By Adrian Mejia
In 2016, 80 individuals will own a level of wealth equivalent to that of the world’s poorest 3.5 million individuals. This is not the beginning of a sci-fi blockbuster starring Matt Damon. That, is what we learned from a recent report from the anti-poverty NGO, Oxfam. In addition to widely publicizing its findings, Oxfam has presented a plan at the World Economic Forum on how governments can tackle the widening gap. While we continue to hear more on inequality in terms of how it violates an innate sense of what we consider to be fair, it is important to step back and consider why it actually is corrosive. After all, if everyone where well-off what would be the problem with some of us having a lot more than others? A problem of inequality is not necessarily a problem of poverty.
Social Epidemiologist Richard Wilkinson, tell us that we now have the data to point to exactly what is wrong with unchecked inequality. This social scientist concludes from comparative studies, that societies with “large income differences,” suffer from more pervasive social problems. These “include physical and mental illness, violence [including higher rates of homicide], low math and literacy scores among young people, lower levels of trust and weaker community life, poorer child well-being, more drug abuse, lower social mobility and higher rates of imprisonment and teenage births.” Worthy of note is the fact that in these societies, “The police, prisons and public services needed to defend ourselves against these problems are expensive and often not very effective.”
These are the real costs to leaving gross inequality unaddressed. The bigger the economic distance between people, the more people feel disrespected, the more people feel disrespected, the higher the propensity for societal breakdowns.
Putting this in the context of the global community, it follows that a wide gap between the world’s rich and its poor, would be a cause of global strife. What are the costs associated with global inequality?
Larry Elliot and Ed Pilkington, “New Oxfam report says half of global wealth held by the 1%” The Guardian January 19, 2015, http://www.theguardian.com/business/2015/jan/19/global-wealth-oxfam-inequality-davos-economic-summit-switzerland
Quotations in this article and ideas in third paragraph come from Wilkinson article.
Richard Wilkinson, “Why inequality is bad for you — and everyone else,” CNN November 6, 2011, http://www.cnn.com/2011/11/06/opinion/wilkinson-inequality-harm/index.html
According to a NY Times article, A British court ruled against GCHQ, a British intelligence service, that in conjunction with the NSA collected and shared private information retrieved from personal computers without the owners’ knowledge. The Internet has allowed for new lines of communication to be formed and knowledge to be shared. This has brought people from many different backgrounds closer together allowing for the formation of a larger global community. However, this increased connectivity also has risks. The increased use of digital storage and the Internet has led to the private information of people to be increasingly vulnerable to theft. It will be interesting to see how laws will develop on the international level to better protect citizens globally.
In “Globalizing Justice,” Dr. Uprety and Dr. Jehani underscore the correlation between legal structure and development. The authors examine this relationship from the perspective of jurists viewing international relations through the lens of developing countries. The main objective of this book is to refute hasty conclusions offered to explain the failed attempts to transfer a legal system from one society to another – namely from a developed nation to a developing nation. Rather than ignorantly blaming the societies receiving the transplanted legal structure, this book examines the systemic failures of the contemporary international legal structure. The current state of international justice and the deficiencies associated within are summarized in an effort to emphasize the need for an alternative, rights based approach to development. Such an alternative approach necessitates an international decision making environment that is truly international, rather than a system financed by and organized to serve the interests of powerful states.
Readers will benefit from the authors’ keen insight on the topic, undoubtedly garnered from their international professional background – both have experience in senior legal positions at the World Bank. To start, the authors provide a thorough overview of the current international justice system. The overview varies in depth, on one hand examining the broad reaching landscape of the international justice system, and on the other, exploring the deeply rooted jurisprudential tension regarding the definition of international law. This examination includes whether international law should be approached through the lens of a realist or formalist. The book’s focus then turns to the problems and possible solutions related to globalizing justice.
The authors point to four main problems that hinder the progress of global justice. First, the anachronistic nature of the United Nations is examined, with special attention given to the flawed approach to participation and power sharing. Also addressed are the conflicts of laws between high and low developed nations and the resulting preservation of the status quo, especially the high-developed nations’ technological superiority. The second problem relates to the contradictions in trade and human rights interplay. The authors assert that modern globalization is solely focused on economic globalization, and in effect, allows basic human rights and individual dignity to be a mere afterthought. Third, the oligopolistic form of the international law making system is analyzed to emphasize the fact that the voices of high-developed countries drown out the low-developed countries; thus, the international law making system promotes the wealthy countries’ interests rather than promoting the development of justice. The fourth problem, interdependent growth, relates to the fact that each nation is driven to protect its own political, economic, and local interests rather than promote global interests.
The authors’ analysis of the problems related to global justice introduces a discussion addressing the need for a just legal system. Interestingly, the authors concede that a one-law-fits-all approach to improving global justice is futile; rather, a just global legal system should integrate the varied spiritual and philosophical foundations of each society. From this, it can be gathered that despite each society’s differences, an overlap of foundational justice is possible among the varied spiritual and philosophic approaches. To illustrate the point, the authors examine the common thread of justice development running through religions and philosophies ranging from Hindiusm, Judaism, Islam, to Ghandhi’s and Rawls’ theories of justice.
Dr. Jehani and Dr. Uprety’s analysis leads to many conclusions about the current international justice system’s ability to address globalizing justice, especially in developing nations. The underlying result is that the current system functions as a mechanism to transplant high-developed nations’ law wholesale to developing nations. As is no surprise to the authors, the transplant is not effective. Dr. Jehani and Dr. Uprety are of the opinion that misplaced blame is given to the receiving countries. Rather than continue to blame various aspects of the receiving societies, the authors examine the complex systemic flaws in the international justice system. While there is no cut and dry solution to the problem, Dr. Jehani and Dr. Uprety highlight the nonnegotiable ideals that must permeate any proposed improvement or solution.
Transitioning from the discussion of the need for a just legal system, and distilling the discussion of various approaches to justice, the authors note that regardless of the philosophical and spiritual source, a successful approach to the development of justice is one where the decision makers are the ultimate beneficiaries. This approach is known as the rights based approach.
The authors assert that a rights based approach to developing global justice would be an improvement on the current framework. The current framework for development is focused on the industrialization of low-developed countries, and in effect does away with the historical identity of the society. On the surface, industrialization may appear to be progress because the low-developed countries are aligning with the high-developed countries’ consumer based society. However this runs contrary to a rights based approach because the low-developed countries are not the ultimate beneficiaries of the development. The authors suggest that the current economic oriented measures of global development such as gross national product and general wealth accumulation must be replaced with measures relating to human existence and human dignity. Discussed in parts five and six, the authors posit that reforming the current international justice system and implementing the proposed rights based approach to development requires an international and domestic law-making arena where all voices are heard.
After a comprehensive analysis diving into the intricacies of the need, the alternative, and the method and implementation of the proposed alternative, the authors step back and provide a holistic conclusion. The authors repeat that the current international justice system is certainly not international, and requires a massive overhaul rather than minor adjustments.
An extraordinary feature of this book is the broad coverage of the intricacies related to the international justice system. The authors provide a thorough historical account of the developments that created the modern system. The historical foundation is established to contextualize the authors’ comments and criticism. The authors’ product represents a comprehensive analysis of the problems involved and offers persuasive improvements to the currently flawed international justice system. Both the specialist as well as the novice will benefit from this book because the reader is introduced to the landscape of international justice while provided with an intricate examination of the topic. For the specialist, Dr. Jehani and Dr. Uprety’s distinguished backgrounds provide unique insights on international law, making “Globalizing Justice: Deficiencies in the Quest and Discontents of World Development” an essential read.
In the spring of 2014, the world was kept on its toes with the daily news coming from Ukraine. Russia played an important role in this affair, keeping up threats of invasion of Crimea and abundant military action. In the end, Crimea held a referendum regarding its independence and subsequently was annexed into the Russian Federation. Putin’s “new vassal” was on everybody’s minds. In regards to international law, however, the process of declaring independence and annexation is much more complex. Peoples are guaranteed the right to self-determination under the Charter of the United Nations on the one hand, but on the other, the Charter also protects states’ territorial integrity. With the incident in Crimea, these two fundamental principles of international law experienced a major clash. In this article, after briefly introducing the facts of the Crimea Crisis, the author will examine both the state’s right to territorial integrity and the peoples’ rights to self-determination in the specific case and circumstances of Crimea. In doing so, the author takes into account the Quebec test and also the potential formation of regional customary law in the area of the former Soviet Union. Finally, this article strives to answer the question of the illegality of the annexation of Crimea by Russia.
The current conflict between Ukraine and Russia about the Ukrainian breakaway of the autonomous republic of Crimea and the special-status city of Sevastopol  raises fears of a new war in Europe, as well as serious questions about the impact of international law. In particular, claims that Russia’s intervention in Crimea were as legitimate as the North Atlantic Treaty Organization’s (NATO) 1999 intervention in Kosovo , and that the claims to independence of both territories are of similar value, are misguided . In this article, the fundamental principles of public international law, which are relevant to the situation in Crimea, will be explained and the question as to whether the breakaway of Crimea from Ukraine is legal under international law will be answered. While the primary aim of this article is to address the compatibility of Russia’s intervention in Crimea with international (customary) law, it will be shown in the course of this text that there is not only no “moral equivalence”  between the invasion of Crimea in 2014 and NATO’s Operation “Allied Force” in 1999, but also differing facts .
Crimea’s declaration of independence brings two fundamental concepts of international law into conflict with each other: territorial integrity and self-determination. Crimea’s vote for independence, which appears to be marred not only by the presence of Russian armed forces but also by very serious irregularities such as the absence of voter lists and multiple votes, is only legally relevant if international law allows for secession of Crimea from Ukraine as a permitted form of expressing the right to self-determination.
For hundreds of years, Crimea has been part of Russia , like Ukraine, which experienced only a few troubled years after World War I outside the Russian and Austrian Empires prior to becoming part of the Union of Soviet Socialist Republics (Soviet Union, USSR) . In 1954, when both Ukraine and Russia were part of the Soviet Union, Crimea was transferred from Russia to Ukraine . What was an internal matter at the time has now become an international question. In 1994, after the dissolution of the Soviet Union, the new separate Russian Federation, together with the United States and the United Kingdom (UK), agreed to safeguard the borders of the independent nation of Ukraine in the Budapest Memorandum . At the same time, Ukraine gave up the nuclear arsenal it had inherited when the USSR fell apart . While Ukraine has lived up to its part of the deal, its sovereignty is now at stake .
States have a legally protected right to the preservation of their territorial integrity . The fact that this is commonly referred to as territorial sovereignty already indicates the origin of the concept. The right to territorial integrity is a natural consequence of the sovereignty of the state in question. State sovereignty is one of the most fundamental principles of international law . Despite the increasing importance of human rights, non-state actors, and international organizations, states remain key building blocks of the system of international law .The state’s territorial integrity is a key component of state sovereignty as it is protected not only under customary international law but also under Article 2 (1) of the Charter of the United Nations (UN Charter), which protects the “sovereign equality of all [nations]” . As such, the obligation to respect other states’ sovereignty is a fundamental norm not only within the UN Charter but within public international law in general, i.e. customary international law, supported by longstanding state practice and opinio juris.
Likewise, Article 2 (4) of the UN Charter prohibits the use of armed force in international relations, although Article 51 of the UN Charter allows for the use of armed force as self-defense and for the defense of allies and Chapter VII of the UN Charter allows for the UN to take action to preserve or restore peace . While Russia claims that the armed forces operating in Crimea are not Russian regulars , international law has long recognized that states can also be held responsible for acts committed by armed groups which are de facto under the control of a foreign state . This very much appears to be the case with regard to the Russian-speaking forces operating in Crimea.
Russia’s claim that the ousted president Viktor Yanukovych had consented to an intervention does not hold water, as Russia claims that the invitation came after the ouster . As Mr. Yanukovych was no longer in office (regardless of how he lost it ), he was no longer in a position to invite Russia to invade Ukraine . If Russia had been serious about restoring the elected president to power in Ukraine against the will of the Ukrainian parliament, it at least should have tried to follow the path taken by the United Nations Security Council in Haiti  and by the Economic Community of West African States (ECOWAS) in Sierra Leone  in 1998 .
Some claim that Russia is entitled to operate in Ukraine as a consequence of Russia’s close relationship with Ukraine . Such a view is reflective of an imperialist approach  in which imperial centers claim powers over the periphery . This approach is often tempting for powerful states and spheres of interest and influence that have been claimed for a long time. What Russia claims with regard to Ukraine (and in 2008 with regard to Georgia) is a status that does not see Russia and Ukraine to be equally sovereign . This is not the same as being de facto economically dependent on another state, nor is it the same as being in a politically or economically weaker position in a group of nations, such as the European Union, in which membership is voluntary. President Putin is said to have told the younger President Bush in 2008 “that Ukraine is not even a country. Part of its territory is in Eastern Europe and the greater part was given to us” . At the end of the day, it is legally problematic whether Russia claims to rule parts or all of Ukraine directly. Such imperialism in which some states rule over others against the will of the latter is incompatible with the principle of the sovereign equality of states which is enshrined in the Charter of the United Nations .
As obligations which are contained in the UN Charter, the duty to respect the sovereignty of other states and the duty to refrain from using armed force unless explicitly permitted by the UN Charter have a particularly important status in international law as Article 103 of the UN Charter makes it clear that obligations under the UN Charter “shall prevail” over other obligations under international law .
International Law also gives peoples a right to self-determination. However, the population of Crimea consists of three ethnic groups: Ukrainians, Russians and Tatars . While Ukrainians and Russians already have states of their own, the majority of the Crimean Tatars remember historic injustices suffered by the Tatars at Russian hands  and support Crimea’s continued stay in Ukraine .
Article 1 (2) of the UN Charter describes as one of the goals of the UN the “develop[ment of] friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” . The next question then is whether this goal amounts to an obligation of states within the meaning of Article 103 of the UN Charter. If this is not the case, the territorial integrity of Ukraine takes precedence over the right to self-determination. In general, there are only very few indicators of a clear hierarchy in international law beyond Article 103 of the UN Charter  and falling within the scope of this norm would give the principle of self-determination a particularly high legal status. However, in the case at hand this question can be left open because there are several ways in which the right to self-determination can be exercised. As states are to be also the first guarantors of the rights of peoples , self-determination of a people should first be realized within the existing state. International law is, even more so than national legal systems, reactive rather than creative and, although it often positively influences the development of national norms, it is relatively conservative in nature, which is a logical consequence of the ultimate raison d’être of international law—the preservation of peace.
Therefore, international law places so much emphasis on legal certainty and the protection of existing states. This does not mean that the right to self-determination cannot lead to successful claims for independence:
The right of self-determination does not of itself give rise to a legal right for a state to intervene in the territory of another state, whether directly or through private actors. Where a people are being oppressed and force is being used against them by their own state, it is, I would argue, possible for them to seek and obtain military assistance of a defensive kind from another state. This is preferably through a resolution of the UN, as collective action by a number of states or as part of a self-defense agreement. However, a unilateral military action where there is no such oppression or force is unlawful .
Rather, the last step of secession may only be taken if a number of conditions are met which have long been recognized as being part of public international law and therefore binding upon all states and all who wish to exercise the right to self-determination . Declaring independence is only the most far-reaching manner in which to do so. On lower levels, a number of different options exist . While independence played an important role in the decolonialization era of the 1960s, many peoples that could claim this right will not aim for all-out independence but for a protection of their rights within an existing state. This is a model usually claimed in multi-ethnic states and by indigenous peoples.
