prescribing the appropriate policies and courses of action for victims.  MOI and others should be following MOSAVY’s lead, and cooperate in executing its policies. It seemed this was not happening, and the ensuing administrative confusion contributed to summary repatriations.

Second, MOSAVY’s standards and policies indicate a “best interests” standard shall be applied in assessing and handling the needs of rescued foreign victims.[9]  This standard requires assessing each victim’s situation on a separate, case-by-case basis, including a determination of whether repatriation and reintegration into a victim’s original family or community is advisable. Summary repatriations ignore that standard because they ignore a review of each individual’s situation.  In addition, Cambodia seems to have habitually viewed repatriation as the action that should always serve the best interests of foreign victims.  Such an assumption only eases the shift to summary repatriations, and has led to improper treatment of foreign victims (in comparison to domestic victims, who at least in theory are given an actual assessment).  If the best interests standard is applied correctly, it should be seen in many instances, that allowing victims to remain in Cambodia is actually in their best interests.

Third, the written policies, standards and guidelines in MOSAVY’s official Handbook fail to articulate any specific steps addressing the unique situation of handling foreign victims (other than steps supporting their repatriation).  It is this author’s conviction that the lack of written specific steps for an alternative scenario (i.e., one instead of repatriation) contributed significantly to the increase in summary repatriations. If repatriation is all the State can conjure, this is likely all there will be.

After our research, the human rights group we assisted used our information and incorporated it into several meetings with MOSAVY in efforts to bring its attention to some of these concerns.  This effort also included instruction and training for MOSAVY personnel on important international legal protocols it was already bound to follow.  I am happy to say the result of this process has been an improvement in MOSAVY’s handling of rescued victims. At least as of this writing, greater cooperation is happening with MOI (and the IOM) in handling rescued victims. The human rights group we assisted reports it is unaware of any significant numbers of current summary repatriations.[10]  MOSAVY has also increased its pro-activity in coordinating with others and in trying to meet its own best interests standard.[11]

This set of articles elaborates on the three key points indicated above in different stages. Specifically, I start in this initial article with some background coverage on Cambodia’s administrative and legal systems. I consider separately Cambodia’s administrative and legal hierarchies, which should somehow converge into an intended apparatus for handling rescued victims. I conclude that MOSAVY ought to have primary jurisdiction on this issue, and its regulatory scheme should govern the overall approach to handling rescued victims.  However, MOSAVY still needs to increase cooperation with other entities involved.

In the second article, I analyze several specific international and domestic standards helpful in protecting victims from summary repatriation. In addition, I discuss the general steps in victim assessment and handling that should have been followed after rescue, according to MOSAVY’s own administrative set-up and instructions.[12]

II. Introduction to the Administrative System Impacting the Handling of Rescued Victims

In this section, I will consider generally Cambodia’s system of government and administration as it affects victims.  In short, there are a lot of vagaries in the administrative system, and this situation has likely led to a significant deprivation of justice for several foreign rescued victims.[13]  In addition to MOI and MOSAVY, a host of other government and non-government institutions may be involved.  This can be a rather confusing situation, and it highlights the need for better systematic coordination among the various institutions involved. The National Plan of Action was a striking effort in that improvement.

It is imperative that Cambodia continue to move toward greater systematic cooperation among the various government (and non-government) entities involved in handling rescued victims in order to achieve a more efficient and just system.  I hope to offer some suggestions on this in accordance with the seemingly intended administrative structure under Cambodian law.[14]  Initially, however, it might be helpful to consider a general overview of Cambodia’s system of government

A.      Basics of Cambodia’s Government Structure

Cambodia is a Constitutional Monarchy, and has been since 1993.[15]  This structure followed the devastation of the communist-led Khmer Rouge (Pol Pot Regime), in 1975, and intervention efforts by the U.N. thereafter (1991-1993, “U.N. Transitional Authority in Cambodia,” or “UNTAC”).[16]  Cambodia’s king is Norodom Sihamoni,[17] but he is not especially active in day to day affairs of the country; however, he does sign Laws (Royal Kram), and Decrees (Royal Kret) appointing, transferring or ending the mission of high civil and military officials, ambassadors, envoys, and judges.[18]  He also signs international treaties.[19]

The State has three branches of government: an executive branch, a bicameral legislative branch (consisting of a 123-member National Assembly and a 60-member Senate), and an aspiring independent judiciary.

The executive branch (the “Royal Government”) is led by a Prime Minister (Hun Sen), assisted by Deputy-Prime Ministers, Senior Ministers, Ministers, Secretaries of State (Vice-Ministers), and Under-Secretaries of State.[20]  It consists of both civil administration and armed forces.  The executive branch is responsible for the overall execution of national policies and programs.[21]  Its agenda is directed and controlled by the highest administrative unit, The Office of the Council of Ministers, led by a Deputy Prime Minister.  The Royal Government is accountable to the National Assembly for its policies and conduct.[22]  The Royal Government may initiate legislation, and can also pass certain quasi-legislative decrees.[23]

There are approximately twenty-seven ministries or similar entities in the Royal Government.[24]  These entities include ministries over tourism, economics and finance, labour and vocational training, and the environment, to name a few.[25]  Most of the governmental authority affecting summary repatriation stems from activity within the executive branch, and of the twenty-seven ministries, the ones most directly involved with trafficking and repatriation issues are MOSAVY and MOI.[26]  Yet several others have been or continue to be involved at some level with this issue, including the Ministry of Women’s Affairs (MOWA), the Ministry of Justice (MOJ), and others.[27]  However, their efforts are usually not well coordinated, as discussed below.

The legislative branch consists of a National Assembly and the Senate. After a law proposed by the Prime Minister or the Senate is adopted in the National Assembly, it is reviewed and adopted by the Senate; after a second approval in the National Assembly, it enters into law upon signature of the King.[28]  The legislative branch has the right to pass laws relating to “the national budget, [ ] State Planning . . . amnesty . . . treaties or international conventions . . . .”[29]  The legislative branch is thus involved in both the law and treaty making processes.  In the case of a treaty, the executive branch usually drafts a law for a treaty’s ratification, which is then approved by the National Assembly, the Senate, and the King prior to entering into force (some instruments are considered self-executing, such as the Universal Declaration of Human Rights, as adopted in the Constitution).[30]

The judicial branch is established as an independent branch of government, theoretically not to be interfered with by the executive or the legislative branches.[31]  The judicial branch has the power to adjudicate broad legal matters including administrative cases.  It consists of lower courts, appellate courts, a Supreme Court, a Military Court, and the Extraordinary Chambers in the Courts of Cambodia (the “ECCC”), a hybrid court dealing with atrocities from high ranking persons in the Khmer Rouge.[32]  Cambodia’s Judiciary has four components: (1) the Constitutional Council, (2) the Supreme Council of Magistracy (supporting in administrative issues), (3) the courts, and (4) the prosecutors.[33]  Courts in Cambodia are courts of general jurisdiction which means they should have jurisdiction over trafficking cases.[34]

B. The Administrative System Charged with Handling Victims

Here, I look at the some of the confusion in Cambodia’s administrative system, including on this repatriation issue. Then, I offer some interpretive principles aimed at establishing an administrative hierarchy to counter that confusion.

 1. Cambodia’s Lack of a Clear Administrative System

As mentioned, the ministries that seem most involved in the question of handling trafficking victims, at this point, are MOSAVY and MOI.[35]  Yet it seems their history in this area has been marked by confusion, overlapping efforts, or simply inconsistent approaches. In addition, several other agencies, groups, and committees, including government and non-government, domestic and international institutions are all involved in aftercare issues. In situations involving government institutions, some may be operating strictly under a particular ministry, like MOSAVY, or can be operating across government institutions, or at a mix of entirely different hierarchical levels in the government.[36]  Inefficiency in this administration in the past has yielded a strange composition of standards and approaches to assist victims, resulting in inconsistencies and injustices.  Historically, efforts at establishing greater coordination and communication have not had much success.[37]  While improvements have been evident since 2010, especially in conjunction with the 2011-2013 National Plan of Action, still greater improvements and their actual implementation are necessary. Summary repatriation is simply easier and cheaper in terms of its administration and economics, but is not justice.

One of the primary reasons for Cambodia’s administrative confusion is simply its historical and political context. Starting a new country and trying to recover from the devastation of the Pol Pot genocide is an enormously daunting task. It is one not made easier by the continued presence of former Khmer Rouge officials in government.[38] This is compounded further by the enormity of youth and inexperience trying to lead the country (about 50% of Cambodians are under twenty years of age).[39]

Another cause of confusion, I hesitate to say, may be the large volume of advice coming from so many well-intentioned NGOs and IOs, all at once, and perhaps including competing suggestions. I believe the work of the best of these groups is absolutely essential to Cambodia’s development, yet the need for coordination and consensus cannot be overstated.

I suggest an approach and starting point would be to look at the intended administrative set-up for handling victims of sexual exploitation, and work from there.[40] I believe it is essential to start with a correct interpretation of the roles of MOI and MOSAVY, as the chief players, in the area of dealing with rescued victims. This should provide a clearer sense of an intended administrative hierarchy and assist in resolving confusion in handling victims.

As indicated above, MOI’s coercive power (it runs the police) seems to habitually trump any administrative due process steps MOSAVY had once suggested in satisfaction of its “best interests” standard.  Several things may account for this, including economics.[41]  For instance, perhaps MOSAVY had simply succumbed to MOI’s greater political stature or force, in the midst of its own struggles with other priorities and budgetary concerns.  MOSAVY could have been too embroiled with other concerns to pay much attention to what was happening, leaving MOI free to do what it wanted. Or, perhaps there was lack of communication between the two organizations.  It is possible that MOSAVY had been complicit in summary repatriations, or just did as it was told.[42]  Certainly, MOSAVY’s lapse in drafting any specific steps for handling foreign rescued victims, in the face of an international and domestic presumption in favor of repatriation, would be a considerable factor. It could have been some combination of all these.

In any case, Cambodian colleagues and researchers I worked with suggested a chief contribution to this administrative confusion in roles is Cambodia’s lack of a clear administrative code.[43]  Such a code for instance, might specify the roles, jurisdiction, and authority among competing government institutions or ministries, and would govern citizens’ access and rights in the administrative process.[44]  Some might suggest this lack of an administrative code may simply be the result of a fairly new government going through its growing pains, and trying to sort itself out.  That, of course, is a kinder, softer view.

Others, more cynically, see this situation as something intentional. They suggest this lack of a formal code enables the government to structure things too flexibly, or as politically expedient, according to the interests of the highest echelons in the administration.  Cambodia, for instance, follows something akin to French principles in administration, often resembling a kind of customary administrative system, except, as some claim, without any truly viable system.[45]  Assuming some truth in this charge, that situation would of course significantly contribute to the haze surrounding a clear system for dealing with rescued victims.  In other words, simple politics may govern in some administrative areas, depending on the issues at stake.

Some individuals I have worked with in Cambodia explain further, indicating the present “system” is designed specifically to allow the Prime Minister to fashion priorities on the most flexible, discretionary basis within his office, epitomizing a highly political and top-down approach.[46]  As an example, the Prime Minister may issue something called a “Recommendation” (Anuk Sas); some view this in practice as having greater weight than a Law (Kram), although in principle that should not be the case.[47]

None of this should be taken to mean that Cambodia is completely lacking in an administrative process.  To the contrary, during the nascent period of the new government, Cambodia promulgated a Kram precisely for that purpose.[48]  In addition, some inter-ministerial agreements or proclamations have emerged in certain areas, purportedly specifying ministerial roles.[49]  In actuality, these have tended to be general accords, identifying an issue needing important attention (rather than a clear roadmap on roles), and their efficacy is questionable beyond any stated aspirations.[50]  The National Plan of Action hopefully provides a recent counterpunch to this historical weakness.  In the final analysis, some efforts at administrative coordination do exist, but are seen by some colleagues as only something on paper.

The overall “system” in the country appears to be a mix of overlapping or competing practices and procedures among ministries; i.e., administrative process lacks clarity and consistency. This characterization of administrative confusion suitably describes the situation surrounding summary repatriations up through much of 2010 and somewhat still.

2. Suggested Principles of Interpretation for an Administrative System to Handle Rescued Victims

Cambodian laws, however, do offer some clues, along with some principles and customs, to glean basic administrative structures for handling social problems like trafficking.

A starting point in attempting to decipher an intentional administrative ranking between ministries and their actions may be found in a ministry’s founding Kram.  A Kram in this context refers to the law establishing a specific ministry.  Such Kram sometimes contain general administrative principles, including indications of a ministry’s power, function and authority.  Surprisingly, this may not be as specific as one might expect, as evidenced by the Kram establishing MOSAVY.[51]

In other instances, a specific item of legislation on a particular matter (still a Kram), may give additional information on the roles and authority of a government entity.  An example of this would be the Immigration Law’s indications for the Ministry of the Interior.[52]

Alongside Kram, various regulatory decrees of the government, such as a Royal Decree or a Sub-decree, may outline other specific administrative capacities of a ministry or government entity in a given situation; or, they may allude to relationships among entities.[53]  MOSAVY’s own Sub-decree, for instance, does both.[54]

In addition, Conventions, International Agreements, or MOUs may specify roles of a ministry in a particular context. This again is the case involving MOSAVY, with International Agreements between Cambodia, and its neighbors Thailand and Vietnam.[55]

The functional-jurisdictional information gleaned from such legal sources in Cambodia may shed some light on an intended hierarchy of authority and responsibility among government institutions for handling rescued victims. In this next section I will examine some of the key institutional players involved in the aftercare process, applying the above sources of information, to give a sense of what their respective authority and roles should be.

C. Application of Interpreted Hierarchical Principles to MOI, MOSAVY,and Other Government Institutions[56]

On paper, MOSAVY and MOI are expected to work in a cooperative approach, with MOSAVY shaping the policy and process involved in handling the victims, and also performing several key functions.  On the other hand, MOI should be play an auxiliary role in actual repatriations, if repatriation is appropriate.  In the past, however, MOI seemed to execute summary repatriations fairly routinely, without interference from MOSAVY. The Vietnam Standard Operating Procedures (SOP) impliedly prescribe repatriation (and MOI’s role in it). The lack of any specific contrary steps issued by MOSAVY, on behalf of foreigners, has likely contributed to the lack of a cooperative approach.  A look at intended roles of each ministry is gathered below.

1.   Primary Ministries Involved, MOSAVY and MOI

I cover these comparatively. I also suggest how things ought to work in the area of victim handling, under MOSAVY’s lead.

a. Authority and Role of MOI in Repatriation

In terms of its legal authority, MOI is responsible for implementing the Immigration Law in Cambodia, and running the police and border patrol. MOI’s role is “to guide and control all levels of provincial administrative authorities, supervise the national police, protect social order and security, and provide safety to the people of Cambodia.”[57]  In combating trafficking, MOI theoretically plays an important role in leading all other government institutions in making villages less vulnerable to trafficking, under a Safe Village/Commune Policy.[58]  MOI established the Department of Anti-Human Trafficking and Juvenile Protection, in 2002 (there had been a similar Office in 1996).[59]  The actual accomplishments of this Department are not very clear at this time.

MOI’s actual scope of authority and its intended role in the repatriation process is also not very clear.  However, the National Plan of Action and the Vietnam SOP suggest some roles of the MOI on this specific issue.  MOI is supposed to assist in the development of new victim identification criteria (including a handbook for that purpose),[60] the improvement of repatriation mechanisms and guidelines with MOSAVY and MOFAIC, and the improvement of shelters with MOSAVY.[61]  In addition, MOI must assist in case management and prosecution of perpetrators, improving victim interviewing processes, protecting victims, strengthening victim rescue operations, maintaining a victim hotline; MOI is also charged with coordinating with overseas law enforcement, improving laws, and developing victim data collection systems.[62]

In actual repatriations, MOI is expected to cooperate with MOSAVY, and should involve itself with actual repatriation only after MOSAVY and the receiving government have concluded that repatriation is appropriate.[63]  Specifically in repatriations to Vietnam, MOI receives various exchange and handover documents, such as a laissez passer, arrival notifications, and escort lists; it also assists in obtaining free exit visas, accompanies the victims to the border, and hands them over to the appropriate authorities, signing the handover documents.[64]

In general MOI is expected to work in cooperation with MOSAVY, and should allow MOSAVY to make determinations as to the appropriateness of repatriation, while it assists more with the mechanical details of the process, although it certainly also has a role in victim identification. [65]  Historically, such cooperation has not been very apparent. Instead, in the past, authorities such as the police have routinely rounded up rescued victims and given them a choice of going either to the consulate for deportation, or going through a shelter’s repatriation process, all without apparent consideration of the interests of the individuals.[66]  Little, if any, justification seems to exist for this approach under any laws or regulations in Cambodia. [67]  It seems as if MOI’s approach was once victims were identified and rescued, they were to be automatically sent across the border.

 b. Authority and Role of MOSAVY in Repatriation[68]

The Kram establishing MOSAVY is not very helpful in defining MOSAVY’s jurisdictional authority.[69]  However, article 3(A)(1) of the Sub-decree on Organization and Functioning of MOSAVY states, “MOSAVY has functions and obligations to organize policies and lead all social services of the State in order to help all kinds of vulnerable persons and the poor, such as elders without supports [sic], handicaps, homeless people, orphans, homeless children . . .”[70]  In general, MOSAVY is the institution charged with overseeing all social affairs of the State, including preventing prostitution, human trafficking, child molestation, assisting trafficked children, and enforcing children’s rights.[71]

The International Agreements Cambodia has entered into with Vietnam and Thailand also indicate MOSAVY is the “focal authority” for information and handling victims as to their post-rescue care.[72]

In the broadest terms here, the National Plan of Action indicates several activities of MOSAVY relating directly or indirectly to repatriation.  These activities include, but are not limited to, identifying victims, disseminating and implementing a Handbook, publishing and disseminating SOPs for repatriation with Vietnam and Thailand, improving shelter standards and victim care models, family tracing, updating its statistical (ATRO) databases, monitoring victim reintegration, and improving victim access to counseling, health care, legal services, education, and vocational training.[73]

A critical task of MOSAVY in the National Plan of Action is to cooperate with other countries “to reduce the number of deported victims.”[74]  This is precisely the thesis of this article, and the failure to follow this task has been the crux of the problem with MOI, despite being tasked in the same National Plan of Action Strategy to do so.[75]  Additionally, MOSAVY is responsible for working with other ministries, such as MOI, as it seeks to lead in the area of victim aftercare. 