International customary law requires that, in order to become an independent state, the peoples who wish to exercise the right to self-determination have to be oppressed in such a manner as to make meaningful self-determination within the original state essentially impossible . This test was elaborated in more detail in the Canadian decision concerning the possible secession of Canada’s French-speaking province of Québec . Investigating not only Canadian law but also analyzing Public International Law, the court established the Québec test, which reflected the existing customary law .
At this time, there are, however, no indicators that the people of Crimea would be discriminated against by the Ukrainian authorities . Unlike the Kosovo-Albanian population in Kosovo in 1999, the Russian-speaking people who live in Crimea in 2014 did not have to fear genocide . Crimea enjoys a degree of autonomy which is unrivaled by any other part of Ukraine . As the conditions of the Québec test have not been met, the people of Crimea are only permitted to exercise the right to self-determination (assuming that there is a Crimean people which can claim this right ratione personae to begin with) within the Ukrainian state and cannot secede from Ukraine.
Yet, one might wonder if the Québec concept is still a rule in customary international law. After all, there have been successful claims for independence in recent years, such as the dissolution of the former Czechoslovakia , the break-up of the former Yugoslavia  and of the former USSR , as well as the independence of South Sudan  and East Timor . While the dissolution of Czechoslovakia was consensual  and therefore cannot be compared to unilateral secessions, the independence claims by countries such as Slovenia, Croatia, or Kosovo are comparable at first sight from Crimea’s secession .
Claims to independence by countries such as South Sudan, East Timor, or Kosovo are considered successful because many other states have recognized the independence of these states . Recognition by other states is not legally necessary for the emergence of a new state . The case is different however, when virtually all states refrain from recognizing the new entity . This is because statehood requires a territory, a population, and an effective government . The latter requires that the government is actually able to engage in international relations—but if all states deny recognition, this is not possible—simply because no state will then enter any relations. There are a number of precedents for this—for example the homelands in South Africa, which had been declared independent states by South Africa during the Apartheid era . These areas, Transkei, Bophuthatswana, Venda, and Ciskei were not recognized and the collective non-recognition meant that they never were true states . The same is valid for the so-called Turkish Republic of Northern Cyprus (TRNC) , the Georgian breakaway provinces of Abkhazia and South Ossetia, Transnistria, Somaliland, or Nagorno-Karabakh .
Apart from the Russian Federation, no state recognized the statehood of the Republic of Crimea . This indicates that there might have been a lack of recognition, which was so severe as to prevent the Republic of Crimea from actually attaining statehood . Collective non-recognition does not require a complete non-recognition, but also includes cases in which just one or two countries have recognized a state or in which only non-recognized entities have recognized an entity as a state . Russia’s willingness to deal with the de facto government of Crimea is insufficient to establish Crimea as an independent state. The situation in Crimea is therefore comparable to the legal position of the TRNC.
It has to be noted that between the declaration of independence and the incorporation of Crimea and Sevastopol into the Russian Federation, there was not much time for other states to consciously refrain from recognizing the Republic of Crimea as a state , which leaves open the issue of whether the lack of recognition actually amounts to a collective non-recognition in this case. The short-lived nature of the Republic of Crimea, which lasted only a few days between the declaration of independence and its absorption by Russia, plays into the hands of Russia because the time of independence was too short for a collective non-recognition by the international community . Even though no other state apart from Russia recognized the Republic of Crimea as a state, the absence of recognition by other states might not necessarily amount to a collective non-recognition as other states simply did not have enough time to even reflect on the issue and make a decision whether or not to recognize this alleged new state. Yet, the legal position of the now former Republic of Crimea at the time it claimed to exist was significantly stronger than that of other would-be states, such as the TRNC, Abkhazia, South Ossetia, or Transnistria, all of which have claimed statehood for years without achieving much (if anything) in terms of recognition and without any effective foreign policy governance. In these cases, time has shown that, for example, the TRNC is not a state within the meaning of international law . By quickly incorporating the constitutive elements of the alleged Republic of Crimea (Ukraine’s Autonomous Republic of Crimea and the city of Sevastopol) into the Russian Federation, Moscow has at least avoided this verdict. This is not to say that the Republic of Crimea actually ever was a state – in fact, all appearances indicate that it was as little a state as the so-called TRNC is .
The successful claims to independence mentioned earlier have one thing in common: these states were able to declare independence because the people in question had been marginalized in the old state. In other words, countries like East Timor, Kosovo, South Sudan, Slovenia, or Croatia pass the Québec test. In this sense, it is much easier to make the case for the independence of the aforementioned states than for Crimea. The Crimean case is on a different level altogether and can only be compared to Abkhazia, South Ossetia, or the TRNC . The Baltic states as well as Montenegro’s claim to independence is different in nature as they only regained the independence they enjoyed prior to the occupation  (the situation is slightly more complicated with regard to Ukraine, which saw several competing claims to statehood in the time between the end of World War I and its inclusion in the Soviet Union). On the other hand, recognition has been widely denied to South Ossetia and Abkhazia , where the Québec test’s requirements were not met. This indicates that the Québec criteria still reflects the existing customary international law. However, the declaration of independence by former Soviet states (except the Baltic states  and, somewhat, Ukraine) as a result of independence referenda at a time when there was not the same level of oppression indicates that there might be a willingness of the international community to allow for unilateral declarations of independence even if there is no longer an overwhelming degree of oppression.
The same is indicated by the manner in which the government of the United Kingdom treated the discussion of the planned independence referendum in Scotland. If the UK government maintained that the Québec test was reflective of the current rule of international law in this regard, this should have been made clear. Instead of denying the legality of the proposed referendum under international law per se, the UK government merely spelled out consequences, such as an unwillingness to let an independent Scotland use the British Pound as a common currency . This lack of clarity on the part of UK authorities and the unwillingness of the UK government to prevent the proposed referendum  indicate a weakening of the existing customary law rule. Also, the fact that Spain refuses to recognize Kosovo due to fears over potential independence claims by the Basque Country and Catalonia further complicates the matter unnecessarily . If Spain were to take the Québec standard seriously and trust in the strength of international law, it would not have to fear Kosovo’s independence as a precedent as long as the conditions within Spain do not deteriorate to the level that would allow for secessions. In itself, these reactions to the mere possibility of independence claims, though, are not sufficient to change the existing customary international law.
On the other hand, it has to be noted that the Québec decision was made in 1998  and hence years after the dissolution of the Soviet Union. With the exception of the proposed Scotland referendum, the independence declarations by Kosovo, South Sudan, and East Timor, the post-1998 cases that are widely accepted by the international community were in compliance with the Québec test.
It can therefore be concluded that, in general, the conditions spelled out in the Québec test still describe the current customary international law.
There is, however, the possibility that a norm of regional customary international law  has been formed in the region of the former USSR (minus the Baltic states). According to Article 72 of the 1977 Constitution of the Soviet Union , every republic of the USSR had the right to secede from the USSR . Accordingly, from the perspective of the other Soviet Republics, the republics which gained independence in the early 1990s did so without having to fulfill the normal conditions of customary international law which were identified later in the Québec decision. Although with regard to every other state, a stricter standard might have been applicable, unless a regional customary law rule identical to the rule contained in Article 72 of the 1977 Soviet Constitution exists.
The question then, has to be whether the dissolution of the USSR created an instant rule of regional customary international law that would also be applicable to the secession of Crimea from Ukraine or if this was merely an application of Article 72 of the Constitution of the USSR, which would not be applicable to the current situation. The fact that not only other former republics of the USSR but other states around the world have recognized the statehood of countries such as Tajikistan, Uzbekistan, Armenia, and the other newly independent states on the territory of what used the be the Soviet Union  indicates that indeed a different standard applied to the dissolution of the USSR. At least this argument is noteworthy unless one were to assume that Russia’s dominance over the other Soviet republics was sufficient to amount to a level of oppression which would allow for secession anyway. The fact that the Soviet Union’s Constitution gave the republics a legal status not unlike that of constituent states in other federal nations, such as the states which make up the United States, Germany’s Länder, or Switzerland’s Kantone, indicates that despite massive human rights violations, the Soviet republics (with the exception of the occupied Baltic states and, to some extent, Ukraine, which had been conquered by Russia ) were not marginalized to a degree which would have made secession based solely on international customary law evidently possible.
This question, however, does not need to be answered in order to determine the legality of Crimea’s claim to independence. This becomes clearer when one looks at the four earlier cases of independence claims in the region in recent years: Transnistria, South Ossetia, Abkhazia, and Nagorno-Karabakh. Like Crimea, none of these territories was a republic within the meaning of Article 72 of the 1977 USSR Constitution . In all of these cases, the customary international law conditions for independence, as spelled out in the Quebec test, were not met at the time when they declared independence: the mere fact that there is an independence movement and a popular desire for independence does not allow for secession, especially not if the people in question are treated like any other group of citizens and with respect for their individual and collective human rights . Even if there was in the early 1990s an instant customary international law norm regarding secessions in the territory of the former USSR (minus the Baltic states), such a rule does not apply to Crimea today because earlier independence claims by other non-republic territories were not even supported by the majority of former USSR states: among the states in the territory of the former USSR, only Russia recognizes South Ossetia and Abkhazia , as well as Transnistria as independent states, Armenia claims that Nagorno-Karabakh is part of its own territory –and the four territories recognize each other as independent states. As Russia’s position with regard to Transnistria, South Ossetia, and Abkhazia (and Armenia’s position with regard to Nagorno-Karabakh) is similar to that of Turkey with regard to the so-called Turkish Republic of Northern Cyprus, these recognitions are insufficient in order to indicate the statehood of these territories. Like the TRNC, these territories are not independent states. The situation of Crimea on March 17, 2014 was identical .
Therefore, the Québec test applies to the situation in Crimea. Unlike in the case of Kosovo, the people of Crimea were not subjected to widespread violations of their rights to an extent that a unilateral secession would have been warranted. The claim by the Crimean leadership that their case is as legal as Kosovo’s secession from Serbia  does not hold water. Neither does their reference to the International Court of Justice’s advisory opinion  regarding the declaration of independence by Kosovo .
It has to be concluded that in the absence of persecution of the Crimean population by the Ukrainian government  the conditions of the Québec test are not met and that accordingly the right to self-determination cannot be utilized by Crimea for the purpose of breaking away from Ukraine. Accordingly, Crimea remains part of Ukraine. It is not impossible that the customary international law in this regard will change in the future, but with the current state of the law, Crimea’s claim for independence does not have a legal basis in international law. Under customary international law, it has long been illegal for states to recognize violations of the territorial sovereignty of another state as legal if in fact they are not . Russia’s claim is not only “weak” , it is not convincing in light of the existing customary international law.
Accordingly, Russia not only must refrain from using armed forces in Ukrainian territory, including Crimea, but is also prevented by international law from recognizing the referendum of March 16, 2014, in which an overwhelming majority of Crimeans is said to have voted to secede from Ukraine and to join Russia . Russia’s recognition of Crimea as an independent state on March 17, 2014, is as illegal as the recognition of the alleged independence of South Ossetia and Abkhazia was after Russia’s 2008 war against Georgia. Likewise, Russia’s claim on March 17, 2014, that Crimea is now a part of the Russian Federation is invalid .
However, as Russia enjoys veto power in the UN Security Council, Ukraine’s possibilities to seek help from the UN Security Council in order to preserve the peace with Russia appear extremely limited. Even if Ukraine was able to hold Russia accountable in the International Court of Justice, it would be the Security Council that would eventually be tasked with enforcing any judgment against Russia. Russia’s veto power would make this practically useless, in particular since it requires Security Council and General Assembly action to take away rights from a member state under Article 5, sentence 1, of the Charter of the United Nations . In so far, it appears that while Ukraine’s rights under international law are being broken, there is little recourse available in the realm of peaceful dispute settlement. While Ukraine would be permitted to use armed force in order to secure its borders, the new government in Kyiv has shown considerable restraint in light of Russia’s overwhelming military might.
These practical effects of Russia’s superior military power combined with its economic dominance over Ukraine and its veto power in the UN Security Council show that a collective security system is not always enough to protect states. In the long run, a truly fair international law will require the abolishment of the veto power and the creation of other kinds of safeguards that allow the UN to work effectively without putting it at risk of being abused. As the UN is an international, not a supranational, body, any such changes will require the consent of all UN member states, which is highly unlikely, at least in the seriously foreseeable future. It is therefore necessary to find an effective solution within the existing international legal system. As things stand today, Ukraine has very few options to react effectively to Russia’s violations of international law. The close economic and political ties to Russia and Ukraine’s failure to forge a closer association with the West in the form of NATO or EU membership have turned it into a relatively easy target, as was the case with Georgia in 2008 .
Like in the case of NATO’s 1999 intervention in Yugoslavia , the case of Crimea shows that international law is not irrelevant but that, to the contrary, the international community needs clearer rules. As other European states witness independence movements for example in Scotland, Catalonia, the Basque Country, Padania, and Venice, clearer legal rules with regard to the declaration of independence from an existing state and the intervention by other states are needed. As states (which might fear to be at the receiving end of this particular idea at some future date) are unlikely to even want to touch the issue of independence movements, it will be left for customary international law to provide a solution at some point in the future. As things are standing today, it can only be hoped that in the future, independence movements will look more like those in Scotland, Catalonia, or Quebec than those in Crimea, Kosovo, or the Basque Country. Yet, if history is any guide, one might doubt that the development of international law in this regard will happen without further bloodshed.
With the annexation of Crimea, “Moscow is challenging the fundamental international norms on which the European state system relies: territorial integrity and the sanctity of borders” . For many modern states, which are based on the post-1945 international legal order, including even economically powerful states as, for example, Germany , this return to the 19th century  comes as a shock. It is of the interest of the international community as a whole that Russia’s attempt at a return to a darker age in international law is repelled. This has to be done with the tools available under international law. In this context, Russia’s veto power in the Security Council of the United Nations provides a formidable obstacle. In particular, the precedent set in 1950 by the United Nations General Assembly’s “Uniting for Peace” Resolution  might well be argued to have become customary international law. However, were Russia to stabilize the situation in Crimea (and it very much looks like this at this time), there would still be a violation of international law – not necessarily a threat to international peace but “merely” an occupation.
Even if the situation in Crimea would have warranted expression of a desire for self-determination, which could have resulted in Crimea breaking away from Ukraine, it has to be kept in mind that a large number of Ukrainian citizens use the Russian language in everyday life and that there is no oppression of Russian-speakers in Ukraine that would allow secession .