Accordingly, it seems MOSAVY is the primary institution charged with coordinating the aftercare of rescued victims, including initial determinations of the suitability of repatriation, and it is authorized to obtain cooperative assistance from MOI and other ministries.[76]  If so, the administrative intent would seem to be that MOSAVY’s Proclamations (Prakas) should govern, absent any contrary, competing proclamations from MOI or any other ministry, and absent any contrary higher law (Decree, Kram, etc.).[77]  Specifically, article 29 of the Kram on the Organization and Functioning of the Council of Ministers addresses this issue.[78]  In theory, article 29 restricts MOI or any other ministry from issuing Prakas and Circulars (guidelines) in contravention of MOSAVY, in any area within MOSAVY’s designated authority.[79]

Searching MOI’s website and several other sources reveals no laws, including Prakas, regulations, or Circulars contrary to MOSAVY’s. Accordingly, it seems MOSAVY is best situated in a role-jurisdictional sense to set the policy in this area, including determinations as to whether repatriation should be pursued.  Still, ambiguity remains.

c. Resolution of the Administrative Conflict

The apparent ambiguity, and even conflict, in approaches between MOSAVY and MOI is a complicated inter-ministerial situation, which is not easily solved.[80]  Upon information and based on review of some of the documents, an inter-ministerial dispute such as this is typically only resolved by intervention of the Prime Minister.[81]

However, in some cases, the role of IOs (such as IOM, UNODC, UNIAP), and various influential NGOs (i.e., the human rights group), can have a significant impact by bringing clarity, communication, training, and accountability to institutions of government.  In some sense, that appears to be happening more and more in this situation involving the handling of rescued victims. Lately, MOI seems more interested in following MOSAVY’s designated administrative process, and some key IOs and NGOs were instrumental in shaping that change.

In the final analysis, each ministry of the government has a specific operational sphere. Yet much of what is carried out in practice in Cambodia is based on unwritten practice and custom, regardless of what legal rules and policies may say.  MOSAVY has issued a Handbook, stating its Policies and Minimum Standards that should govern the handling and repatriation process of victims.  The Handbook affords foreign victims the same protections available to Cambodian victims, but at the same time lacks specific steps in managing foreign victims.  MOI certainly was not about to volunteer a series of steps for implementing such protections, and this likely contributed to the lack of care in handling rescued foreign victims.

In one sense, if MOSAVY was concerned with the actions of MOI, it would have sought relief from the Prime Minister. However, there is no evidence that MOSAVY has sought the help of the Prime Minister.  If there was a serious conflict between MOSAVY and MOI, it could have been settled in this manner.  Nevertheless, accountability wrought by the human rights group, along with other NGOs and IOs (such as the IOM and UNODC), seems to have alleviated some of the administrative shortfalls, thereby improving the situation for rescued foreign victims.

2. Secondary Institutions

Secondary institutions in this context are those that have historically been directly involved with working on aftercare or repatriation.[82]  Although their importance (or even identity) has changed, their significance stems from their role in laying initial foundations for the government’s efforts against trafficking, and setting the stage for its current work.  A brief comment about these is beneficial for that reason.  I also include information on some of the relatively newer institutions involved in repatriation.

a. Authority and Role of MOWA and the COMMIT Task Force in Repatriation

While MOWA had been involved initially in signing an MOU with Thailand on human trafficking, its role now seems much less significant.  MOWA was the lead ministry in establishing and overseeing the National Task Force (NTF) in the implementation of agreements such as the Cambodia-Vietnamese Agreement and SOP, the Cambodia-Thailand MOU, and regional MOUs.[83]  In addition, MOWA’s Secretary of State apparently led the NTF (the Permanent Secretariat of NTF was to be located at MOWA), and chairs the Cambodian COMMIT Task Force.[84]  The COMMIT Task Force is apparently still active, is led by MOWA, and required to work with the Secretariat of NC/S.T.S.L.S to implement the various MOUs discussed above.[85]

Currently, there is little MOWA does directly in the specific area of repatriation.  Its activities are directed primarily to raising awareness, conducting studies, and assisting in community development and village activities to help prevent the stream of trafficking (so called “upstream” activities).[86]  It also has some responsibilities to assist with victim identification, improving counseling, and fighting victim stigma.[87]

b. Contributions of National Task Force (Now NC/S.T.S.L.S.)

As indicated, the NTF was established to implement the Cambodia-Thailand-Vietnamese MOUs and Agreements, as well as the regional Greater Mekong Sub-Region MOUs.[88]  The NTF also had the ambitious goal of coordinating the participation of eighteen different ministries or offices involved in handling victims.  Its accomplishments are not altogether clear in that regard. It seems the NTF was more a multi-ministry coordinator and plan implementer, rather than a law and policy setter, in contrast to the ministries involved in it, which make binding laws and regulations.  Significantly, a NTF flow chart indicates MOSAVY is the only named ministry involved in coordinating repatriation and reintegration.[89]  NTF was involved in formulating the previous National Plan of Action, and the NTF (under the auspices of MOWA) merged with the High Level Working Group to Lead the Suppression of Human Trafficking, Smuggling, Labour Exploitation, and Sexual Exploitation of Women and Children (HLWG) (under the auspices of MOI) in late 2009 to form the current NC/S.T.S.L.S.[90]

The NC/S.T.S.L.S. is led by a Deputy Prime Minister (Mr. Sar Kheng) who is also Minister of Interior; it has a Secretariat, which is led by the Secretary of State of MOI, and includes six Working Groups, one of which is a Reintegration and Repatriation Working Group.[91]  The Working Groups operate at the national and sub-national levels.  The NC devised the new 2011-2013 National Plan of Action.[92]

The current activities of the NC in regard to trafficking are very extensive, and can be found in the National Plan of Action, Implementation Table.[93]  In terms of repatriation specifically, the NC’s roles are relatively insignificant, including assisting in victim identification and dissemination of MOSAVY’s Policy and Minimum Standards.[94]

c. Contributions of CNCC

The Cambodian National Council for Children (CNCC) was formed under the auspices of MOSAVY, with MOSAVY’s head Minister serving as its Chair.[95] It exists, but information from the human rights group we assisted indicated that they are inactive.  Nevertheless, the current National Plan of Action includes some active roles of the CNCC such as sponsoring children and youth forums, raising awareness of children’s rights, and doing research on their behalf.[96]  The CNCC had also assisted in MOSAVY’s joint effort with UNICEF in promulgating the Minimum Standards on Alternative Care for Children, an important document in general support of quality aftercare—presumptively even for foreign (trafficked) children.[97]

In December 2007, the CNCC issued its Decision on the Guideline for the Protection of the Rights of Trafficked Children.[98]  The Prime Minister supported this document, adding a statement and signature to it.[99]  This Decision (Guideline) was intended, it seems, to have some force.  Its value is that it contains some specific, useful language for advocacy, which is analyzed in the second article (Fall).

D. Summary on Administrative Issues

To the extent an intentional plan on handling rescued victims can be ascertained from the above information, it shows MOSAVY is the intended administrative head in determining policy and procedure for rescued victims.  Other institutions or government entities may have the lead in different aspects of the anti-trafficking plan (i.e., the NC/S.T.S.L.S), yet here we are speaking very specifically about the post-rescue handling of foreign victims.  MOI and other ministries should assist MOSAVY on this.  Essentially, MOSAVY’s Proclamations (Prakas) and policies should govern and be given the greatest weight in this matter.  In the second article (Fall), I consider the content of those Prakas and polices, and other legal standards (including specific international ones), which support victims and suggest against summary repatriations. First, however, an introduction to Cambodia’s legal system is necessary, since available legal norms differ in their authority or weight, according to Cambodia’s hierarchical system of laws.

III. Introduction to the Legal System and Other Norms in Cambodia Applicable to Rescued Victims

In this section, I will give a short survey of the various kinds of laws and regulations and international legal standards that may be involved. I take this approach because Cambodia does not have a single nationally binding law directly on point to address victim aftercare and rehabilitation issues.[100]  In our research, we saw a host of several different international standards, laws, and regulations, often emanating from, or influencing, a variety of sources in the government.  In light of that, I will attempt to bring some understanding to that mix of standards, hoping to shed some light on their relative weight.  Like the issue of determining who is in charge of the administrative process, this issue requires a fair amount of interpretation in determining the weight of various legal standards. In the second article (Fall), I will delve into the standards to show how they apply, and how they should protect rescued victims, indicating specifically how summary repatriations are improper.

In general, the following subsection (A) offers what I believe to be a realistic hierarchy of Cambodian law and legal principles.  Some of this will require an introduction to Cambodian legal vocabulary, including some helpful explanations of that terminology and Cambodian legal concepts, which are provided in subsection (B).

A. A Hierarchy of Laws and Legal Principles in Cambodia

An intended sense of hierarchy of legal standards is generally determinable in Cambodian law, due to the introductory language, or chapeau of almost any Law, Decision, or Regulation.  These introductory sections of a law, for instance, usually indicate a list of supporting legal norms, presented in a hierarchical order, upon which the current law or regulation is based. Such prefatory phrases like the following are common: “having seen the Constitution of the Kingdom of Cambodia . . . [and] having seen [Preah Reach] Kret dated September 24, 1993 on the appointment of the first and the second Prime Minister . . . [and] having seen Kram NS-RKM-0196-04 dated January 24, 1996, on the creation of the Ministry of Justice . . . [we] promulgate the law on [etc.]. . . .”[101]  Thus, the governing law supporting a particular Law, Proclamation, Decision, or other norm in a particular area is generally determinable, and this supporting law is typically listed in a hierarchical pattern.  Seeing that pattern, and according to actual practice, the following is suggested as a general hierarchy of laws and legal norms in Cambodia:[102]

  1. The Constitution
  2. Treaties and similar International Instruments, Conventions[103]
  3. Law (Preah Reach Kram; a legislative Act issued by the National Assembly, as indicated briefly above)
  4. Prime Minister’s Recommendation (Anuk Sas; various kinds)[104]
  5. International Agreements/MOU (as with Thailand and Vietnam)[105]

After this, there are various instruments, similar in effect to “Regulations” (although there is no clear satisfactory term for all of them, collectively):

  1. Royal Decree (Preah Reach Kret; an appointing decree issued by the King)[106]
  2. Sub-decree (Anuk Kret; adopted by Council of Ministers and signed by the Prime Minister)
  3. Decision (Sekdei Samrech; individual decision of the Prime Minister, and/or others at various, different levels)[107]
  4. Proclamation (Prakas; issued by various ministries, like MOSAVY)
  5. Inter-Ministerial Proclamation (previously, Sahak brokas, issued by ministers of several ministries jointly)[108]
  6. Circular (Sarachor; to be issued by the Prime Minister and/or by a Minister to explain or clarify certain legal regulatory measures or to provide instructions; may also include a ministry’s Directive[109])
  7. Municipal, Provincial, Commune, or District Decision (Deika, or Deka; issued by a city, province, commune or district governor within their geographical limit; similar to administrative decisions)
  8. Decisions of professional associations (Bar Association, Institute of CPAs, etc.)

B. Elaborating on Some of the Above Terms

This next section is intended to elaborate on some of the legal terms and the nuances they create in this hierarchy above.  Although some terms are common, they may have a different legal application in Cambodia in comparison to other contexts.

1. Treaties/Conventions

Sometimes, a treaty[110] or convention shares constitutional import, although usually a treaty or convention is considered to be only on equal footing with a “Law.”  For example, article 31 of Cambodia’s Constitution states, “[t]he Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human rights, the covenants and conventions related to human rights, women’s and children’s rights.”[111]  According to common constitutional interpretation, a state’s constitution is generally considered to have higher authority than a treaty, but the Cambodian Constitution actually incorporates some human rights instruments into the Constitution as part of the supreme law of the land.[112]  In a particular civil or human rights context, the specific provisions in an international human rights convention may thus govern against broader or different provisions in the Constitution itself, and this seems to be an acceptable interpretive practice in Cambodia.[113] This has clear implications for the rights of rescued foreign trafficking victims under any applicable international law: such international standards may be decisive in determining victims’ rights.

In technical terms, a treaty requires some formal, internal ratification process to become law in Cambodia, including the vote of the National Assembly and Senate, and final approval by the King.[114] However, there are no indications any of these steps have been followed in this matter as to the International MOU’s/Agreements Cambodia has entered into with Vietnam and Thailand.

2. International Agreements/MOUs

International agreements generally have a greater binding effect than MOUs, but are considered less binding than treaties.[115]  Article 1(a) of the Vienna Convention on the Law of Treaties, helps explain the distinctions by stating, “a ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”[116] An international agreement is intended to have an obligatory character, although less than that of a treaty.[117]

Typically, MOUs may be considered to have moral or political force, but not legal force; they may also have an estoppel effect on a signing government.[118]  An MOU may in some cases be “subject to” the law of treaties, without giving rise to the same legal obligations, and this is usually where the intention of the governments involved was to enter into an “international agreement” in the sense of an instrument with greater force.[119]  An MOU not intended as a binding “international agreement” does not require registration under article 102 of the U.N. Charter, and may remain confidential among the parties.[120]

In the specific context of Cambodia’s relations with its neighbors, international MOUs can be very significant. This was certainly the case in a land/border dispute between Cambodia and Thailand, in which both States staked their claims on an MOU governing between them.[121] The International Agreement and MOUs between Cambodia and Vietnam, and Cambodia and Thailand on the issue of repatriation should be viewed in light of these examples and principles.

3. Law (Kram)

Law has a limited meaning in Cambodia. It means an “Act.”  A Preah Reach Kram is used to bring a “bill” (Chbab, or proposed law) into force, as an actual Law.  The document is signed by the King for that purpose, in accordance with the legislative process discussed above.  A Kram is also used to establish institutions such as ministries.[122]

4. Decision (Sekdei Samrach)

A Decision is primarily used in the settlement of a legal or administrative conflict, but is not like a court decision. As mentioned above, there are several varieties of Decisions, including those issued by the Prime Minister, the Council of Ministers, or the Head of a Department (within a ministry), and by even lesser government institutions, and professional entities.[123]  The hierarchical rank of a Decision is thus completely relative on the scale, depending primarily on who issued it.

Decisions are somewhat difficult to pin down, and thus pose some administrative, hierarchical problems.  There has often been some confusion in their use, and even abuse.  The confusion may stem from situations in which the Decisions issued by the Prime Minister or Council of Ministers conflict with other laws.  As noted, the Prime Minister may also make “Recommendations,” (see above), and also has specific authority to issue Sub-decrees (Anukret), so the need to issue Decisions (Sekdei Samrach) is somewhat questionable.

Since the Decision’s maker at the highest levels (either the Prime Minister or the head Minister of the Council of Ministers) is considered very powerful, seldom does anyone challenge the constitutionality or the legality of a high-level Decision.  Decisions at the next levels down, issued by the Department Heads within a ministry and so forth, are certainly less ironclad.[124]

5. Proclamations (Prakas)

These are usually issued by the heads of ministries.  Significantly, each Prakas (and Circular) binds the indicated ministry in its sphere of authority within the country as a whole.  It should also be binding as against other government institutions and ministries to the extent the Prakas (or Circular) is truly issued within the realm of the ministry’s subject matter authority. This assertion is not without controversy.  However, this author’s view seems to have support in the Kram dated July 20, 1994 On the Organization and Functioning of the Council of Ministers, specifically article 29, stating:

The head of ministry has power to issue Prakas and Circulars. Circulars are texts for enlightening the works/affairs and for giving instructions. Prakas or Circulars, can neither stipulate on any issues that are not      concerned within the framework and competence of the ministry, nor contradict with other norms and standards of the royal government, such as Anukret or Circulars. (emphasis added)[125]

This matter is very important because it deals directly with the respect one ministry pays to another, and this highlights precisely the administrative tension expressed above, between MOI and MOSAVY, in their approaches to handling rescued victims.[126]  In essence, if MOSAVY is authorized to issue governing Prakas on issues of aftercare and repatriation (as seems to be the case), MOI should not act contrary to MOSAVY’s Prakas.

Prakas may also be issued collectively, or jointly by a group of ministries on a specific matter. Prakas can only be contradicted by a superior “Law.”[127]

6. Circulars (Instructions)

Circulars can be issued by the Prime Minister, the Council of Ministers, and also by individual ministries to give guidance and instruction on specific matters within the issuer’s jurisdiction. They are not at quite the same level as Prakas.  Circulars face the same issues of scope and reach through a ministry as Prakas, mentioned above.

C. Value of This Information in Assisting Rescued Victims

A variety of the assorted legal instruments indicated above may be involved at various levels in the government with the question of repatriation of victims.  Implementation of these instruments of course would come through the various institutional actors mentioned above in section II.C.  The weight of that legal authority is thus a hybrid, or intersection, of at least two considerations: one is the actual rank of a law or other legal norm in the country, and the other is the rank of the government institution responsible for keeping or enforcing it.  From this, it is possible to fashion a list of governing law and processes, something almost systematic, that should protect the human rights and serve the best interests of rescued victims.

In the second article, I will attempt to identify many of the specific laws and legal norms that apply to rescued foreign victims of sex-trafficking.  In addition, I will seek to map-out the steps that should be followed in an appropriate, intentional, administrative-legal system in handling the care of these victims.