Today, Ukraine and other former Soviet states (minus the Baltic states) are perceived by the Russian leadership not only as neighbors with a long history but as Russia’s sphere of influence which other states ought to respect . If this reminds one of the Monroe doctrine, it is worth remembering that this doctrine was formulated in 1823 . In a sense, Russia seems to have taken a jump back in time to the first half of the 19th century, to a time before the sovereign equality of nations. In contrast to European states’ colonial endeavors beyond the seas in Africa, the Americas, Asia, and the Australian-Pacific area, Russia’s empire has for the greatest part been geographically continuous in the sense that it developed first overland and then to adjacent areas with Russian presences in Hawai’i, Alaska, and California . This might explain the mindset, which places such a claim on locations such as the former Soviet states. After all, Russia and the lands it claims to be in its sphere of influence share both geographic vicinity and a colonial history . From an American perspective, it is difficult to find an example that would parallel Crimea’s significance for Russia: the Philippines and the Pacific Island nations which gained independence from the United States in the 20th century hardly have the same cultural significance for Americans as Crimea has for Russia. Even in a European context, the symbolic importance of Crimea is hard to match elsewhere. From a European perspective, the relationship between Britain and Ireland or between France and Algeria comes to mind or—if one wants to stretch the example a bit by placing emphasis on language as a connecting component—between Germany and Austria. In historical terms, though, Crimea’s political and cultural importance for Russia transcends these examples from other countries. This, however, does not free the Russian Federation from its obligations under international law, in particular, Ukraine’s right to territorial integrity. The fact that the Russian president, Vladimir Putin, referred to the annexation of Crimea as a reaction to the eastward expansion of the North Atlantic Treaty Organization (NATO) in recent years  is indicative of this imperial outlook.
For several years, Russia has claimed a special relationship with the former Soviet states and has made a distinction in its foreign policy between foreign policy in the proper sense of the term and foreign policy in its so called “near abroad,” in other words, the former USSR . In a sense, Putin does not see Ukraine as Russia’s sovereign equal . The same applies to Crimea and the people who live there: President Putin’s view of the Crimean Tatars is particularly telling, as it exhibits an almost traditional colonial worldview of apparent superiority of Russians over Tatars, without excluding them completely from the imperial project . To quote from the speech he gave on the occasion of the annexation of Crimea and Sevastopol:
True, there was a time when Crimean Tatars were treated unfairly, just as a number of other peoples in the USSR. There is only one thing I can say here: millions of people of various ethnicities suffered during those repressions, and primarily Russians. Crimean Tatars returned to their homeland. I believe we should make all the necessary political and legislative decisions to finalize the rehabilitation of Crimean Tatars, restore them in their rights and clear their good name.
In other words, while admitting that injustice was done to the Crimean Tatars in the past, they have no reason to complain because others suffered much more. In particular, in light of the horrors of the Holodomor , these words will sound painful to many Ukrainians. The phrase “clear their good name”  somehow implies a wrongdoing on the part of the Tatars that would require ethnic Russians to forgive them for past acts. Here, the perpetrator becomes the victim and the victims of injustices are somehow to blame for what happened in the past. What Putin refers to as “the rehabilitation of the Crimean Tatars”  is more than an attempt to win support for Russia among the Tatars – the choice of words also indicates a need to include the Tatars in the Russian society. Would Putin consider the Tatars to actually be Russian citizens from the moment the self-proclaimed Republic of Crimea has been annexed by the Russian Federation, this would hardly be necessary. Although one has to be careful not to read too much into this statement, apart from the signature ceremony, there was hardly even the pretense of equality between the Russian Federation and the so-called Republic of Crimea.
Russia might not desire an all-out annexation of Eastern Ukraine (although this can no longer be ruled out), but at the very least the Putin government seems to want to weaken Ukraine so much that Ukrainian membership in NATO or the EU effectively becomes impossible . The Russian government might feel factually encircled by NATO in the West, Islamic nations in the South, and a rising China in the East. Russia has histories of confrontations with all three neighbors, ranging from the Cold War to the Chechen Wars and the Sino-Soviet Border Conflicts of 1969. The terrorist attacks in Volgograd in late 2013 serve as a reminder that the end of the Second Chechen War was not the end of Russia’s conflict with militant Islam . While relations with China appear to be relatively cordial , Russia cannot rule out future Chinese territorial ambitions towards Russia’s Far East, and it is unable to project force in the region to the same extent the world’s most populous country could, should it choose to set its sights on the sparsely populated area to its north. Many in Russia have seen NATO’s eastward expansion as a humiliating defeat by the former Cold War rival .
It comes as no surprise that Russia’s attempt to regain a sense of greatness has found a victim in Ukraine: relations with China are generally good at the moment, the war against Islamist terrorism does not lend itself to a quick and easy victory, and other states which have left Russia’s orbit are members of NATO (like the Baltic states, which were occupied by the USSR for decades and are now members of both NATO and the EU ) or at least the EU (like Finland, which was part of Russia until 1917 ). Taking into account that the central Asian states, which emerged after the dissolution of the USSR, pose almost as little a threat to Moscow’s power as Belarus, this essentially leaves Ukraine, Azerbaijan, Moldova, and Georgia as opponents. The latter has been dealt with by Russia in 2008, as NATO will hardly accept a new member that still has open territorial disputes, although this option is not completely excluded . Despite the admission of Cyprus to the EU, it appears likely that the EU will not offer full membership to Georgia as long as the issues of South Ossetia and Abkhazia are not settled permanently—but on June 27, 2014, the EU signed association agreements with Ukraine, Moldova, and Georgia . This opens the door to potential future accession, although—as the Turkish bid shows—this is a process that can take a very long time . Russian-Azeri relations have to be seen in light of the conflict between Russia’s ally Armenia (which did not ratify a planned association agreement with the EU) and Azerbaijan, as well as in the Turkish support for Azerbaijan. However, as EU-Azeri negotiations continue, it remains to be seen how Russia would react to Azerbaijan moving closer to the EU. The same can be said for Moldova, where separatists in Transnistria have already called for incorporation of their self-declared state, the Pridnestrovian Moldavian Republic, into the Russian Federation . It has been speculated that by fermenting unrest in Eastern and Southern Ukraine, Russia could be laying the groundwork for an invasion and eventual annexation of these parts of Ukraine for the purpose of building a land-bridge connecting Russia proper with Crimea or even Transnistria . Like in the case of the overt 2008 war against Georgia, Russia is now using force (albeit less overtly) to prevent former USSR states from joining the EU and/or NATO. In the case of Armenia, which in 2013 refused to ratify a planned association agreement, political pressure was sufficient for Russia to achieve the desired outcome . In Georgia and Ukraine, armed force has now been used in 2008 and 2014 respectively. In all cases Russia has acted like an imperial power.
This imperial mindset does not see the need for legal justifications in case of an intervention , which is hardly surprising when one takes into account that the periphery is seen neither as sovereign nor as equal. It is not simply that international law is weak per se; rather, it appears that the Russian leadership does not believe that it fully applies in the relationship between the imperial center and the vassal. If this is indeed the rationale driving Moscow, then the annexation of Crimea is not a return to 1954 (the year Crimea was transferred from Russia to the Ukraine ), nor to the Cold War, nor to the early 19th century concept of spheres of influence. Instead, at least in this regard, Russia seems to have gone back to the idea of client republics. This is a step back to 1823, the year of the Monroe doctrine . Russia’s policy towards the states of the “near abroad” is a return to a concept similar of France’s client republics, which were set up in the late 18th and early 19th centuries . It behooves the international community to remember the fate of these entities under the French Empire, which emerged soon thereafter. For the time being, however, it appears as if Eric Posner’s summary of the situation remains correct. On March 1, 2014, he wrote: “1. Russia’s military intervention in Ukraine violates international law. 2. No one is going to do anything about it” . Law is meant to protect those who cannot protect themselves by force against more powerful adversaries. In the case of Crimea, it is not international law that has abandoned Ukraine. It is Russia that is stepping away from modern international law.
The lack of a forceful reaction by Western governments to Russia’s aggressive actions in Ukraine emboldens the Russian leadership . When the West, without recognizing Russian sovereignty over Crimea (which would be illegal ), does not stop Putin, no favor is done to Russia either. Instead of integrating Russia into the European unification project, Putin is resurrecting not merely the Soviet Union but continues Russia’s imperial history, of which the Soviet Union and the Cold War dominance over Eastern Europe were merely one or two episodes.
But if no meaningful response is found, the international community has abandoned international law in the face of Russian power. In the long run, Russia, too, will benefit if the international community takes a stand and defends international law in general and the sovereign equality of nations in particular because it will enable Russia to remain an active player in a globalized world. Hiding behind the borders of its empire and living on the basis of an economy which only includes the empire and the vassals already did not work during the time of the Warsaw Pact. In today’s connected and globalized planetary economy, it would appear outright impossible. Russia now has to choose between freedom and empire.
From the perspective of international law, such an imperial approach has several consequences beyond the legality of Russia’s actions with regard to Ukraine. In the current crisis between Russia and Ukraine, the rule of law is “of direct relevance” , indeed of utmost importance. It appears that the Russian leadership sees Russia as an empire. If one no longer believes in the concept of the sovereign equality of nations, it is only logical that one believes that different rules apply to the powerful. In so far, from the Russian perspective, the situation is not much different from the colonial time when great powers shared the world between them.
In recent decades, wars between states have become rare and it can be argued that the codification of the concept of sovereign equality of states in the UN Charter  and its widespread acceptance by states have had a significant pacifying function in this regard. Russia’s treatment of both Georgia and Ukraine indicates a willingness to abandon the consensus of the sovereign equality of nations. It has to be assumed that the actions of the Russian leadership are calculated and rational. In fact, the events in Georgia and Ukraine make the case for proponents of the rational choice theory of international law: “Rational choice folks think that international law works best (in fact, works at all only) when states have a rational self-interest to cooperate around certain legal norms and institutions. But where states no longer have such a rational self-interest, states will depart from those legal norms” .
It appears that the current Russian leadership has a greater interest in shoring up support at home and in restoring Russia to what is perceived as greatness than it has in remaining a reliable member of the international community. This does not mean that Russia will isolate itself. In fact, like during the Cold War, Russia is actively cooperating with like-minded states, for example through the Shanghai Cooperation Organization and the Eurasian Union . The latter has the potential to give shape to Russia’s imperial ambitions while the former opens the door for cooperation with China. Since the loss of its status as a superpower at the end of the Cold War, the idea of a multipolar world has been around in Russia. Yet, Russia cannot turn back time and pretend that the last twenty-five years have not happened. Any dreams of a world shared by imperial powers will conflict with a reality, which has seen individual empowerment on an unprecedented scale thanks to globalization and technological progress. At the same time, European integration has advanced to a degree that should give Russian leaders pause. Pro-European protests were the beginning of the protests of the former regime in Kyiv. Many (in particular young) people in Ukraine see their future with the European Union rather than with Russia. The same could apply to Russia. Russia’s choice therefore is also one of facing the challenges and opportunities of the future alone or as part of Europe.
The Russian people deserve better than an un-free empire, isolated from freedom and progress. Being part of Europe does not mean that Russians have to give up values that are perceived as typically Russian. President Putin seems to fear freedom because true freedom and democracy would mean that he would not rule Russia forever. Everyone under Russia’s jurisdiction has fundamental human rights and other European states have an obligation to defend human rights. In so far, Ukraine’s inter-state complaint against Russia before the European Court of Human Rights is laudable as it not only serves Ukraine’s interests but the interests of European society at large.
The author thanks Vanessa M. Frese, University of Fribourg.
*Associate Professor for Fundamental and Human Rights, University of Lapland, Rovaniemi, Finland; admitted to the bar in Germany (Rechtsanwalt); Doctor in Social Sciences (Law), Vytautas Magnus University, Kaunas, Lithuania. Email: email@example.com.
. Sevastopol has long had a special status under first Soviet and later Ukrainian law and was not part of the Autonomous Republic of Crimea within Ukraine; the Autonomous Republic of Crimea and the city of Sevastopol are claimed to have formed a new, independent state—the Republic of Crimea. Vladimir Putin, President of Russia, Address by President of the Russian Federation (Mar. 18, 2014), http://eng.kremlin.ru/news/6889 (President Putin refers to the Autonomous Republic of Crimea and the city of Sevastopol as “the Republic of Crimea and Sevastopol”). After a referendum, Russia has annexed this allegedly independent state, and the Russian Federation now considers the Autonomous Republic of Crimea to be a federal subject of the Russian Federation (the Republic of Crimea) and Sevastopol to be a federal city. René Värk, The Incorporation of Crimea into Russia: Legal Perspective, Diplomaatia (Apr. 2014), http://www.diplomaatia.ee/en/article/krimmi-liitmine-venemaaga-oiguslik-vaatenurk/.
. Putin, supra note 1. The same claim was also made by the separatists in the self-declared Republic of Crimea. See Christian Marxsen, Crimea’s Declaration of Independence, EJIL: Talk! (Mar. 18, 2014), http://www.ejiltalk.org/crimeas-declaration-of-independence/; Putin Compares Kosovo’s 2008 Independence to Russia’s Annexation of Crimea; Others Disagree, FOX News.com (Mar. 19, 2014) http://www.foxnews.com/world/2014/03/19/putin-compares-kosovo-2008-independence-to-russia-annexation-crimea-others/; Crimea is not Kosovo, The Baltic Times (Mar. 24, 2014), http://www.baltictimes.com/news/articles/34610/#.VEsE-IvF94V.
. Patrick Goodenough, Crimea Vote: Putin Cites Kosovo ‘Precedent’, CNS News.com (Mar. 15, 2014), http://www.cnsnews.com/news/article/patrick-goodenough/crimea-vote-putin-cites-kosovo-precedent; Bojana Barlovac, Putin Says Kosovo Precedent Justifies Crimea Secession, Balkan Insight (Mar. 18, 2014), http://www.balkaninsight.com/en/article/crimea-secession-just-like-kosovo-putin; see also Marko Milanovic, Crimea, Kosovo, Hobgoblins and Hypocrisy, EJIL: Talk! (Mar. 20, 2014), http://www.ejiltalk.org/crimea-kosovo-hobgoblins-and-hypocrisy/ (Milanovic considers the cases of Kosovo and Crimea to be similar enough as to be legally relevant: “even if Kosovo and Crimea are legally distinguishable, they are still close enough. The West’s position on Crimea is undeniably undermined by their previous stance regarding Kosovo, and they can only blame themselves for that.” Milanovic also cites the speech by the Vladimir Putin cited in note 1).
. Robert Marquand, Crimea Vote: Five Reasons Why Putin’s Ukraine Case Falls Apart, The Christian Science Monitor (Mar. 15, 2014), http://www.csmonitor.com/World/Security-Watch/2014/0315/Crimea-vote-Five-reasons-why-Putin-s-Ukraine-case-falls-apart-video.
. Paul Roderick Gregory, Enough of Moral Equivalence on Russia’s Invasion of Ukraine Already!, Forbes (Mar. 13, 2014, 5:32 PM), http://www.forbes.com/sites/paulroderickgregory/2014/03/13/enough-of-moral-equivalence-on-russias-invasion-of-ukraine-already/.
. See Chris Borgen, Kosovo, South Ossetia, and Crimea: The Legal Rhetoric of Intervention, Recognition, and Annexation, Opinio Juris (Apr. 2, 2014, 8:04 PM), http://opiniojuris.org/2014/04/02/kosovo-south-ossetia-crimea-legal-rhetoric-intervention-recognition-annexation/ (comparing the situation in Crimea with the situation in Kosovo in 1999).
. Terry Atlas, Ukraine Gave Up Nuclear Arms in 1994 Deal Russia Flouts, Bloomberg (Mar. 5, 2014, 1:34 PM), http://www.bloomberg.com/news/2014-03-05/ukraine-gave-up-nuclear-arms-in-1994-deal-russia-flouts.html; see also Joshua Keating, So Much for the Budapest Memorandum, Slate, (Mar. 19, 2014, 12:53 PM), http://www.slate.com/blogs/the_world_/2014/03/19/the_budapest_memorandum_in_1994_russia_agreed_to_respect_ukraine_s_borders.html.