 IV. Conclusion

Sex-trafficking has long been a plight in Cambodia.  Many victims, including foreigners, are fortunately rescued.  Summary repatriations of the rescued victims, however, do not serve the interests of justice and are not in the victims’ best interests.  The escalation of incidents of summary repatriations of foreign victims out of Cambodia in the last several years may be largely attributed to administrative confusion (even tension) between two of Cambodia’s state actors in the area (MOSAVY and MOI), as well as the lack of a clear systematic application of various governing legal norms.  This first article was intended to help sort out some of that administrative confusion and introduce the reader to various legal norms which have developed in Cambodia, in hopes of discovering a suitable legal and administrative system for helping victims.  Specifics of that system are covered in the second article.

Suffice it to say for now that the above shows the focal point of activity in handling rescued foreign victims rests with MOSAVY.  MOI and other institutions should play a supporting role. Greater cooperation between the institutions involved, and a clearer understanding of their respective roles, are essential to promote justice and to avoid the tempting default of summary repatriations.  A comprehensive Kram covering many of the specifics of victim rescue and aftercare would have been helpful, but it does not exist.  Instead, a suitable and just system of victim aftercare, which avoids summary repatriations, can still be parsed together and fashioned from elements of Cambodia’s already-existing legal standards and administrative structures.  The specific content of that, again, is addressed in the second article.

 


* Visiting Professor, Trinity Law School, CA. Lecturer, Faculty of Law, Universitas Pelita Harapan, Indonesia. Professor Talbot would like to thank the following individuals for their contributions to this article: Euna Kim, Samnang Lim, Sokunvannary Tep, Vivian (Byungsun) Lee, and the several student assistants at Handong International Law School.

[1].              See Ministry of Social Affairs Veterans and Youth Rehabilitation Policy and Minimum Standards For the Protection of the Rights of Victims of Human Trafficking 1 (2009) [hereinafter MOSAVY Handbook] (defining victims as anyone abused or exploited in human trafficking, and stating that victims are not illegal aliens).

[2].              See International Organization for Migration (IOM), International Migration Law: Glossary on Migration 55 (2004).

[3].              Some victims are sold into sexual slavery by members of their own family or acquaintances, and going back “home” is not such a good idea; still others may have been kidnapped, and wish to return.  See Nefarious: Merchant of Souls (Exodus Cry 2011).

[4].              See IOM, International Migration Law: Glossary on Migration 18 (2004). Deportation is defined as “the act of a State in the exercise of its sovereignty in removing an alien from its territory to a certain place after refusal of admission or termination of permission to remain.”  Id.  Deportation is the removal of illegal aliens, while repatriation refers to a benign return to one’s homeland.  Victims should not be repatriated in a summary fashion, more resembling a deportation.

[5].              Information from the contracting human rights group (notes on file with the author).

[6].              Vietnamese victims in Cambodia, and their repatriation, is very well known and documented. In comparison, it seems little statistical information is known about victims trafficked from Thailand into Cambodia, although this is purported to be the case. The human rights group we assisted also believed this to be the case, although victim identification is difficult. Cambodia also recently released its National Plan of Action on the Suppression of Human Trafficking, Smuggling, Labour, and Sexual Exploitation (S.T.S.L.S.) 2011-2013 (2011) [hereinafter National Plan of Action], indicating the existence of victims from Vietnam and Thailand in Cambodia. Id. at 47 (Activity Group 4.3.1) (it appears the authorship of the National Plan of Action is a consortium, including MOSAVY, and led by the National Committee on the Suppression of Human Trafficking, Smuggling, Labour, and Sexual Exploitation [NC/S.T.S.L.S.]). The far more prevalent and documented situation involving Thailand, however, is the frequent trafficking of Cambodians into Thailand, and not the inverse.

[7].              See generally MOSAVY Handbook, supra note 1. MOSAVY has been abbreviated in the past in a several ways to fit its change of name: initially, it was “MoSalvy,” (when it included a labor component) and somewhat later, just “MoSavy” (or MOSVY), and other varieties may exist.  I will simply use “MOSAVY” (in all caps) for sake of convenience in this set of articles.

[8].              It is not clear why MOI’s actions seemed so at odds with MOSAVY’s standards. I address this in section II, below. Interestingly, the International Organization for Migration (IOM), United Nations Inter-Agency Project on Human Trafficking (UNIAP), and other NGOs were also working with the MOI on proper procedures for victim identification and repatriation at this time. See National Plan of Action, supra note 6, at 7.

[9].              See MOSAVY Handbook, supra note 1.

[10].            Information on file with the author. It goes without saying Cambodia may just be camouflaging summary repatriations better, but in fact, reports indicate a real improvement. A lingering concern, always, is the possibility of Cambodia reverting back to the former situation. In a severe economic squeeze, that can easily happen.

[11].    See National Plan of Action, supra note 6, at 4.  These initiatives include the creation of the Department of Human Trafficking and Victim Reintegration within MOSAVY in 2011.  The United Nations Office of Drugs and Crime (UNODC) has also begun a large project in collaboration with MOSAVY and MOI for the purpose of developing Standard Operating Procedures (SOP) for identification of trafficking victims. (Information supplied by the human rights group in April 2012).

[12].            In any subsequent articles tracking this issue, I would consider including progress reports on how well the expected steps in victim handling are being followed, any administrative changes and new laws, and possibly more permanent solutions, since many victims may wish to stay permanently in Cambodia, but face obvious and legitimate immigration issues. See, e.g., Coordinated Mekong Ministerial Initiative Against Trafficking (COMMIT), (Re)Integration-Perspectives of Victim  Service Agencies on Successes & Challenges in Trafficking Victim (Re)Integration in the Greater Mekong Sub-Region, available at http://www.no-trafficking.org/Apr%202012%20 COMMIT%20 reintegration% 20booklet.pdf (highlighting seven areas of needed improvements) [hereinafter Commit Initiative].

[13].            As many as 1061 repatriations of trafficking victims were noted from 2005-2007, and 179 known sexual exploitation cases in trafficking were recorded between 2005 and 2006. United Nations Inter-Agency Project on Human Trafficking (UNIAP), Siren Human Trafficking Data Sheet: Cambodia, (v.1.0 March 2008), available at http://www.notrafficking.org/content/SIREN/SIREN_pdf/china%20siren%20data%20sheet%20sept%202008.pdf.  In terms of repatriations, and as a sample, Cambodia officially recorded 47 victims repatriated to Vietnam between March 1999 and May 2005. See MOSAVY & IOM, Repatriation from Cambodia to Vietnam of Vietnamese Victims of Trafficking from 15 May 1999 – 30 March 2005, at 22, available at www.humantrafficking.org/…/final_report_31_may_2005.doc [hereinafter Vietnam Report] (note: this report is combined with another report, MOSAVY & IOM, The Return and Reintegration of victims of Trafficking from Cambodia to Thailand 01 July 2004 – 30 March 2005 [hereinafter Thailand Report], in a single document).  It is doubtful, however, whether this number reflects the actual number of persons trafficked, and it does not likely include those returning by other means.

[14].            Indications since 2010 show strides and improvements in this area. Some of this is due to ongoing assistance from International Organizations (IOs), including the IOM, and several NGOs. About 200 organizations and 5000 people are estimated to be working on trafficking issues in Cambodia. See Guy Delauney, Trafficking Countdown in Cambodia, BBC News, Apr. 6, 2007, available at http://news.bbc.co.uk/2/hi/asia-pacific/6532181.stm (comments of Maria Sander Lindstrom of the Asia Foundation).

[15].            DFDL Mekong Legal & Tax Advisors, Cambodia Legal & Investment Guide 6 (2010).

[16].            Id.

[17].            This is the son of the highly celebrated King Norodom Sihanouk, who died in Oct. 2012.

[18].            Cambodia Const., arts. 21, 28 (new).

[19].            Id. art. 26 (new).

[20].            See U.N. Dep’t of Econ. & Soc. Affairs, Kingdom of Cambodia Public Administration Country Profile, § 2.2 (Feb. 2004), available at http://unpan1.un.org/ intradoc/groups/public/documents/un/unpan023231.pdf (indicating that all are members of the Government, except under-secretaries of state (also called “reserved politicians”)).

[21].            Id.

[22].            Cambodia Const. art 121 (formerly art. 102).

[23].            See generally Cambodia Const., chs. VII (arts. 90 (new) – 93 (new)), X. The executive branch may propose a law, but it cannot enact law. The executive branch, however, may pass: (a) Sub-decrees (prepared by the Council of Ministers and signed by the Prime Minister); (b) Proclamations (Prakas – prepared by each ministry and signed by its Minister); (c) Circulars (Sarachor – issued by Prime Minister and/or a Minister to explain or clarify certain legal regulatory measures or to provide instruction); (d) Decisions (Sechkdei Samrech—an individual decision of the Prime Minister and/or of a Minister); (e) Provincial Notices or other Decisions (Deika – issued by a provincial governor within the geographical limits of his province). See discussion, infra, section III.A.

[24].            See Ministry of Foreign Affairs and International Cooperation [MOFAIC], Government Ministries in Cambodia, available at http://www.mfaic.gov.kh/ evisa/Cambodia-Government-Ministry.aspx (giving a general, albeit slightly out-dated listing).