. “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations.” U.N. Charter art. 2, para. 4, https://treaties.un.org/doc/Publication/CTC/uncharter.pdf; see also Michael Wood, Territorial Integrity, Encyclopedia Princetoniensis: The Princeton Encyclopedia of Self-Determination, http://pesd.princeton.edu/?q=node/271 (last accessed Jan. 2, 2015).
. Bob Reinalda, Non-State Actors in the International System of States, Ashgate Research Companion to Non-State Actors (Bob Reinalda ed., 2011) available at https://www.ashgate.com/pdf/SamplePages/Ashgate_Research_Companion_to_Non_State_Actors_Intro.pdf.
. Bill Chappell & Mark Memmott, Putin Says Those Aren’t Russian Armed Forces in Crimea, NPR Online (Mar. 4, 2014, 7:05 AM), http://www.npr.org/blogs/thetwo-way/2014/03/04/285653335/putin-says-those-arent-russian-forces-in-crimea.
. Gregory H. Fox, Ukraine Insta-Symposium: Intervention in the Ukraine by Invitation, Opinio Juris (Mar. 10, 2014, 11:00 AM), http://opiniojuris.org/2014/03/10/ukraine-insta-symposium-intervention-ukraine-invitation/.
. See S.C. Pres. Statement 1998/5, U.N. Doc. S/PRST/1998/5 (Feb. 26, 1998), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PRST/1998/5 (discussing UN approval of the ECOWAS action in Sierra Leone).
. See Matthew Heywood-Cunliffe, What Europe Can Do for Crimea, A Resonance of International Community About the Situation in Crimea, One Europe (Mar. 30, 2014), http://one-europe.info/losingthebattlewhycrimeaisgoneforgood; Henry D’Souza, The Age of Neo-Imperialism: Western Hyprocrisy in Ukraine and Capitulation in Palestine, Al-Jazeerah: Cross-Cultural Understanding (Apr. 21, 2014), http://www.ccun.org/Opinion%20Editorials/2014/April/21%20o/The%20Age%20of%20Neo-Imperialism,%20Western%20Hypocrisy%20in%20Ukraine%20and%20Capitulation%20in%20Palestine%20By%20Henry%20D’%20Souza.htm; John Lloyd, Russia’s Imperialism vs. Globalization, Reuters (Mar. 21, 2014), http://blogs.reuters.com/john-lloyd/2014/03/21/russias-imperialism-vs-globalization/.
. Angela Stent, Putin’s Ukrainian endgame and why the West may have a hard time stopping him, CNN (Mar. 4, 2014), http://edition.cnn.com/2014/03/03/opinion/stent-putin-ukraine-russia-endgame/.
. An ally of Putin and the speaker of Russia’s upper chamber, Valentina Matviyenko, stated in March that Crimea would “become an absolutely equal subject of the Russian Federation.” Henry Chu & Sergei L. Loiko, Tension Escalates as Russia Presses Claims for Ukraine’s Crimea, Los Angeles Times (Mar. 7, 2014) (emphasis added), http://articles.latimes.com/2014/mar/07/world/la-fg-wn-russia-ukraine-crimea-referendum-20140307.
. Stent, supra note 29; see also Timothy Snyder, Putins Projekt, Frankfurter Allgemeine Zeitung (Apr. 13, 2014), http://www.faz.net/aktuell/politik/die-gegenwart/ukraine-putins-projekt-12893812.html?printPagedArticle=true#pageIndex_2/ (discussing the historic relationship between Ukraine and Russia against the backdrop of the current conflict).
. Stefan Kirchner, Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System?, 5 German L. Rev. 47, 50 n. 23 (2004), available at http://www.germanlawjournal.com/pdfs/Vol05No01/PDF_Vol_05_No_01_47-64_European_Kirchner.pdf.
. Eric Lohr, Russia and the Crimean Tatars: The Burdens and Challenges of History, Religion & Politics (May 28, 2014), http://religionandpolitics.org/2014/05/28/russia-and-the-crimean-tatars/.
. Noah Snider, Mindful of Past, Most Tatars Fear a Russian Future, N.Y. Times (Mar. 13, 2014), http://www.nytimes.com/2014/03/14/world/europe/crimean-tatars-on-guard-against-joining-russia.html?_r=0.
. Kristen Hausler & Robert McCorquodale, Ukraine Insta-Symposium: Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law, Opinio Juris (Mar. 10, 2014), http://opiniojuris.org/2014/03/10/ukraine-insta-symposium-crimea-ukraine-russia-self-determination-intervention-international-law/.
. Press Release, Ukraine’s Crimea Envoy EU to Move Beyond Expressing Solidarity to Action, European Parliament (Mar. 3, 2014), http://www.europarl.europa.eu/news/en/news-room/content/20140303IPR37432/html/Ukraine’s-Crimea-envoy-asks-EU-to-move-beyond-expressing-solidarity-to-action.
. Hajrudin Somun, Five Reasons Why Crimea Cannot be Compared with Kosovo, Today’s Zaman (Apr. 13, 2014,) http://www.todayszaman.com/news-344554-five-reasons-why-crimea-cannot-be-compared-with-kosovo-by-hajrudin-somun-.html.
. See Anastasiia Tatarenko, The Legal Status and Modern History of Crimean Autonomy, Verfassungsblog.de: On Matters Constitutional (Apr. 2, 2013), http://www.verfassungsblog.de/en/the-legal-status-and-modern-history-of-crimean-autonomy/#.U9QJhMaIKQo.
. See generally, Michael Kraus et al., Irreconcilable Differences?: Explaining Czechoslovakia’s Dissolution, (Michael Kraus & Allison Stanger eds. & trans. 2000) (discussing the dissolution of the Czech and Slovak Federal Republic).
. Contrary to the dissolution of Czechoslovakia, the unilateral claims of independence of states such as Slovenia, Kosovo, and Crimea have just that in common, the unilateral character of their claims.
. Cf. Alison K. Eggers, When is a State a State? The Case for Recognition of Somaliland, 30 B.C. Int’l & Comp. L. Rev. 211, 214-15 (2007), available at http://lawdigitalcommons.bc.edu/iclr/vol30/iss1/12 (Somaliland has yet to be recognized by other states and is not likely to be considered “successful” until it is).
. See Nurullah Yamili, What is Meant by State Recognition in International Law?, Ministry of Justice: Turkey, 5 (2009), available at http://www.justice.gov.tr/e-journal/pdf/LW7081.pdf; see also Ian Brownlie, Principles of Public International Law 86 (7th ed. 2008).
. The so-called “Turkish Republic of Northern Cyprus” is only recognized by Turkey, while all other states only recognize the Republic of Cyprus. See Alexander H. Berlin, Recognition As A Sanction: Using International Recognition Of New States To Deter, Punish, And Contain Bad Actors, 31 U. Pa. J. Int’l L. 531, 551-52 (2009).
. None of the entities mentioned above have been internationally recognized; therefore, they do not fulfill the requirement of an efficient government and, thus, cannot be states in the meaning of international law. See Christopher J. Borgen, Introductory Note to Kosovo’s Declaration of Independence, 47 I.L.M 461, 464 (2008), available at http://www.asil.org/insights/volume/12/issue/2/kosovos-declaration-independence-self-determination-secession-and.
. See Chris Borgen, From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities, Opinio Juris (Mar. 18, 2014, 11:34 AM), http://opiniojuris.org/2014/03/18/intervention-recognition-russia-crimea-arguments-recognizing-secessionist-entities/ (discussing the recognition of so called “Republic of Crimea”).
. See Jan Christoph Nemitz, Kollektive Nichtanerkennug Illegar Staaten. Grundlagen und Folgen einer International Koordinierten Sanktion, Dargestellet am Beispiel der Turkischen Republik Nord-ZypernI, 6 Chinese J. Int’l L. 3, 784-85 (2007) (book review), http://chinesejil.oxfordjournals.org/content/6/3/784.full.pdf+html?sid=4b122a91-4d48-4bcf-b2f3-d3474c038c04 (stating the Turkish Republic of Northern Cyprus is not collectively recognized and defining collective non-recognition).
. Anna Dolidez, Ukraine Insta-Symposium: Potential Non-recognition of Crimea, Opinio Juris (Mar. 17, 2014, 11:29 PM), http://opiniojuris.org/2014/03/17/ukraine-insta-symposium-potential-non-recognition-crimea/.
. As opposed to creating a new state or enjoying independence for the first time. See Roland Rich, Recognition of States: The Collapse of Yukoslavia and the Soviet Union, 4 Eur. J. Int’l L. 36, 37, 47 (1993), available at http://www.ejil.org/pdfs/4/1/1207.pdf.
. The three Baltic states, Estonia, Latvia, and Lithuania should not be considered to be former Soviet states as they had merely been occupied by the Soviet Union, temporarily losing their independence but not their original identity.
. See RR Donnelly, Choosing Scotland’s Future 35, 44 (Scottish Executive 2007) available at http://www.scotland.gov.uk/Resource/Doc/194791/0052321.pdf (an overview of the Scottish referendum for independence of 2014); see generally Scotland’s Future (Scottish Government 2013), available at http://www.scotland.gov.uk/Resource/0043/00439021.pdf.
. President of Russia Dmitry Medvedev, Statement on Major Issues on South Ossetia and Abkhazia (Aug. 26, 2008), http://archive.kremlin.ru/eng/speeches/2008/08/26/1543_type82912_205752.shtml (formally recognizing South Ossetia and Abkhazia).
. See June Vidmar, Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo, EJIL: Talk! (Mar. 20, 2014), http://www.ejiltalk.org/crimeas-referendum-and-secession-why-it-resembles-northern-cyprus-more-than-kosovo/ (concluding that the situation in Crimea is comparable to the situation in Northern Cyprus).
. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403 (July 22), available at http://www.icj-cij.org/docket/files/141/15987.pdf.
. While such persecution is allegedly feared by Moscow, no evidence has been presented that the Russian-speaking population in Crimea would be at any serious risk from the new Ukrainian government. Cf. Värk, supra note 1.
. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 13 (July 9), available at http://www.icj-cij.org/docket/files/131/1677.pdf.
. Alison Smale, Twin Shocks Shake Foundation of German Power, N.Y. Times (Apr. 18, 2014), http://www.nytimes.com/2014/04/19/world/europe/twin-shocks-shake-roots-of-german-power.html?src=rechp.
. Cf. Steven Erlanger, Russian Aggression Puts NATO in Spotlight, N.Y. Times (Mar. 18, 2014), http://www.nytimes.com/2014/03/19/world/europe/russias-aggression-in-crimea-brings-nato-into-renewed-focus.html?_r=0.
. Alissa de Carbonnel, Putin Says Annexation of Crimea Partly a Response to NATO Enlargement, Reuters (Apr. 17, 2014, 3:12 PM), http://www.reuters.com/article/2014/04/17/us-russia-putin-nato-idUSBREA3G22A20140417.
. Cf. Russia: Ethnic Relations and Russia’s “Near-Abroad”, Encyclopedia Britannica Online, 78, http://www.britannica.com/EBchecked/topic/513251/Russia/274475/Ethnic-relations-and-Russias-near-abroad (last updated Oct. 10, 2014).
. The term is Ukrainian for “death by forced starvation” and refers to the artificial famine imposed by Stalin’s regime. See Holodomor Facts and History, Holodomor, http://www.holodomorct.org/history.html (last visited Jan. 2, 2015).
. Andrew Katz, Group Threatens Olympics in Claiming Responsibility for Russia Bombings, Time (Jan. 20, 2014), http://world.time.com/2014/01/20/group-threatens-olympics-in-claiming-responsibility-for-russia-bombings/.
. Both Russia and China are members of the Shanghai Cooperation Organization and both states have announced an interest in increasing military cooperation. Shannon Tiezzi, China, Russia Seek Expanded Defense Cooperation, The Diplomat (Nov. 19, 2014), http://thediplomat.com/2014/11/china-russia-seek-expanded-defense-cooperation/.
. Anne Applebaum, The myth of Russian humiliation, Washington Post (Oct. 17, 2014), http://www.washingtonpost.com/opinions/anne-applebaum-nato-pays-a-heavy-price-for-giving-russia-too-much-credita-true-achievement-under-threat/2014/10/17/5b3a6f2a-5617-11e4-809b-8cc0a295c773_story.html.
. NATO Member Countries, North Atlantic Treaty Organization, http://www.nato.int/cps/en/natohq/nato_countries.htm (last updated Mar. 27, 2014); EU Member Countries, European Union, http://europa.eu/about-eu/countries/member-countries/ (last visited Jan. 2, 2015).
. The EU-Ukraine Association Agreement was at the roots of the initial protests against the former Ukrainian Government. See generally Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, 2014 O.J. (L 161), 3, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2014:161:FULL&from=EN.
. Eberhard Rhein, EU must prepare for membership of Moldova, Ukraine and Georgia, EurActiv (July 3, 2014), http://www.euractiv.com/sections/europes-east/eu-must-prepare-membership-moldova-ukraine-and-georgia-303273.
. Peter Leonard, Russia’s Latest Move In Ukraine Could Be A Potential Land-Link To Crimea, Business Insider (Aug. 27, 2014), http://www.businessinsider.com/russia-ukraine-battle-bridge-crimea-2014-8.
. See Adam Taylor, What History can tell us About Russia, Crimea and Vladimir Putin, Wash. Post (Mar. 18, 2014), http://www.washingtonpost.com/blogs/worldviews/wp/2014/03/18/what-history-can-tell-us-about-russia-crimea-and-vladimir-putin/.
. See French revolutionary and Napoleonic Wars, Encyclopedia Britannica Online, http://www.britannica.com/EBchecked/topic/219456/French-revolutionary-and-Napoleonic-wars (last updated July 15, 2014).
. Eric Posner, Russia’s Military Intervention in Ukraine: International Law Implications, EricPosner.com (Mar. 1, 2014), http://ericposner.com/russias-military-intervention-in-ukraine-international-law-implications/.
. See Volker Zastrow, Alarm, Frankfurter Allgemeine (Apr. 13, 2014), http://www.faz.net/aktuell/politik/ausland/kommentar-lieben-und-verstehen-wir-deutsche-die-russen-wohl-kaum-12892906.html.
. It appears that this has been Putin’s aim for the past fifteen years. See Svetlana Alexlijewitsch, Putins neues Russland: Wer nicht jubelt, ist ein Volksfeind, Frankfurter Allgemeine (Apr. 15, 2014), http://www.faz.net/aktuell/feuilleton/debatten/svetlana-alexijewitsch-ueber-putins-russland-12895308.html?printPagedArticle=true#pageIndex_2; see also Steven Lee Myers & Ellen Barry, Putin Reclaims Crimea for Russia and Bitterly Denounces the West, N.Y. Times, (Mar. 18, 2014), http://www.nytimes.com/2014/03/19/world/europe/ukraine.html?_r=0.
. Julian Ku, Russia Reminds the World (and International Lawyers) of the Limits of International Law, Opinio Juris (Mar. 2, 2014), http://opiniojuris.org/2014/03/02/ukraine-russia-international-law-governing-use-force/.