[25].            Id.

[26].            See National Plan of Action, supra note 6. As noted, the tension between their approaches was a major focus of our project assistance, and of this article.

[27].            Strategic Information Response Network (SIREN), UNIAP Report: Mekong Region Country Datasheets, Human Trafficking 2010, available at http://www.notrafficking.org/reports_docs/siren/uniap_ 2010ht_datasheets.pdf (listing several other ministries that may be involved in some way on issues of trafficking including education and tourism).

[28].            Cambodia Const. arts. 28 (new), 91 (new), 93 (new).

[29].            Cambodia Const. art. 90 (new).

[30].            Id. arts. 26 (new), 31, 90 (new); see also Kong Phallack, Overview of the Cambodian Legal and Judicial System and Recent Efforts at Legal and Judicial Reform, in Introduction to Cambodian Law 1, 11 (Hor Peng et al., eds., 2012) [hereinafter Introduction to Cambodian Law].

[31].            Cambodia Const. art. 128 (formerly article 109).

[32].            See Kong Phallack, Overview of the Cambodian Legal and Judicial System and Recent Efforts at Legal and Judicial Reform, in Introduction to Cambodian Law, supra note 30, at 11-12, 448.

[33].            See Kong Phallack, Overview of the Cambodian Legal and Judicial System and Recent Efforts at Legal and Judicial Reform, in Introduction to Cambodian Law, supra note 30, at 11-12; see also Cambodia Const. art. 131 (formerly art. 112), 132 (formerly art. 113), 136 (formerly art. 117) (indicating these non-court components).

[34].            See Kong Phallack, Overview of the Cambodian Legal and Judicial System and Recent Efforts at Legal and Judicial Reform, in Introduction to Cambodian Law, supra note 30, at 11.

[35].            See National Plan of Action, supra note 6 (other ministries include MOWA (victim stigma/discrimination issues and social worker training), Ministry of Justice (MOJ; victim identification, guardianship issues), Ministry of Labour and Vocational Training (MOVLT; vocational training assistance), Ministry of Foreign Affairs and International Cooperation (MOFAIC; repatriation and victim identification issues), Ministry of Education Youth and Sports (MOEYS; education and social work)); see id. at 45-52 (Strategy 4, Tables).

[36].            The National Task Force (NTF) is one example. Much of its work has been subsumed now into the new “National Committee to Lead the Suppression of Human Trafficking, Smuggling, Labour Exploitation and Sexual Exploitation of Women and Children” (NC/S.T.S.L.S.).  See National Plan of Action, supra note 6, at 4; see also MOSAVY Decision No. 13 SSR on the Establishment of the National Task Force to Implement Agreements on the Elimination of Trafficking in Persons, (Mar. 12, 2006); cf. MOSAVY Decision No. 35 SSR (Jul. 20, 2007) (no signed version available in English).  This 2006 draft document attempts to coordinate participation among a cross-section of eighteen different ministries, various government councils, and under-secretaries of state.  Id. art. 2.

[37].            The NTF (now NC/S.T.S.L.S.) was such an initial effort at communication.

[38].            See James Bair, Victims’ Justice: Promises Broken on the Road to trying the Khmer Rouge, International Justice Resource Center (Dec. 10, 2011), available at http://ihrlaw.org/2011/12/10/victims%E2%80%99-justice-promises-broken-on-the-road-to-trying-the-khmer-rouge/ (noting even Prime Minister Hun Sen had been in the Khmer Rouge in the past).

[39].            Index Mundi, Cambodia Demographics Profile 2012, http://www.indexmundi.com/cambodia/demographics_ profile.html (last visited Oct. 6, 2012).

[40].            That is, assuming that set-up is decipherable, and is basically a good one.

[41].             The human rights group we assisted laid blame largely on the limited reach of MOSAVY’s internal proclamations (Prakas) in having any kind of influence over other ministries (like MOI). However, if true, that still does not explain MOI’s apparent lack of deference to, and cooperation with MOSAVY in an area in which MOSAVY appears to have responsibility.

[42].            Although this author has not yet seen real evidence to support this view of complicity.

[43].            Administrative codes are often a part of countries’ civil law. Germany, for instance, has an administrative law called Verwaltungsrecht.  Verwaltungsrecht governs the relationships between authorities, including rules, regulations, orders, and decisions relating to administrative agencies.  Additionally, it specifies individual rights toward authorities. See Verwaltungsverfahrensgesetz (Administrative Procedure Act), May 25, 1976, eBAnz. at 102, last amended by Viertes Gesetz zur Änderung verwaltungsverfahrensrechtlicher Vorschriften – 4 [VwVfÄndG], Dec. 11, 2008, eBAnz. at 2418, §§ 1-103 (Ger.) [hereinafter VwVfG]. Indonesia also has an administrative code, but the consistency of its application is frequently questioned. See Law No. 5/1986 on the Administrative Court, amended by Law No. 9/2004 and Law No. 51/2009 (Indon.) (concerning the state administrative judicial system).

[44].            See generally VwVfG, supra note 43.

[45].            However, administrative provisions are typically included in laws on general matters, as explained below. I am told several Cambodian legal scholars studied French administrative principles, incorporating these into Cambodia. Interviews with Cambodian colleagues (notes on file with author); see also Theng Chan-Sangvar, Administrative Law And Decentralization, in Introduction to Cambodian Law, supra note 30 at 245, 257-58 (reflecting on the French influence in Cambodian administration, and underscoring the lack of an administrative code and a single court system to adjudicate both administrative and private lawsuits).

[46].            Interviews with Cambodian colleagues (notes on file with author; several available blogs offer similar sentiments).

[47].            Others regard the Prime Minister’s Recommendation as something less than “Law,” but above a standard “Regulation”; see descriptions infra section III.A. It may even consist of the contents of a speech. Evidently, few seem to know really where his Recommendation stands (its rank probably depends in large part on how important the Prime Minister himself sees his Recommendation in a particular context), but this exactly highlights the problem of intentional vagueness expressed by some of my colleagues.

[48].            See Royal Kram No. 02/NS/94 on the Organization and Functioning of the Council of Ministers (Jul. 20, 1994) [hereinafter July 20, 1994 Kram] (giving a fairly broad range of latitude to the Prime Minister); see also Theng Chan-Sangvar, Administrative Law And Decentralization, in Introduction to Cambodian Law, supra note 30, at 248-55 (discussing administrative structures); Royal Kram No. 02/NS/94 Promulgating the Law on Organization and Functioning of the Council of Ministers (Jul. 20, 2004) (updating the July 20, 1994 version).

[49].            See generally Agreement on Guidelines for Practices and Cooperation between the Relevant Government Institutions and Victim Support Agencies in Cases of Human Trafficking, art. 61 (Feb. 6, 2007) [hereinafter ICA] (detailing NGO registration with MOI, Ministry of Foreign Affairs). Interestingly, this is an “inter-ministerial agreement,” rather than the more typical “inter-ministerial proclamation” (and the latter is said to perhaps have greater legal effect).

[50].            See id.

[51].            Royal Kram No. NS/RKM/0105/001 Promulgating the Law on the Establishment of the Ministry of Social Affairs, Veterans and Youth Rehabilitation, art. 2 (Jan. 17, 2005) (indicating very generally, MOSAVY’s leading and management over social affairs).

[52].            See, e.g., Royal Kram No. 05/NS/94 on Immigration, arts. 5-6 (Sept. 22, 1994) (specifying MOI’s role to administer aliens, and procedures for checking resident cards, etc.).

[53].            The King alone may issue a Royal Decree (Kret); while only the Prime Minister can issue a Sub-decree (other ministries have the authority to issue regulations such as Proclamations, Circulars, Notifications, etc.). See infra section III.A. Regulation is used here as a broad, catch-all term, as there are all sorts of varieties and ranks of these. See infra section III.A. In most cases, a regulation would be considered lesser in rank than Kram (see infra section III.A).

[54].            See Sub-decree No. 54 on the Organization and Functioning of Ministry of Social Affairs, Veterans and Youth Rehabilitation, art. 3(A) (Apr. 8, 2001) [hereinafter Sub-decree on Organization of MOSAVY]. This Sub-decree indicates MOSAVY’s roles and duties in governing “all social services of the state,” and also generally alludes to its cooperation with other institutions. See id.

[55].            Essentially, there are three very important International Agreements/MOUs between Cambodia and neighboring Thailand and Vietnam relating to this issue: the Memorandum of Understanding Between the Gov’t of the Kingdom of Cambodia and the Gov’t of the Kingdom of Thailand on Bilateral Cooperation for Eliminating Trafficking in Children and Women and Assisting Victims of Trafficking, Cambodia-Thailand, May 31, 2003 [hereinafter Thai MOU], Agreement Between the Royal Gov’t of Cambodia and the Gov’t of the Socialist Republic of Vietnam on Bilateral Cooperation for Eliminating Trafficking in Women and Children and Assisting Victims of Trafficking, Cambodia-Vietnam, Oct. 10, 2005 [hereinafter Vietnam Agreement], and a Cooperation Agreement Between the Royal Gov’t of the Kingdom of Cambodia and the Gov’t of the Socialist Republic of Vietnam on Standard Operating Procedures (SOPs) for the Identification and Repatriation of Trafficked Victims, Cambodia-Vietnam, Dec. 3, 2009 [hereinafter Vietnam SOP].

[56].            Institutions such as the NTF (now subsumed within the NC/S.T.S.L.S.) and CNCC (virtually inactive) were not at the level of “ministries” but were rather akin to committees or task forces created by relevant ministries, and I include some of their past contributions in the discussion infra section II.C.2.a-c. If new institutions emerge, I will attempt to cover them in any subsequent writings.

[57].            Royal Kram No. NS/RKT/0196/08 On The Establishment of the Ministry of Interior (Jan. 25, 1996).

[58].            National Plan of Action, supra note 6, at 3.

[59].            National Plan of Action, supra note 6, at 6-7. MOI also apparently had an important role in drafting the National Plan of Action in collaboration with MOSAVY and others. In addition, the Minister of the Interior (head of MOI) is also the Chairman of the NC/S.T.S.L.S.  Id.

[60].            As of this writing, MOI is working with other IOs and MOSAVY on new victim identification SOP.

[61].            National Plan of Action, supra note 6, at 45, 46, 49.

[62].            National Plan of Action, supra note 6, at 37, 39-44 (relating both directly and indirectly to repatriation); see generally Vietnam SOP, supra note 55, arts. 1, 3, 4 (noting tasks in which both signatories must engage, while not specifcally naming the MOI).

[63].            See, e.g., Vietnam SOP, supra note 55; see also Thai MOU, supra note 56.

[64].            See Vietnam SOP, supra note 55, art. 4 (identifying laissez passer as a special identity card for a victim entering Vietnam). These steps will be laid out in greater detail in the second article (Fall).

[65].            See Sub-decree on Organization of MOSAVY, supra note 54, art. 24 (stating, “[in] any work that is related to the responsibility of other institutions (Ministries), the Minister of MOSAVY and the heads of those institutions shall cooperate with one another to divide responsibilities and enforce that work through co-proclamation of the Minister of MOSAVY and the heads of those institutions” (Unofficial student translation)). So far no such “co-proclamations” with MOI are known to exist.  However, they would now have to be referred to as “Inter-Ministry Proclamations.”

[66].            Information of incidents on file with the human rights group.

[67].            Searching Cambodia’s laws and regulations so far has failed to reveal a single law, regulation, guideline or decree in support of MOI’s approach.

[68].            Documents including The National Plan of Action and MOSAVY’s Handbook (articulating its Policy and Minimum Standards) outline numerous steps for MOSAVY to handle in the areas of victim aftercare and repatriation.  However, these activities are too numerous to cover in detail here, and are best addressed in the second article.  In general, this section is aimed at addressing the scope of MOSAVY’s authority on this issue.

[69].            See Royal Kram NS/RKM/0105/001, supra note 51.

[70].            Sub-decree on Organization of MOSAVY, supra note 54.

[71].            Sub-decree on Organization of MOSAVY, supra note 54, at 2.

[72].            Thai MOU, supra note 55, art. 17 (indicating “focal point”); Vietnam SOP, supra note 55 (indicating “focal authority” is the Department of Social Welfare (Anti-Trafficking and Reintegration Office [“ATRO”]) of MOSAVY, or in a given case the Provincial/Municipal departments of MOSAVY, both of which are within MOSAVY’s domain); see Vietnam Agreement, supra note 55, art. 14 (naming MOWA as the “implementing institution,” which seems to have been replaced by MOSAVY).

[73].            See generally National Plan of Action, supra note 6, at 23, 32, 37, 40-41, 45-52.

[74].            National Plan of Action, supra note 6, at 23-24, Activity 1.4.14.

[75].            National Plan of Action, supra note 6, at 23-24, Activity 1.4.14.

[76].            Although this could have been made clearer in the National Plan of Action (which almost seems to assume this cooperation will just happen), the pattern of MOSAVY’s leadership in repatriation issues is still sufficiently clear.

[77].            Sometimes also called “Brokas,” another source of law, at the ministry level. See definitions and hierarchy of laws in section III.A., infra.

[78].            July 20, 1994 Kram, supra note 48, art. 29.

[79].            July 20, 1994 Kram, supra note 48, art. 29.

[80].            Interview with a former head professor at the Royal University of Law and Economics, currently at the National University of Management. Identity cannot be disclosed without permission.

[81].            See July 20, 1994 Kram, supra note 48, arts. 9, 10, 13, 17, 30, 32 (discussing the Prime Minister’s role in controlling the Council of Ministers. Article 10, for instance, states, “the Prime Minister is the one who calls for meeting[s] and presides [over] those meetings.  The plenary meetings of the Council of Ministers decides to resolve all general affairs of the government.”)  An administrative resolution such as this may require issuance of a Sub- decree.

[82].            Thai MOU, supra note 55, art. 14 (naming the Ministry of Foreign Affairs and International Cooperation, Ministry of Justice, and Ministry of Tourism, as other institutions involved and required to cooperate).

[83].            See, e.g., Thai MOU, supra note 55.

[84].            See National Plan of Action, supra note 6, at 4, 7; see also MOSAVY Decision No. 13 SSR on the Establishment of the National Task Force, art. 7 (Mar. 12, 2006) (the NC/S.T.S.L.S. has subsumed most of the functioning of the NTF as of 2011, but the NTF, and thus MOWA, was involved in overseeing an earlier (“second”) National Plan of Action after 2007).

[85].            National Plan of Action, supra note 6, at 4, 7, 57 (indicating also the COMMIT Task Force started in 2005, and involves 11 ministries).

[86].            National Plan of Action, supra note 6, at 31-36, 45-46, 50.

[87].            National Plan of Action, supra note 6, at 31-36, 45-46, 50.

[88].            See Thai MOU, supra note 55; Vietnam Agreement, supra note 55; Vietnam SOP, supra note 55; Commit Initiative, supra note 12.

[89].            Notes supplied by the human rights group, on file with author.

[90].            National Plan of Action, supra note 6, at 4 (the HWLG was established in 2007 to lead a large-scale effort to halt trafficking in certain locations).

[91].            National Plan of Action, supra note 6, at 4, 7.

[92].            Id.

[93].            National Plan of Action, supra note 6, at 6, 17-57 (listing various roles of the Secretariat, who is involved in virtually every Activity Group of the five Strategies of the National Plan of Action, such as: 1) strengthening policy implementation and cooperation; 2) preventing trafficking and sexual exploitation; 3) enhancing criminal justice; 4) protecting victims (including by repatriation and reintegration); 5) “improving monitoring and evaluation.”)

[94].            National Plan of Action, supra note 6, at 46, 51.

[95].            National Plan of Action, supra note 6, at 7.  However, as of 2006, Prime Minister Hun Sen was the “Honourable Chairman” of the CNCC.  See Message of Prime Minister Hun Sen, in Policy on Alternative Care for Children (Apr. 11, 2006).

[96].            National Plan of Action, supra note 6, at 21, 28, 35. The CNCC also had a hand in earlier drafting of the National Plan of Action.  See id. at 6.

[97].            It had apparently also improved “community-based child protection networks” around that time. See Message of Prime Minister Hun Sen, in Policy on Alternative Care for Children (Apr. 11, 2006).

[98].            Cambodia National Council for Children, Decision No. 107 CNCC on Guideline for the Protection of the Rights of Trafficked Children of the Kingdom of Cambodia (Dec. 20, 2007) [hereinafter Guideline].

[99].            Message of Prime Minister Hun Sen, in Guideline, supra note 98.

[100].           However, it does have a law against trafficking. Royal Kram No. NS/RKM/0208/005 Promulgating The Law on Suppression of Human Trafficking and Sexual Exploitation (Feb. 15, 2008).

[101].           Taken as an example directly from the Kram on Suppression of the Kidnapping, Trafficking and Exploitation of Human Persons (Feb. 29, 1996) (older version of a current law).

[102].           A classic “textbook” hierarchy of legal norms is available, but may be less realistic in light of some of the informal legal mechanisms employed. A version of the classic hierarchy is:

  1. Cambodian Constitution
  2. Treaties and International Instruments
  3. Law/Act (Preah Reach Kram; or just Chbab when in a “draft” stage in the National Assembly; Preah Reach means “Royal”)
  4. Royal Decree (Preah Reach Kret, a Regulation; i.e., appointing or removing officials, signed by the King)
  5. Sub-decree (Anuk Kret also a Regulation, signed by the Prime Minister)
  6. Proclamation (Prakas)
  7. Circular (Sarachor); including also possibly a ministry’s Directive (instruction).
  8. Decision (Sekdei Samrach various kinds, and rank depends on issuer: if issued by the Prime Minister, it would be higher than a “Proclamation;” if issued by a Minister it ranks here)
  9. Lesser Decisions (Deika or Deka issued at various sub-national levels)
  10. Others: Announcements, etc. (Decisions of professional associations and others).