“This sacred Privilege is so essential to free Government, that the Security of Property; and the Freedom of Speech, always go together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own .”
Across the United States and dozens of other “Western” countries, the concept of freedom of expression is considered a human right. More than that, it is deemed a fundamental human right. Numerous treaties and national constitutions protect the right to express oneself freely without criminal, physical, or sociological repercussions. Nevertheless, there exists a disconnect between how Western nations understand and protect freedom of expression and how predominantly-Muslim nations understand and protect freedom of expression. Many, if not all, Muslim countries place restrictions on freedom of speech that are contrary to internationally-mandated norms. The question is, why? Is it because of Islam itself? Is it because of these countries’ histories and governments? Is it because of Middle Eastern or Islamic culture?
The answer is not so simple. A close look at a few Muslim nations offers strong evidence that history, culture, and religion all have an impact on these non-Western, majority-Muslim societies as they try to determine whether and to what extent freedom of speech should be recognized and protected. This paper will analyze the development of freedom of expression in the Western-dominated international law realm as we know it today in comparison to the development (or lack thereof) of that same freedom in the predominantly-Muslim states of Turkey, Saudi Arabia, and Jordan.
The selection of these three particular states was a wholly deliberate one. Not only does Islam’s influence on the government differ in every state, but so do the laws granting and regulating freedom of expression. Turkey, Saudi Arabia, and Jordan share the same predominant religion, but their government structures, cultural heritage, languages, and overall view of human rights are across the board. The rationale for using Turkey as a case study is that it is technically a secular state, but it still has a number of constitutionally-mandated exceptions to its protection of expression . Saudi Arabia is on the other end of the spectrum. The Basic Law of Saudi Arabia names the Qur’an as the nation’s official constitution , but fails to protect expression in any way. Jordan falls in the middle of the other two states: its Constitution contains a provision protecting the right of free expression like Turkey, but it infers a reservation of right to suppress speech that is insulting to Islam or the monarchy . Thus, an in-depth look at these three states, alongside Islam’s teachings on speech, will offer a more accurate and thorough analysis when comparing the Muslim world’s development of freedom of expression to the Western world’s.
As previously mentioned, there are several international treaties protecting an individual’s right to freedom of expression. For purposes of this article, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) set forth the basic principles regarding speech that are universally accepted. Scholars have deemed these two documents as evidence of a universal belief that the protection of human dignity is of utmost importance and should be protected “. . .by a body of law that stands above the law of individual states” . The UDHR in particular has gone from a mere United Nations’ General Assembly resolution to part of customary international law . Thus, despite the fact that some countries, such as Saudi Arabia, are not UDHR signatories or refuse to acknowledge the principles it sets forth, they are still bound by it.
Both the UDHR and the ICCPR have individual articles protecting freedom of expression. Article 19 of the UDHR stipulates that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” . Article 19 of the ICCPR essentially guarantees the same thing, although it notes that expression is protected whether it is in the form of oral communication, writing in print, art, or any other medium of expression . Interestingly, the ICCPR article also gives a brief list of certain state restrictions of freedom of expression that are acceptable under international law, including respecting others’ reputation and protecting national security, public order, public health, or public morals . Both Jordan and Turkey signed and ratified the ICCPR without any reservations – meaning they agreed to comply with Article 19 . Saudi Arabia, on the other hand, never signed the ICCPR .
For several centuries, and particularly over the past 200 years, freedom of expression has gone through a constitutional, philosophical, and political evolution in the West . While there is still dispute over the appropriate extent of freedom of expression, Western societies have come to the agreement that expression is a fundamental right at its core. Since the West prizes individual autonomy, it is easy for the Western population to accept that a person has an inherent right to express themselves freely. This belief stems from the Western understanding that the international system rests on a set of shared universal values that are more important than the interests of the government .
Despite the current emphasis on human rights, Western nations were not exactly quick to arrive to the “individuals have fundamental rights” party. It was a process that began with philosophers dating back to Plato and Euripedes , and was heralded by ancient Greek politicians. According to Pericles, freedom of speech was what truly set Athens apart from Sparta . However, it was not until the 1600s in England when political dissidents actually began demanding more speech, press, and petition rights .
The concept of freedom of speech in 17th century England stemmed from the idea that political speech deserved particular protection . The emergence of freedom of political speech was fueled by two separate movements: first, the push toward parliamentary privilege and second, the commoners’ push toward the rights to print and petition . Members of parliament realized that in order to responsibly create effective laws, they needed to be able to freely engage in discussion – even discussion that was highly critical of the issue at hand . However, Parliament often butted heads with the monarch over parliamentary privilege . While the privilege had become an accepted practice within the chambers of the House of Commons, King James was quick to inform them that he held the key to the “privilege” and could revoke it at any time .
The commoners’ demand for freedom of speech only helped strengthen politicians’ call for their own freedom of speech on the floors of Parliament. Printers, publishers and authors were desperate to disseminate information without government interference. At the time, religious and political members of the English hierarchy saw the printing press especially threatening to their power . The British monarchy was left rather vulnerable to public criticism as its members left the Catholic Church in favor of the Church of England . In order to curtail dissidence or uprisings, the government required authors to obtain licenses before publishing anything from a book to a newspaper .
A pro-democracy political group known as the Levellers was well aware of the power of the printing press and – rather unsuccessfully – championed the right to petition and for freedom of speech soon after the battle over parliamentary privilege . After the Levellers quickly fell apart in 1650, two men published a series of letters and essays on liberty under the pseudonym of the ancient Roman politician Cato . “Cato’s” works echo the ideas that the Levellers had set in motion several years before: government officials are trustees of the public, and therefore, the public has a right to know and criticize what officials do . The essays gained quite a bit of traction and helped promulgate the significant changes in British government in the latter half of the 17th century . Parliament was finally able to secure parliamentary privilege with the enactment of the English Bill of Rights in 1689, which said “[t]hat the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament” .
Ordinary citizens of England sought their own right to freedom of speech in the following decades, but continued to face resistance and punishment from the British government and monarchy . It was not until the American Revolution and the ratification of the United States Bill of Rights that a government recognized that every citizen (theoretically) had a right to freedom of speech and petition .
One of the reasons why Muslim nations, as well as non-majority Muslim nations in Africa, are skeptical of holding out freedom of speech as a fundamental right is because they had little to no influence on the human rights documents that govern international law today . Western nations dominated the San Francisco Conference, where the United Nations was technically created . Plus, at the time the UDHR was created, many Muslim and African nations were still colonies of the same European powers that were leading the charge for universal freedoms in the United Nations . Thus, there was a disconnect between what the West was practicing (i.e., disrespect for human rights such as self-determination) and what it was preaching (i.e., all humans are born with certain inherent rights – including self-determination). For Muslim and African countries, this contradiction serves as proof that universal rights did not – and still do not – exist .
Even though most African and Muslim states ratified the Universal Declaration after they gained their independence, they were still at a disadvantage because “those emerging African and Asian states were not only late comers to an already established concept and framework, but also lacked the human and material resources to make a significant original contribution” . Furthermore, these newly independent states have continued to cast a wary eye on the documents and human rights ideals that their former colonizers have championed in the past half-century . To the former colonies, the “universality project” is merely the West’s ploy to establish cultural imperialism, sustain the rest of the world’s dependency on developed nations, and trample their right to self-determination .
Scholar Samuel Huntington suggested that the West and the Islamic world’s disagreement over whether universal rights are truly Western rights is actually part of a larger cultural conflict . This leads us to how Islamic culture does not quite fit into the Western puzzle of universal rights.
So even if Muslim countries did not have a hand in creating freedom of expression human rights documents, but they ratified them anyway, why do they still have such varying views on freedom of speech and implementation of human rights? The answer lies in cultural relativism and the teachings of Islam itself.
Opponents of universal rights often promulgate the concept of cultural relativism as the reason for their hesitation to adopt those rights, and the theory may indeed offer insight into why Muslim nations are hesitant to accept freedom of expression as a fundamental right the same way that Western states accept it. At its core, cultural relativism argues that there is no such thing as universal human rights because different cultures have different outlooks on morality, truth, and inherent rights . In other words, each culture prioritizes values differently, which makes it impossible to determine which rights are fundamental to each human being . This makes cultural relativism a counterargument to strict interpretation and implementation of international human rights laws, such as the UDHR and the ICCPR . Those two documents epitomize the idea that no matter how diverse the world is, all mankind believes that human dignity ought to be preserved and the law that protects human dignity should supersede any national laws on the same matter .
Under the Western concept of human rights, the rights of the individual – not necessarily the rights of the community – reign supreme . The philosophical rationale behind this viewpoint is the belief that there are certain fundamental values that rise above the values of the nation-state as a whole . The West assumes that the international norms it has created are not only neutral, but can also be reconciled with Islamic Law . The problem with this assumption is that the individual values that the West prioritizes the most are the same ones that the rest of the world prioritizes the least . This does not work because Islamic culture, in contrast to Western culture, places a greater emphasis on community interests than individual interests . Muslim scholars have explained that Islam focuses on “uniting mankind and cultivating love and understanding among people” .
When proponents of universal rights ignore the fact that the concept of universal rights was a predominantly-Western creation, they make it easier for non-Western societies to dismiss their argument . Cultural relativists can then draw attention to the fact that the West is ignoring its colonial past, trying to eliminate the sense of community in non-Western states, and still attempting to dominate the rest of the world any way it can. This then makes it easier for cultural relativists to persuade non-Western peoples that the Western origin of these alleged fundamental human rights are not reconcilable with non-Western culture . Cultural relativists can instead argue that the idea of universal rights is a Western attempt to disrupt and weaken some cultures’ emphasis on community and harmony.
Cultural relativism can also make it troublesome to implement rights such as freedom of expression in Muslim countries. History shows that imposing certain rights – even rights that most people have agreed on as fundamental – is easier said than done. While international declarations spell out the right to freedom of expression, there are no documents that explain how to actually successfully implement or enforce that right . Attempts to democratize the media in places such as Kosovo and Bosnia are prime examples of this . Thus, while the UDHR and ICCPR promise to ensure that every person has the freedom to express themselves, they provide no means of actually guaranteeing that the aforementioned freedom is granted: “[w]ithout enforcement, the impressive guarantees made by human rights instruments lose much of their force” . So, as far as countries like Turkey and Jordan are concerned, there is no way for them to be held accountable for failure to uphold the promises of the UDHR and ICCPR – even though they have ratified both documents .
Islam’s legal heritage does not have exact equivalents of modern international human rights . A look into the sources of religious guidance in Islam, as well as the culture that has developed around it, offer some insight into why this is. It is noteworthy that the literal definition of the word “Islam” is “submission” . Muslims across the world have adopted different interpretations of Islam, but one thing that has remained constant across various Muslim populations is a focus on Islamic law, supplied by the Qur’an and the practices and sayings of the Holy Prophet – which emphasize the importance of community . These views replace other cultures’ emphases on “corporate identity,” such as the family, tribe, and nation . “It is especially intended to preclude any sense of a personal, autonomous identity” .
This is not to say that there is no place for freedom of speech in Islam. On the contrary, Islam recognizes an individual’s right to freedom of expression . However, as Dalia Mogahed from the Gallup Center of Muslim Studies explained in a recent interview with National Public Radio, there seems to be a disconnect between the actual teachings of Islam regarding freedom of expression and how Muslims actually view the right to freedom of speech .
First, the Qur’an is the source of Islamic law, and Muslims consider it to be the word of God. The Qur’an stipulates that people are only supposed to speak truthfully, speak “in a manner that is best,” speak kindly, and avoid using inappropriate speech . Muslim scholars have explained Islam “promotes free speech when our intention is to serve a good purpose, promote peace, bring people closer to God and unite mankind” . The rationale behind these principles is to create a community free of discord where people are guaranteed freedom of speech, but are also ensured fairness, the right to disagree with one another, and justice . Speech is supposed to have a positive impact on people and create peace rather than create conflict. Nevertheless, “Islam does not prescribe any worldly punishment for unseemly speech. So people who insult should not be persecuted,”  contrary to the numerous laws that Muslim countries have been prone to enact.
Second, Muslims across Africa and Asia do not always understand freedom of speech in black and white terms. The one similarity that seems to exist across Muslim populations is that, in principle, freedom of speech should exist as a right . However, in practice in the Middle East, “there is this concept of protecting not only individuals, but ideas like religion” . To Middle Easterners, freedom of expression is the ability to defend Islam’s dignity, as well as the ability to criticize the government . Most Muslims in the Middle East believe that freedom of expression relates to both political speech and blasphemy, but really only protects political speech . But in instances when there is a conflict between a human right, such as free speech, and an Islamic principle, some interpretations of Islam will argue that the latter should be respected, even if it is detrimental to the former . This approach is directly opposite to the Western approach. Current international human rights theory does not allow for derogation from human rights obligations even when human rights law conflicts with religious law . Despite this, Islam’s hold on government seems to have weakened, according to some scholars . This may be due to the fact that Islam can be interpreted in different ways. It may also be because some Islamic states have tried to reduce the influence of Islamic fundamentalists by taking away powers previously belonging to religious leaders and giving them back to the state .
In order to better understand the free speech laws and attitude toward human rights in the Republic of Turkey, it is worth looking at some of its history and demographic statistics. Turkey has gone through several political reformations since its modern formation as a state in 1923 . As recently as 1997, the citizens overthrew their Islamic government in favor of a more secular and democratic one . While the nation has attempted to maintain a stable democracy for decades, it has often fallen victim to coups and military takeovers . The purpose of the country’s political transformation in the 1920s was to establish a secular state, and since then, the military has often taken it upon itself to enforce democratic principles . It is currently a republican parliamentary democracy . Approximately three-fourths of its 80 million population fall into the “Turkish” ethnic category, stemming back to the Ottoman Empire . Of the remaining twenty-five percent of the population, nearly twenty percent are Kurdish, and the rest are other minorities . Almost the entire population is Muslim, while a miniscule 0.2 percent of the population identify as Christian or Jewish .
Turkey is often described as a state in “Eurasia” – it is neither entirely Asian nor entirely European . In order to understand the gray-continental area that Turkey falls in, one need look no further than the fact that Turkey’s attempts to join the European Union (EU) have been stalled for decades. The nation has been trying to gain full membership to the EU since 1987, but it was not until 2002 that it was even given the go-ahead to begin accession talks . More than ten years later, it has yet to become a full-fledged member. Observers have suggested that the hold up to accession may stem from Turkey’s less than stellar human rights record . It has gone through periods of martial law and consistent ethnic discrimination . Its constitution grants freedoms spelled out in documents such as the European Convention of Human Rights, but then limits those grants through clauses such as “publication[s] shall not be made in any language prohibited by law” . Ethnic tensions between the Turks and Kurds have led to the Turkish government targeting the Kurds’ right to free speech . Tracing back to Islam’s value on community, the Turkish people seem to be more concerned with maintaining Turkish community and identity than the speech rights of Kurds – so much so that they are willing to eliminate traces of the Kurdish culture .
However, Turkey’s shutout from the EU has led to a vicious cycle: the more obvious it is that the EU is not going to grant it membership, the more freely Turkey violates human rights, particularly freedom of speech . This suggests that respect for human rights in Turkey stems more out of an obligation to adhere to European (which are arguably Western) standards than out of a belief that humans innately have some fundamental rights.