See Say Bory, General Administrative Law 41-42, 75, 88, 109, 116, 123-32 (Angkor Bookstore 3d ed. 2006) (English is roughly translated from Khmer).

[103].           International Agreements and MOUs, which are prevalent in this area concerning sex-trafficking victims, would have a lesser rank in the hierarchy than treaties.

[104].           The Prime Minister’s Recommendation is vague and it may consist of something said in a speech.  It has been used sometimes to surpass or modify a “Law,” although that should not be the case according to any true legal design.  See explanation, supra notes 46-48 and accompanying text.  Its rank in the hierarchy is thus contingent upon various, specific situations.

[105].           Again, the precise ranking of these International Agreements and MOUs is not entirely clear, and can be much lower than some of the following “regulations,” as I explain below.  I place them here for convenience and because of their unique nature, not because they are higher than Kret, for instance.

[106].           Kret (Royal Decree) is used chiefly to appoint, transfer, or remove certain officials and judges.

[107].           Decisions are various and can be issued at other levels, thus affecting their hierarchy. For instance, a Decision of the Constitutional Council should rank highly, just below the Constitution; a Decision of a Department Head (within a Ministry), should rank just below Prakas. Lesser Decisions may also be issued, as indicated above (i.e., even entities like the CNCC may issue Decisions).

[108].           Inter-Ministerial Proclamations should be at the same level of a Prakas.

[109].           A Directive is a kind of internal instruction in a government entity. It defies any precise location in the hierarchy because it may be issued at several levels, ranging as high up as the Prime Minister to ministries and others. In that sense it is similar to a Decision, as a catch-all, but can share similarities with a Circular, as an “instruction,” for instance, within a ministry. See, e.g., MOSAVY Directive No. 009 S.V.Y. on Reintegration and Follow-Up of Victims Residing in the Shelters of the Government and Non-Government Organizations (Sept. 28, 2007); see also email correspondence with Cambodian colleague and student, April 28, 2013 (on file with the author; explaining).

[110].           Obviously a treaty is not unique to Cambodia, but I treat here the understanding of treaty law domestically.

[111].           Cambodia Const. art. 31.

[112].           Id.

[113].           Interview with Cambodian colleague (notes on file with the author); see also Kong Phallack, Overview of the Cambodian Legal and Judicial System and Recent Efforts at Legal and Judicial Reform, in Introduction to Cambodian Law, supra note 30, at 10-11 (citations omitted).

[114].           Cambodia Const. art. 8 (stating “[t]he King shall be the guarantor . . . of international treaties”); Cambodia Const. art. 26 (stating “[t]he King shall sign and ratify international treaties and conventions after a vote of approval by the National Assembly and the Senate”); Cambodia Const. art. 90 (stating “[t]he National Assembly shall adopt or repeal treaties and International Convention [sic]”); see also July 20, 1994 Kram, supra note 48, art. 12 (stating “[t]he Prime Minister leads in negotiation and signature on trade agreement[sic], cooperation, economy, culture, science, technology, and national defense. The Prime Minister may authorize a member of the government to be the negotiator and the signatory.)”

[115].           Parry and Grant, Encyclopaedic Dictionary of Int’l Law 16 (Oceana, 2d ed. 2004).

[116].           Id. (citing Vienna Convention on the Law of Treaties, art. 1(a), May 23, 1969, 1155 U.N.T.S. 331).

[117].           Id.

[118].           Id. at 314.

[119].           Id. (citing Reports of the International Law Commission to the General Assembly, II ILC Yearbook, 188, U.N. Doc. A/CN.4SER.A1966/Add.1 para. 2 (construing ILC draft articles on the Law of Treaties)).

[120].           Id.

[121].           See Memorandum of Understanding between the Gov’t. of the Kingdom of Cambodia and the Gov’t. of the Kingdom of Thailand on the Survey and Demarcation of Land Boundary, Cambodia-Thailand (2000).

[122].           A Preah Reach Kram may also be considered a kind of “Royal Decree,” but this is also true of a Preah Reach Kret, which is an administrative appointment by the King.  To avoid confusion, and as acceptable and customary in Cambodia, it is best to refer to the Kram as a “Law” and the Kret as a “Decree,” and so this set of articles adopts that nomenclature.

[123].           See supra note 107; see also Guideline, supra note 98 (a Decision by a lesser entity).

[124].           A “Directive” (or Instruction) is a lesser known instrument and is similar to a Decision in that it can be issued by several levels in the government, including the Prime Minister. It is also similar to a Circular if issued in a ministry. See supra note 109 (giving an example).

[125].           See Stuart Coghill, Resource Guide to the Criminal Law of Cambodia, §§ 1.32-.34, 1.57, International Human Rights Law Group (2000) (indicating a Prakas only governs within the jurisdiction of the issuing ministry, and organizes the activities within that jurisdiction).

[126].           See discussion, supra section II.

[127].           See supra note 108 and accompanying text.

Give Me Back My Bicycle: The Use of Force to Recapture Chattel According to American Law and Jewish Law

Ephraim Glatt*

I. Introduction

II. American Law

A. Self-Help Privilege

B. Limitations on Recapture of Chattel

1. Wrongful Taking

2. Entitlement

3. Timeliness

4. Demand/Warning

5. Proper Purpose

6. Amount of Force

C. Justifications

III. Jewish Law[1]

A. Talmudic Passage

B. Rabbi Nachman Reexamined

C. Limitations

1. Limitations Analogous to American Law

2. Dissimilarities to American Law

D. Justifications

1. Maimonides

2. First Approach: Reparable Loss as Irreparable Loss

3. Second Approach: Separate Right or Power

IV. Observations

A. First Observation: Justification Explains Limitation

B. Second Observation: Inherent Good of the Individual

V. Conclusion

  I. Introduction

Reuben buys an expensive new bicycle and rides it all over town.  Simon eyes the bicycle enviously and makes plans to steal it.  When Reuben locks the bicycle to a tree outside the ice cream store, Simon jumps at the opportunity.  Using his bolt cutters, Simon cuts the lock and mounts the bicycle, leaving the bolt cutters on the ground.  At that moment, Reuben comes out of the store and sees Simon sitting on his bicycle.  Hoping to prevent Simon, whom he recognizes from the neighborhood, from riding off with his new bicycle, Reuben picks up the bolt cutters and hurls it at Simon.  The bolt cutters hit Simon directly on the head, leaving him unconscious on the ground.  Reuben retrieves his bicycle and rides off, noting the need to get a better lock for his bicycle.  Simon is taken to the hospital and suffers numerous injuries from the hit.

Self-help in the law is often defined as “legally permissible conduct that individuals undertake absent the compulsion of law and without the assistance of a government official in efforts to prevent or remedy a legal wrong.”[2]  The above anecdote discusses one potential self-help scenario: Reuben retaking his stolen item on public property by use of force, absent any physical danger to Reuben.  Yet, this “legally recognized alternative or substitute for a judicial remedy . . . may become unlawful when a self-helper oversteps the limits of the privilege.”[3]  It is thus incumbent on all legal systems to “identify potential self-help situations and the legal boundaries of appropriate self-help responses.”[4]

Further contemplation of the Reuben and Simon anecdote helps underscore the need for these legal boundaries.  Is Reuben criminally liable for throwing the bolt cutters at Simon?  What if he had killed Simon?  Must Reuben pay Simon’s medical bills?  Can Reuben wait until the next day to attack Simon and retrieve his bicycle?  Assuming that Simon escaped with the bicycle, could Reuben legally keep the bolt cutters in lieu of the bicycle?  These are only some of the many self-help questions with which every developed legal system must grapple.

Thankfully, “self-help is by no means a nascent legal phenomenon.”[5]  Rather, “[i]n various forms, self-help has been a familiar remedy in society since the initial stages of civilization.”[6]  In fact, almost “[e]very legal system addresses itself to the issue of self-help.”[7]  The American legal system and the Jewish legal system, or “Halacha,” are no exceptions.  Both of these systems have extensive laws regarding the self-help privilege, albeit with important differences.  Studying these discrepancies, especially ones related to the limitations and justifications of the privilege, helps better our understanding of the complex legal theory behind this doctrine.

This Article discusses the American and Jewish legal systems’ diverse views on the specific issue of retaking an item on public property by use of force, in the absence of physical danger to the self-helper.  Part II of this Article details the history of American law in relation to the self-help privilege and gives the current state of the law in many jurisdictions.  It focuses primarily on the American legal system’s limitations and justifications of this privilege.  Alternatively, part III of this Article examines the Jewish law’s perspective on the self-help privilege.  Examining the Talmud and its classical commentators, the section focuses on the Jewish system’s limitations and justifications of this privilege.  Part IV of this Article analyzes the discrepancies and identifies two observations.

II. American Law

 A. Self-Help Privilege

“Self-reliance, perseverance, ingenuity, and the noble notion of rugged individualism have been pervasive themes in the American lifestyle since the precolonial era.”[8]  As such, an organized judiciary exists “despite its apparent contravention of American wherewithal and human nature, partly because the courts and laws provide an adequate and efficient alternative for redressing wrongs.”[9]