Out of the three countries discussed in this paper, Turkey’s constitution offers the greatest protection of freedom of speech . However, the document splits freedom of thought into a separate article from freedom of speech, and offers more protection to the former. First, under Article 25,
“Everyone has the right to freedom of thought and opinion. No one shall be compelled to reveal his thoughts and opinions for any reason or purpose, nor shall anyone be blamed or accused on account of his thoughts and opinions” .
Second, in Article 26, the Constitution guarantees everyone freedom to express and disseminate information orally, in written form, in pictorial form, or any other form of media without governmental interference in most circumstances . However, the article grants the government authority to restrict the freedom of expression for the purposes of
“. . .national security, public order and public safety, the basic characteristics of the Republic and safeguarding the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary”.
It is important to note that while the Turkish Constitution provides certain exceptions to the guarantee of free speech, it still differs from its Saudi and Jordanian counterparts in that it does not rely on Islamic principles as a basis for the exceptions . In fact, some of the exceptions seem to mirror the acceptable exemptions mentioned in both the UDHR  and the ICCPR . The exceptions for protecting against crime and prosecuting offenders lend themselves to the UDHR exception allowing for regulations that maintain public order . The exception for maintaining national security could arguably fall under that category as well. However, since those same Turkish exceptions can apply during peacetime, they do not lend themselves to the ICCPR exception – which only allows for derogation from the ICCPR rights in times of public emergency . When it comes to maintaining national security, a stronger argument could be made that suspension of freedom of speech in order to protect national security is a right protected through the ICCPR’s public emergency exemption . While religion does not play a part in the other listed exceptions, those exceptions are still problematic under Westernized international law because they have no basis or authority in the UDHR or the ICCPR. The other listed exceptions, including protecting the rights and reputation of others or protecting professional secrets, do not fit into either the UDHR or ICCPR’s permissible exemption categories .
This is a good time to also mention that the Turkish constitution actually does not mention Islam at all . The only times it refers to religion is when it states that it is a secular state , guarantees equality before the law regardless of religious belief , and guarantees the right to freedom of religion .
Since passing its constitution, the Turkish government has enacted a number of laws regulating free speech, including the 2004 Press Law , the Turkish Prevention of Terrorism Act, and two additions to the Penal Code . These laws are overly broad, intrusive on the rights of journalists in particular, and have been consistently enforced despite the European Union’s open disapproval.
The Turkish Prevention of Terrorism Act (Anti-Terror Act), which was enacted as the government was attempting to squash a Kurdish rebellion in the early 1990s, is a statute that criminalizes terrorist threats . The problem with the law, according to Reporters Without Borders, is that its definition of “terrorist” is incredibly broad and places harsher punishments on those who commit the “crime” through the media . In 2010 alone, the law was used to imprison nearly three dozen people for a total of 365 years . The law drew even more international attention after the European Court of Human Rights (ECHR) hailed the Turkish government into its chambers in the case Halis v. Turkey . That case involved the government’s imprisonment of a book reviewer following his conviction under the Anti-Terror Act . The government claimed the writer’s “positive opinions” of the Kurdish separatist movement in his review constituted the distribution of propaganda of an illegal separatist terrorist organization . Turkey argued before the ECHR that its actions were legal because they were done to protect national security . While the Court conceded that the Turkish government had a legitimate interest in protecting national security when it passed the law, it found that the plaintiff journalist’s right to freedom of expression was still unfairly violated because the government’s punishment was disproportionate to his rights .
An interesting aspect of the Halis case is that it was heard by the European Court of Human Rights, which is the enforcement mechanism for the European Convention on Human Rights. The European Convention on Human Rights is similar to documents such as the United Nations Charter, the UDHR, and the ICCPR in that it was drafted and enacted by the major “western” state actors. It aims to protect many of the same rights, such as the right to free expression, freedom of religious beliefs, protection from unjust punishment, and equality . So, in the Halis case, a Westernized court used a Westernized international document to assess the validity of a secular – but predominantly-Muslim-populated – state’s criminal law and conviction .
Next, the government adopted two provisions to the Penal Code that have had implications on freedom of expression. Penal Code Section 125 criminalizes criticism of the Turkish police or Turkish government institutions . Penal Code Section 301 is even broader, making it a crime to denigrate “the Turkish nation” . Persons convicted under the latter provision face up to three years in prison, and the government was initially unafraid to use it to prosecute individuals to the fullest extent . Furthermore, the punishment of Turkish citizens who were guilty of denigrating “Turkishness” while in another country would increase by one-third . In two high profile cases in 2006 and 2007, a journalist and a Nobel laureate were charged under the law for commenting on the role Turkey played in the Armenian genocide in the early 1900’s . As will be discussed below, three years after introducing Article 301, the government has backed off from enforcing the law, but only did so after mounting pressure from Western influences, such as the European Union and NGOs .
The majority of information on the status of freedom of expression in Turkey only covers the status of freedom of the press. This is likely because journalists are facing the brunt of Turkey’s speech laws. In fact, the Organization for Security and Cooperation in Europe (OSCE) reported that there were nearly 100 journalists imprisoned in Turkey in 2012 . That being said, non-journalists do not always escape the wrath of the government under these laws. Students, professors, and even some of the most religious Muslims have been prosecuted under the various laws . Although it appears at first glance that the victims of free press come from a cross-section of Turkish society, upon further investigation, the Carnegie Endowment for International Peace found “that the imprisonment of journalists has a distinct Kurdish dimension and is largely based on anti-terrorism legislation” . More than 80 percent of imprisoned journalists had either reported on a “Kurdish issue” or the Ergenekon case . The latter is a nationalist group that has been banned for allegedly trying to destabilize Turkey .
Other nongovernmental organizations have voiced their concerns about Turkey’s freedom of expression laws, particularly through special reports. As of 2013, Turkey’s press is “partly free,” based on Freedom House’s freedom scale . The rationale for its score? For one thing, Turkey has imprisoned more journalists than any other country in the world . Freedom House noted that these imprisonments are the direct result of Turkey’s failure to uphold its free-expression guarantees in its constitution . Also, despite the fact that Turkey has attempted to loosen its iron fist on the press by punishing violators of its press laws with fines instead of prison time, the legislature has failed to remove some of the harsher laws targeting the press . If anything, the Turkish government has actually increased its power to censure and punish reporters, and the judiciary is doing nothing to stop it. For example, the Constitutional Court approved the removal of a provision to a press law that required prosecutors to file complaints against journalists within a fairly narrow timeframe . Outsiders have criticized the judiciary for equating pure expression of an alternative or critical idea to the actual intention to incite violence .
Many other organizations have long echoed Freedom House and Carnegie’s sentiments. In 2011, Reporters Without Borders noted that the judiciary is “dominated by an obsession with ‘security,’” and the legal system defends the government more readily than ordinary citizens . This is especially problematic since the laws are vague and repressive, leaving prosecutors and judges with heavy leeway . By 2013, Amnesty International came to the conclusion that Turks were most likely to be prosecuted for speaking out in favor of Kurdish rights . It noted that more than 200 journalists suspected of being members of the Kurdish Communities Union found themselves at the center of “large-scale trials” . The Committee to Protect Journalists echoed Amnesty International’s findings, noting that the journalists jailed for their “involvement” with Kurdish political groups were merely reporting on those groups’ views and activities . Furthermore, seventy percent of journalists imprisoned under the Anti-Terror Law were Kurds whom the prosecutors claimed “were using news coverage to create the kind of societal chaos conducive to a coup” .
While naming and shaming does not always result in countries submitting to international political pressure, the condemnation contained in one particular report likely had a significant impact on Turkey’s somewhat less restrictive press laws . In 2012, the European Commission placed the “limitations of press freedom squarely at the heart of its concerns about the country” in its annual report on Turkey’s progress . In other words, the Turkish government’s refusal to respect freedom of expression is the main thing shutting it out of the European Union .
Of all of its laws and restrictions on freedom of expression, Turkey’s Penal Code Article 301 has drawn the most scrutiny from outsiders . Turkey pulled back on its stringent enforcement of Article 301 of the Penal Code only after some public criticism from “Western” groups ranging from the European Council to Freedom House to Amnesty International . Less than two months after Freedom House issued a press release condemning Article 301, the New York Times reported that Turkey was easing the restrictions on free speech . The amendment to Article 301 was heralded as “a key measure of the democratic maturity of this Muslim Country as it tries to gain acceptance to the European Union” . However, while the law technically remains on the books, and the rest of the world thinks the Turkish population is becoming increasingly liberal, scholars note that Turkish society is as much to blame for the strict regulations on free expression as is the Turkish government . These scholars assert that Turks have a strong sense of nationality, and the nation as a whole still suffers from “insecurity” and “low self-esteem” after being born out of the chaos of World War I .
The observations of a Turkish lawyer and critic of Article 301 offer the most telling insight into the clash between Islamic values and Western notions of free speech. Speaking to the Times, Huseyin Durdu “looked stricken” when asked to contemplate what would happen if Article 301 was banned altogether – something he was actually advocating for . “People would be insulting each other. It would be conflict and chaos,” he said . This seems to be a reflection of the Islamic principle that only the truth should be spoken so that conflict can be avoided. Atilla Yayla, a professor who was condemned under Article 301, echoed Durdu’s sentiments, but noted that “I don’t like insulting people. I can usually make my point without it” .
The Anti-Terror Law has also drawn its fair share of condemnation from the international community. In April 2013, more than twenty years after the law was first passed, the Turkish Parliament passed a series of amendments to the law that were intended to help bring it into accordance with the standards set forth in the European Convention on Human Rights . Once again, parliament’s change of heart came after outside Western parties, such as the Council of Europe, the U.N. Office of the High Commissioner for Human Rights, and the U.N. Human Rights Committee, called on Turkey to protect journalists’ rights instead of taking them away . The nation faced a major blow when the European Court of Human Rights handed down a ruling in 2010 holding that the Turkish government not only failed to protect a Turkish-Armenian journalist, but that it also “failed to adequately investigate his murder and infringed on his right of freedom of expression” . Prior to his death, the journalist had been charged and tried under the aforementioned Penal Code Article 301 .
Even when one considers the number of journalists imprisoned in Turkey and the targeting of Kurdish supporters, its legal and social atmosphere seems like a haven for free expression when compared to Saudi Arabia’s legal and social atmosphere. The difference in acceptance of free speech appears to be directly related to Islam’s role in governmental affairs. Interestingly, 100 percent of the populations of both nations identify themselves as Muslim . A key difference between Saudi Arabia and Turkey is that the former still has a monarchy and lacks a secular government . In fact, it identifies itself as a Muslim nation at the outset of its leading legal document . Islamic principles repeatedly appear in the justice system, legislative system, and the government at large .
Before addressing the speech laws and Western perceptions of Saudi Arabia, it is worth touching on some of the basic aspects of Saudi history, government, and culture. The Al Saud family has ruled Saudi Arabia since the nation’s modern-day inception in 1932 . Twenty-four government ministries, whose heads are appointed by the monarch, help govern the 27 million Saudi citizens . Most of the nation’s rulers have focused heavily on economic development, whether it be forming the Gulf Cooperation Council, or establishing state schools and state universities, or developing nationwide infrastructure that supports modern technology and healthcare . But the nation is perhaps most economically famous for its grip on the oil industry. Saudi Arabia controls the largest petroleum reserves in the world – which has led the capital in particular to remain an economic and political force to be reckoned with .
Western ideals and their influence on Middle Eastern affairs play a significant role in the tension between Saudi Arabia and the West. For one thing, the Saudi government, while technically an ally of the United States in the War on Terror, has faced a great deal of condemnation from the Western world . The Saudi government has also faced a problem of internal resistance from its own citizens over the past several decades: some seek more secularization like Western nations, while others seek more religious restrictions to combat the ever-increasing presence of Western society in Arab culture and Islam . In terms of people who fall into the latter category, the Saudi government has a vested interest in stifling out extremists – not because it believes that religious extremism is in and of itself a bad thing, but because extremists could threaten the stability of the country, and thereby the stability of the government . The Saudi government’s fear of the power of its own citizens was never more evident than when its neighboring countries began experiencing rebellions in 2011 . Saudi Arabia has been heavily invested in maintaining the status quo in the Middle East, and throughout the Arab Spring, the government used its resources to help the governments of nearby nations in turmoil . Moreover, the king bribed Saudi citizens, promising them more than $100 billion in “domestic incentives” if they abstained from protesting like their neighbors .
Despite the Saudi government’s attempts to control its own constituents and geographic region from Western influences, it has forged a well-known, close, and sometimes strained relationship with the quintessential Western nation: the United States . Although both countries strive for stability in the Middle East, the approaches they have taken to maintain that stability have oftentimes been at odds . On one hand, the Saudi government represses and bribes its own people, but seems to recognize there is a limit to that repression that it cannot go past . It was in full support of using military force to stop the Assad regime in Syria from using chemical weapons against Syrians . On the other hand, rumors have circulated that the Saudis are less than pleased that the United States is now in “talks” with Shia-dominant Iran – Sunni Saudi Arabia’s rival . In more recent years, Saudi Arabia has been rather vocal about its distrust of international organizations such as the United Nations. Even when Saudi Arabia obtained an otherwise highly-coveted temporary seat on the United Nations’ Security Council in October 2013, the government renounced its seat because it believed that the Security Council had failed to fulfill its duties in bringing about peace in Syria and resolving the Israel-Palestine conflict .
What was particularly interesting about the Security Council situation was that the Saudi diplomats initially lauded their election as a “defining moment” in Saudi Arabia’s history . However, the government back home in Riyadh did not share this sentiment . The contradiction between the Ministry’s initial push for acceptance into the Security Council and the Saudi government’s subsequent disdain for the Security Council is arguably a demonstration of the internal conflict within the government over the role of the West and how far the Saudis should venture into Western affairs and concerns .
Based on the language of Saudi Arabia’s laws and governing documents, its primary concern, particularly when it comes to freedom of expression, is preserving the integrity of Islam . Every speech law not only mentions respect of Islam as a requirement in all forms of expression, but mentions Islam several times across several articles in the same document . Islam and Sharia “suffuse” the text of the Basic Law, making them a major theme of the document . These references range from the declaration that Islam is the national religion, to declaring two Islamic holy days as national holidays, to setting the Islamic lunar calendar as the nation’s official calendar . Since Sharia is the national law, it regulates both Saudi residents and the government. Other national laws are considered subordinate to Sharia . This is a stark contrast to the laws of Turkey, which as explained at length above, never mention religion as a condition on speech – let alone make references to Islam in particular .
Because of Islam’s importance in all aspects of Saudi life, the nation has been described as the defender of Islam . Saudi Arabia spends a significant amount of money and other resources to maintain Islamic holy sites and uphold its interpretation of Islamic law . The nation has consequently adopted a reputation around the globe as the face of an international “struggle against Western corruption” . However, the religious environment is not as uniform as the government would like the rest of the world to believe. Some provinces have a majority Shiite population, in contrast to the Sunni royal family and national government, and carry a Western “feel” . Plus, scholars have noticed that the government tries to project an image of religious and tribal discourse in order to maintain stability within the country, but that image weakens when the country is faced with crises that reveal the clash between the discourse and the actual practices of the monarchy .
The major “documents” setting up the government and legal framework of Saudi Arabia are rather unique. One document is the Basic Law of Governance, which explains the role of the government, the values of Saudi society, and rules regarding economic issues, among other things . The other governing “document” is the Holy Qur’an, a book that Muslims believe to be the direct word of God. However, the Basic Law defers to the Qur’an. Article 1 of the Basic Law stipulates that “[t]he Kingdom of Saudi Arabia is a fully sovereign Arab Islamic State. Its religion shall be Islam and its constitution shall be the Book of God and the Sunnah (Traditions) of His Messenger . . . .” . In other words, the Qur’an is the supreme law of the land, and all laws must fall into accordance with the Qur’an. Furthermore, the state is required to use Sharia law, also known as Islamic law, as the mechanism to protect human rights . These direct references to Islam, particularly the four references in the very first Article of the Basic Law, offer an extreme contrast to the Constitution of Turkey, which does not contain references to Islam despite its predominantly Muslim population .
Based on its numerical placement in the Basic Law, it seems that freedom of expression rights are not of significant importance in Saudi Arabia. Article 39 provides that
“Mass and publishing media and all means of expression shall use decent language and adhere to State laws. They shall contribute towards educating the nation and supporting its unity. Whatever leads to sedition and division, or undermines the security of the State or its public relations, or is injurious to the honor and rights of man, shall be prohibited. Laws shall set forth provisions to achieve this” .
The language of this particular article echoes much of the Islamic sentiment on speech rights; i.e., one must only speak the truth and speak in a way that fosters community rather than discord . Islamic principles have only continued to heavily influence subsequent national laws, at least according to Western NGOs . As will be discussed more at length below, at least two other Saudi Arabian national laws and their amendments concentrate on banning speech that contradicts Sharia Law or insults religious leaders .
Article 39 also seems to suggest that the media has a privilege to exist, rather than a right to exist . The use of the phrase “the media shall function in a way” insinuates that rather than protecting the rights of the media, it is merely allowing the press to exist if certain conditions are met . From a constructionist standpoint, if the media is not “educating the masses and boosting unity” it will be shut down . Plus, anything that is offensive to dignity is open to both regulation and punishment .
Information on the many Saudi laws that regulate freedom of expression is scarce. Various NGOs have reported that the Saudi government has issued a number of laws and decrees in recent years, particularly after the Arab Spring in 2011. That being said, tracking down the full language of these laws and regulations is tricky. Among the laws that the nation has passed include Royal Decree 1700/Mim Ba, which took jurisdiction over the media away from the judiciary and handed it to the Ministry of Culture and Information . In April 2011, as the Arab Spring was in full swing, another royal decree banned “the reporting of news that contradicts Sharia (Islamic law), undermines national security, promotes foreign interests, or slanders religious leaders” . The decree also granted the government the power to place lifetime bans and fines of up to $133,000 on journalists who violated the decree .
Another important law regulating freedom of expression is the Law of Printing and Publication, which governs everything from radio and television to advertising to bookshops to drawing and writing . It requires all specified “publishers” to obtain a license prior to publishing or printing, and it sets strict restrictions on who can obtain a license in the first place . The applicant must be male , must be at least 25 years old, must have a good reputation, and must “have a suitable qualification in accordance with the provisions of the Implementing Regulations” . The Implementing Regulations mentioned in the fourth criterion are not included in the final act itself, but are apparently a separate document. Individuals who meet the criteria must then pay the government a fee .
This law does not just curb freedom of speech through its license application process; it also limits freedom of expression through its requirement that publishers follow the tenants of Islam . References to Islam run rampant through the law, constantly reminding the reader that anyone who fails to follow Islamic tenants is in direct violation of the law . First, Article Three declares that the purpose of all printed material should be, among other things, promoting the “call to Islam” . Second, the law guarantees freedom of expression in Article Nine, but only on the condition that the publication of such expression abides by Sharia . Third, Article Eighteen notes that materials published outside of the kingdom will only be approved for distribution and/or printing within the kingdom if the materials are “freedom from anything insulting to Islam,” among other things .
Finally, Saudi Arabia’s Anti-Cyber-Crime Law is a somewhat older provision used to prosecute individuals for expressing sentiments that the government deems as harmful to public morals and Islam. Passed in 2007, this royal decree states in Article 2 that one of its purposes is to combat cybercrime in order to protect “public Interest [sic], morals, and common values” . Article 6 goes on to declare that a person who produces, prepares, transmits, or stores “material impinging on public order, religious values, public morals, and privacy through the information network or computers” is subject to five years in prison and a hefty monetary fine .
It is important to note that these laws are not merely sitting on the books unused. Individuals have been consistently prosecuted under one law or another, and in some cases, individuals are forced to flee the country . Repeat offenders receive even harsher punishments .
Based on the stark contrast between the laws protecting freedom of expression in Western countries and even places like Turkey, one would be correct in assuming that outsiders disapprove of the way that Saudi Arabia approaches expression, speech, and the press. Freedom House placed the country in the “not free” category, citing the government’s stronghold on speech that is generated domestically and internationally; its Big-Brother-like monitoring, censoring, and blocking of websites; its strict and religiously-backed licensing requirements; its cronyism (every daily newspaper in Saudi Arabia is privately owned, but each owner has some affiliation with the Saudi royal family); and its creation of a social environment where journalists self-censor out of fear of the government .
Reporters Without Borders (RWB) has consistently condemned the government for imprisoning journalists and “cyber-activists.” It appears from RWB’s press releases that these criminal prosecutions are usually the result of someone violating a law that forbids expression that the government considers insulting to Islam . RWB ranked Saudi Arabia 163 out of 179 countries studied in its annual press freedom report, placing it ahead of Cuba, China, Iran, and Syria, but behind Egypt, Russia, and Malaysia . Apart from its annual report, RWB also denounced the Saudi government for sentencing a cyber-activist, Raef Badawi, to seven years in prison after he supposedly offended Islam under the country’s Anti-Cyber-Crime Law . The government claimed that Badawi had created and moderated a website that openly insulted religious officials and Islam . Apparently Badawi had failed to remove a third-party’s comment that was allegedly blasphemous . The judge also tacked on an additional three months to the young man’s sentence for alleged “parental disobedience” .
The Carnegie Endowment for International Peace is one of the few organizations that has directly addressed the possibility that Islam has a profound impact on Saudi Arabia’s inability to protect speech in a way that is consistent with international standards. It noted that the government believes that its own interpretation of Islamic law is “the only necessary guide to protect human rights” . While the Human Rights Watch (HRW) has also noted that Islamic principles have a stronghold on speech in Saudi Arabia, it only did so when discussing the government’s discriminatory practices toward Shia Muslims’ religious practices and beliefs . HRW was only concerned with how the Saudi government’s interpretation of Islam has restricted the religious speech of citizens who do not agree with its interpretation of Islam. HRW did not discuss how the government’s interpretation of Islam has influenced other speech. Also, it is interesting to note that neither Carnegie nor HRW explained Islam’s view on freedom of expression. In fact, neither NGO compared the general understanding of freedom of speech principles in Islamic law to the freedom of speech principles in Saudi law.
Legal scholars are none too impressed with Saudi Arabia’s freedom of expression record either. One argued that even the few laws and committees that the government alleges it has created in hopes of improving freedom of expression are mere drops in the bucket when compared to the power of the king .
Watchdog organizations and scholars have pointed out that Saudi Arabia has failed to protect an individual’s right to express himself, but the criticism that Saudi Arabia has faced is less than that of Turkey . One could argue that this inconsistency is due to Saudi Arabia’s economic influence through its stronghold on the oil industry; its important role in fighting the War on Terror; or its blatant disregard for joining traditionally Western human rights initiatives and appeasing Western international and non-government organizations . Perhaps because of the country’s economic strength and its advantage as an ally, the West has been a little more willing to allow Saudi Arabia’s free speech (and human rights) transgressions slip by without as much condemnation as it would otherwise. Or perhaps the West has resigned itself to the belief that Saudi Arabia simply cannot change.
There are a few examples in academia where scholars have been rather lenient on Saudi Arabia’s free speech record. For example, some have gone so far as to praise the Basic Law for being brutally honest when blatantly refusing to grant certain freedoms to its citizens . One lawyer, a graduate of Yale Law and a practicing attorney in Saudi Arabia’s capital, argues that unlike the governing documents in other North African and Middle Eastern countries, which fail to uphold their promise to respect democratic governance and human rights, the Basic Law of Governance is “unabashedly honest” . It makes no guarantee of democratic elections, of protecting human rights, or holding government officials accountable for its action . Instead, it rejects the more traditional expressions of constitutionalism in favor of “a powerful executive circumscribed only by historical practices and Islamic ideas of governance” . It seems rather perplexing to applaud a sovereign for openly declaring that it will deprive its citizens of their rights, particularly when the international community as a whole has decided that the sovereign has no authority to deprive those rights except in very limited circumstances . It is also a perplexing argument when one considers that Islam requires that people respect human rights.
Another American scholar, Dawn Nunziato, echoes the sentiment that Saudi laws are honest . She notes that while the Saudi government’s restrictions on online speech are particularly hostile, they are at least transparent . Not only do they give citizens clear notice of what type of speech is and is not permissible, but they explain why the speech is being censored in the first place . It is true that this type of notice may be more open and readily available to the average citizen when compared to states that fail to offer notice at all. However, Saudi Arabia’s notice on internet censorship is not as clear as Nunziato seems to suggest. The notice fails to explain what factors must be satisfied in order for speech to be offensive or harmful . It also fails to explain what Saudi societal norms should be . It also allows the government to engage in viewpoint discrimination. The government gets to decide what is offensive or harmful, what is a tenet of Islam, and what are societal norms .
While these various third-party observers mention that Islam and Sharia have an influence on Saudi laws and society, they do not place all the blame for the restrictive expression laws on religion. At the same time, these observers fail to at least address the possibility that cultural relativism and the tenants of Islam make it harder for Saudi society to come into accordance with the UDHR and ICCPR. The latter point is understandable, considering that it would be viewed an attack on Islam to proclaim that Islam makes it difficult for societies to adhere to human rights ideals. However, based on Islam’s influence on Saudi Arabia’s speech laws (and its influence on Jordan’s speech laws, as discussed below), the international community has to come up with a way to reconcile the speech principles promulgated in Islam with the free speech guarantees promulgated in documents like the UDHR and ICCPR. If the international community truly wants to make some sort of progress in the realm of freedom of expression in a predominantly-Muslim nation, this issue must be addressed.
The Kingdom of Jordan is a Middle Eastern constitutional monarchy primarily comprised of people of Arab descent . Like Turkey and Saudi Arabia, Jordan has a large Muslim population, but with only 92 percent of the 7.9 million people in the nation identifying as Sunni Muslim, Jordan has the smallest Sunni population per capita of the three nations surveyed in this note . Generally speaking, Jordanian society and government is a mix between those of Turkey and Saudi Arabia. Its legal system has elements of Sharia, similar to Saudi Arabia, but also follows the tenants of civil law, similar to Turkey . Its constitution protects citizens’ rights, similar to Turkey’s constitution, but also grants the government the power to limit those rights in certain circumstances, similar to Saudi Arabia .
The Jordanian press is a mix of independent organizations and government-owned entities. The government has its own television station, radio station, and newspaper, but has allowed for independent news sources to exist so long as they meet certain criteria . Namely, it requires that all publishers obtain licenses before beginning operation . So, even though there are a number of independent print news sources in the kingdom, they are still subject to government scrutiny . Until recently, the Ministry of Information kept tabs on publications and issued licenses for media outlets, but King Abdullah II dissolved the ministry and handed off its responsibilities to other government bodies .
While religion is an important aspect of everyday Jordanian society, the more urban areas are rather Westernized. Movie theaters play foreign films, theater companies put on plays and ballet performances, and internet cafes are readily accessible in Amman . Even though the government has control over the media, Western movies, television shows, and music are often featured on radio and television stations .
Jordan’s Constitution guarantees citizens freedom of opinion, unlike its Saudi counterpart, but stops short of guaranteeing freedom of expression to everyone at all times. Article 15 declares that “[e]very Jordanian shall be free to express his opinion by speech, in writing, or by means of photographic representation and other forms of expression, provided that such does not violate the law” . However, the Constitution seems to grant the government a loophole in regard to regulating the press. In Sections (ii) and (iii), the Constitution hints that it will allow for certain limits to be place on the freedom of press and freedom of publication “except in accordance with provisions of the law” . It is not entirely clear which “provisions of the law” that the Constitution is referring to. Critics have noted that the “law” mentioned in the Constitution is actually a set of unclear laws that often gives rise to arbitrary prosecutions .
Section (iv) of Article 15 goes even further by openly allowing the government to derogate from its responsibility to protect the right to freedom of speech during times of crises: “[i]n the event of the declaration of martial law or a state of emergency, a limited censorship on newspapers, publications, books and broadcasts in matters affecting public safety and national defence [sic] may be imposed by law” .
In the past two decades, Jordan has enacted or amended a handful of laws related to expression . Some of these laws benefited the public at large, such as the Right of Access to Information Law, but overall, they have decreased Jordanians’ ability to exercise their speech rights . These laws echo Saudi Arabia’s belief that information disseminated over the internet, particularly information that is viewed as a threat to national security, must be monitored and filtered. It seems that in practice, the laws are more likely to be used to punish individuals for questioning the king or the government than for making statements related to Islam.
Jordan’s first press law, the Press and Publications Law, was one of the few expression laws that empowered citizens as opposed to the government . Passed in 1993, the law protected a person’s right to establish a newspaper and required the government to use judicial review before suspending or closing a newspaper . However, that particular press law did not remain intact for long. In the five years after the law’s enactment, the media fell under attack for allegedly ruining Jordan’s image and threatening national security after it published information contradicting and criticizing the government . The government responded by passing the Press and Publication Law of 1998 to curtail the media . That new law, along with its amendments, had significant implications on freedom of expression. It restored the government’s licensing power, substantially raised the fines for breaking the law, added more content-based restrictions on free speech, gave some government bodies the authority to censor foreign publications even before they made it into Jordan, and created a prior restraint by requiring authors to submit two copies of “any book to be published to the Kingdom to be deposited with the PPL prior to publication” .
In recent years, the government has taken steps towards regulating internet expression as much as print expression. For example, the government passed the Information Systems Law just before the Arab Spring ignited . Among other things, the law grants police the authority to search website offices and gain access to their computers without a warrant . The law tightened restrictions on online news outlets under the guise of regulating cybercrime, and observers considered it to be a step in the direction of oppressive regimes like in Iran, Syria, and Saudi Arabia . In another instance, members of the Jordanian Ministry passed a regulation that cut government employees off from access to almost fifty news websites . In yet another case, the Court of Cassation, which is the highest judicial authority in Jordan, recommended that the Press and Publications Law be extended to online and other electronic media .
Finally, Jordan’s Penal Code also hinders freedom of expression through its provisions on defamation and libel. A person found guilty of either defamation or libel is not just subject to civil penalties like in many Western societies, but rather, imprisonment for up to three years .
Despite Jordan’s best efforts to curtail criticism of its policies in its own press, it has been unable to escape the criticism of Western NGOs, foreign governments, scholars, and news outlets outside its borders. Like Saudi Arabia, Jordan fell into Freedom House’s “not free” category in 2012 , was ranked in the bottom 25 percent of countries in the Reporters Without Borders rankings , and was consistently called out in the international media for its internet censorship activities. In October 2013, a group of NGOs wrote an open letter to King Abdullah expressing their “deep concern” about the legal restrictions on websites and the application of the Press and Publications Law .
Freedom House based Jordan’s designation as a “not free” press state on criminal laws, prosecution of journalists, and lack of access to information . During its investigation for its annual report, Freedom House found that the government allows for some criticism of it and its policies, but still tries to influence the media when it can . Even international news agencies found themselves the victim of the Jordanian government’s wrath . It stopped providing Agence France-Press official transcripts and government notices after the agency reported that some Bedouin tribes were accusing Queen Rania of corruption . The NGO also found the national legislature’s amendment to the Press and Publications Law that created specialized criminal courts for the prosecution of violators of the law particularly alarming . Another troubling feature of the press environment was the fact that the government still used the numerous expression laws to “stifle” dissenters, even though it usually released the journalists arrested under those laws without trying them . But Jordan’s former Minister of Information and Communication offered up one of the most damning comments on the state of press freedom in Jordan when he resigned from his position, noting that the then-proposed amendments that aimed to strengthen the government’s grip on the media were a “blow to press freedom” .
Reporters Without Borders ranked Jordan 134 out of 179 countries surveyed in its Press Freedom Index . Jordan actually dropped six spots from the previous year’s list because of a new royal decree that restricted freedom of information, particularly online .
Human Rights Watch has consistently published articles condemning the Jordanian government’s prosecution and harassment of journalists. In April 2012, it reported that a journalist was imprisoned after writing an article suggesting the king had intervened in a corruption investigation . The journalist and his publisher were charged with “subverting the system of government” . In September 2013, HRW reported that the publisher and the chief editor of a news website were arrested and charged with “disturbing relations with a foreign state” after posting a YouTube video that showed one of the princes of Qatar dancing and showering with women . In every instance, HRW called on the Jordanian government to drop the charges and stop hindering the journalists’ right to free speech .
The United States Government has been none too impressed with Jordan’s expression laws either. The State Department (State) listed Jordan’s restrictions on freedom of expression as one its “most significant human rights problems” . In its annual human rights report, the State cited to instances in Jordan where a newspaper reporter was fired after he criticized the government, where the government tracked university students’ speech, and where the government prosecuted political activists for their speech . It noted that self-censorship runs rampant because journalists fear government prosecution and heavy fines if they publish materials on sensitive subject matters, such as political reform .
The United Nations Educational, Scientific and Cultural Organization (UNESCO) office in Amman released a detailed analysis of the Jordanian media environment in 2012 . It found that while Jordan has ratified human rights treaties guaranteeing freedom of expression, its national laws and practices violate those treaties . One particular violation included the passage of an amendment to the Press and Publication Law that allowed for the law to cover online media . This amendment came after the King and his government vowed to reform legislation in a way that favored freedom of expression . UNESCO found it troubling that Jordanian reporters do not adhere to professional journalism standards, lack accountability, and are constantly self-censoring out of a fear of legal and physical threats .
However, unlike some of the NGOs and the State, UNESCO offered suggestions to the Jordanian government on how it can improve its media environment. In its media analysis, it stated that it had submitted a document to the government in 2011 that detailed its policy advice regarding freedom of expression . More specifically, it explained how the country could encourage the existence of a free press .
The international media challenged the Jordanian government’s practices from a slightly different angle. They latched onto Jordan’s wide-scale ban on news websites in the summer of 2013 . The Christian Science Monitor, for example, reported that the government of Jordan had blocked access to 263 news sites that had failed to comply with a 2012 national law requiring online media to register with the government . The 2012 law was yet another one of Jordan’s responses to the Arab Spring . The reason why so many online news sources had failed to comply with the law was two-fold. For one, they saw the statute as a form of excessive governmental interference with the media . They didn’t agree with the law in principle. But second, many of the owners of online media were simply unable to meet the strict requirements of the law . In order to register, they not only had to submit a registration fee, but the editor-in-chief of the operation was required to be a member of the Jordanian Journalists’ Syndicate (a government entity) for at least four years .
The government fired back at the media’s complaint that the law was too strict and repressive. It released a statement saying that “[t]he blocking is not intended to restrict freedoms . . . but the goal of this action is to organize the work of these websites, protect them, and keep from allowing those from outside the profession to inhabit the label of journalists . . . .” .
The academic literature published by scholars on Jordan’s expression laws is scarce. It seems that they have focused more on Jordan’s neighbors – particularly Saudi Arabia . Nonetheless, the few who have analyzed Jordan’s speech environment have concentrated on its constraints on the media . The Penal Code is seriously problematic because it remains incredibly vague, even after numerous amendments . One Jordanian journalist explained how difficult it is to comply with the Penal Code, when he explained that something as simple as “writing about the Jordanian currency could be explained as harming the national interest and writing about the influx of Iraqis in the advent of the war could be explained as sparking sectarian strife” . Overall, although Jordan does restrict speech on many occasions, scholars have noted that its laws are still more tolerant toward press freedom compared to Saudi Arabia .
The case studies of Turkey, Saudi Arabia, and Jordan presented in this paper demonstrate the different ways countries with majority Muslim populations address freedom of speech. Despite their shared religion, the fact of the matter is that these countries’ differing cultures, histories, and statuses in the international political realm seem to have the biggest influence on the level of protection that they give to speech. The case studies show that it is erroneous to say that Islam is the definitive reason for these countries’ restrictions on free speech. For example, in the case of Turkey, the restrictions on the press stem from ethnic tensions, not from Islam itself. On the other hand, in Jordan, the restrictions on the press stem from the government’s attempts to control its image. Both countries are almost entirely made up of Muslims, and while the latter incorporates elements of Islam into government and law, the former does not.
The brief analyses of Turkey, Jordan, and Saudi Arabia’s treatment of free speech demonstrate how societal differences – i.e. cultural relativism – influence how effectively societies can incorporate free speech into their countries. These societal differences cross over into religious matters; different societies have different interpretations of Islam and have differing views on what role it should play in government. The Saudi monarchy, for example, decides how to implement Islamic law in the kingdom. The Turkish government, on the other hand, is shut off from religion altogether. It does not attempt to apply religious law or interpret religious tenants or documents for its citizens. Cultural relativism gives a rationale for why freedom of speech is more readily recognized in a predominantly Muslim country like Turkey, but not a country like Jordan: Turkish culture is different than Jordanian culture. Religion plays less of a role in the public realm in the former than it does in the latter.
Islam’s influence on the laws and societal beliefs in countries like Turkey, Saudi Arabia, and Jordan is not something to be ignored. It is a piece in the cultural relativism puzzle that helps explain why speech is not as readily protected in some Muslim countries as it is in secular or Western countries. Islam places more of an emphasis on fostering community and avoiding discord. Its teachings lend some support to free, but truthful, speech and go so far as to frown upon punishment for inappropriate or antagonistic speech. Islamic teachings on speech mirror the Western views on speech in that they refuse to punish individuals who do convey controversial, false, or antagonistic speech – at least in this world.
Despite Islam’s influence on Turkish and Jordanian society and culture, it is not a driving force behind their reluctance to protect speech rights – at least not explicitly in their laws. National security is often offered as a rationale for restricting speech rights. All of this is strong evidence that Islam is not the sole reason why nations with large Muslim populations place less emphasis on the right to express yourself freely.
History demonstrates that the evolution of speech rights in Western countries was a slow process, and the people within those countries adopted free speech values as it became necessary to enhance their political dominance and their need for open political discussion. Western society has steadily been working toward the belief that freedom of speech is an inherent right for at least four centuries. What began as grassroots efforts to let printers publish without governmental repercussions slowly evolved into a belief that the ability to express oneself is a fundamental human right. Predominantly Muslim countries are just beginning the journey toward recognizing certain fundamental individual rights. Just as Western societies were unable to declare free speech a fundamental right overnight, these majority-Muslim societies also cannot be expected to declare free speech a fundamental human right. This is not to say that these nations are off the hook for censoring, fining, and imprisoning individuals who speak in a manner that the governments or society deems unnecessary or unsavory. These outspoken individuals have a right to express themselves, and they deserve protection, regardless the extent to which their society believes that freedom of speech ought to be protected. Nevertheless, Turkey, Saudi Arabia, and Jordan’s history, along with their cultural and religious features, must be taken into consideration when trying to understand their views on free speech and when trying to help those countries move toward greater expression protections for all their citizens.
Turks, Saudis, and Jordanians have not spent the past several centuries fighting for free speech, unlike their Western counterparts. Free speech protections were not really on the former’s radar. Beyond “speaking the truth,” free speech did not play a substantial role in society at all. But as these countries have faced forms of protest, revolutions, and changes in political regimes in recent years, they have begun realizing the necessity of freedom of speech. From that standpoint, the Muslim world’s realization that political speech deserves particular protection mirrors one of the Western world’s earliest movements towards recognizing free speech as a fundamental right. Like the Levellers and the members of British Parliament in the 1600s, citizens of these Muslim countries are recognizing how protecting speech allows for better governance. Muslim societies are just beginning the journey toward free speech, whereas Western societies like England, France, and the United States have recognized free speech as an inherent right for at least 300 years.
An analysis of freedom of speech perceptions in the West as opposed to these Muslim countries shows that the critics of free speech protections are usually Western. So the outsiders who try to explain to these Muslim states how to protect speech are approaching the problem with a uniquely Western viewpoint. They already have a prolonged history of fighting for speech rights, and that history does not necessarily include incorporating religious tenants into justifications for human rights. This is like comparing apples to oranges, and it results in a culture clash.
Cultural and religious ideals are not the only factors in the differing views on freedom of speech. The legislative history and language of the actual legal instruments declaring speech as a fundamental human right are another reason why Muslim nations are reluctant to fully embrace the Western notions of free speech. Turkey, Jordan, and Saudi Arabia had little to no influence on the creation of human rights documents like the UDHR. Plus, UDHR and ICCPR offer no game plan on how to implement these rights into societies. This is problematic for non-Westernized countries, particularly since their free speech history is more limited.
A firm conviction that speech is worthy of a great deal of protection will not happen overnight in countries like Turkey, Saudi Arabia, and Jordan. The process of changing public and government sentiment regarding free expression will likely happen slowly. When assisting these nations in their free speech endeavors, the West will have to include considerations of these nations’ histories, cultures, and religious beliefs. Condemnations from Western government and NGOs is not enough. Until both the West and Muslim countries can figure out how to reconcile these aspects of Muslim societies with Western ideals of free speech, it is likely that the condemnations from Western governments and NGOs will go unheeded.
*J.D., The University of Alabama School of Law (2014); B.A., The University of Alabama (2010). The author would like to thank former Under Secretary of State Maria Otero for helping the author realize her passion for international human rights and for being such an inspirational advocate and diplomat; Professor Dan Joyner for his help throughout the writing process of this comment; Knox Thames for encouraging her to take on a project of this magnitude; and her parents and brother for their unwavering support throughout law school.
. John Trenchard & Thomas Gordon, Cato’s Letters, No. 15, Feb. 4, 1720: Of Freedom of Speech: That the Same is Inseparable from Publick Liberty (Ronald Hamowy, ed., Indianapolis: Liberty Fund) (1995) available at http://lf-oll.s3.amazonaws.com/titles/1237/Trenchard_0226-01_EBk_v6.0.pdf.
. Const. of the Republic of Turk., Nov. 7, 1982, Pt. 2, Art. 26.
. Basic Law of Governance, Mar. 1, 1992, Art. 1 (Saudi Arabia).
. Const. of the Hashemite Kingdom of Jordan, Jan. 1, 1952, Ch. 2, Art. 15, available at http://www.kinghussein.gov.jo/constitution_jo.html.
. International Covenant on Civil and Political Rights, supra note 8. See signatories to the ICCPR, available at https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-4.en.pdf.
. Harris Zafar, Making Islamic Sense of Free Speech, The Washington Post, (Jan. 14, 2013) http://www.washingtonpost.com/blogs/guest-voices/post/making-islamic-sense-of-free-speech/2013/01/14/95fc0b5a-5ec0-11e2-90a0-73c8343c6d61_blog.html.
. Mayer supra note 40, at 325.
. Central Intelligence Agency, The World Factbook 2013-14: Turkey (Central Intelligence Agency, ed., Washington D.C. 2013) available at https://www.cia.gov/library/publications/the-world-factbook/geos/print/country/countrypdf_tu.pdf (June 20, 2014).
. Turkey, OpenNet Initiative, 341-42 (Dec. 18 2010) https://opennet.net/sites/opennet.net/files/ONI_Turkey_2010.pdf (“The Turkish military powers consider themselves to be the guardians of secular democracy and in the past have actively pursued this role, resulting in the forced removal of elected governments on a number of occasions. The Turkish military has developed a long history of involvement in politics, and as a result the government remains dependent upon it to maintain a balance between religious and secular institutions.”).
. Id. at 27-28 (noting that in the 1990s, Turkey banned the use of the Kurdish language – effectively hampering the speech of one-fifth of its citizens. It also went so far as to eliminate Kurdish nationalism by imprisoning individuals who referred to the Kurdish population as Kurdish rather than “mountain Turks.” The Turkish Parliament’s first Kurdish member was sentenced to fifteen years in prison after she said “I shall struggle so that the Kurdish and Turkish peoples may live together in a democratic framework.”).
. Id. at 27-28 (“In truth, the government has demonstrated that it is willing to cooperate on free speech given a realistic prospect of EU membership, but has regressed when the prospect did not seem as realistic.”).
. Id. at art. 26 (“Everyone has the right to express and disseminate his/her thoughts and opinion by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference from official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing.”).
. UDHR Res. 217, supra note 7 (it is arguable that Articles 28 and 29 provides a loophole for upholding Article 19’s guarantee of freedom of expression. Article 28 notes that “everyone is entitled to a social and international order.” However, that right is qualified by the notion that the “order” should allow for the complete realization of the rights guaranteed in the Declaration. Article 29 allows for limitations on the UDHR’s named rights if it is determined that such limitations are needed to meet “the just requirements of morality, public order, and the general welfare in a democratic society.”).
. ICCPR Res. 2200, supra note 8, at art. 4 (in Article 4, the signatories agree that parties “may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation” in a time of public emergency. However, the derogating measures cannot violate other international laws and cannot discriminate solely on the ground of “race, colour, sex, language, religion or social origin.”).
. ICCPR Res. 2200, supra note 8, at art. 4.
. Id. (this should not be read to say that there is a blanket exception for national security emergency situations under the ICCPR. Such an exception only applies in certain circumstances. If the threat is imminent or ongoing, then it seems more likely that a provision suspending freedom of speech on those grounds would be permissible under the ICCPR. However, there is still a question of whether Article 26 of the Turkish Constitution is even in accordance with the ICCPR since it does not explicitly state whether the exceptions apply solely in times of public emergency).
. Johann Bihr & Jean-Francois Julliard, A Book is Not a Bomb!, Media and Justice in Turkey, Mistrust and Repression, Reporters Without Borders 14 (June 2011), available at http://en.rsf.org/IMG/pdf/rsf_report_turkey_2011_en.pdf; see also Freedom House, Freedom of the Press 2012: Turkey, 341-43 (2012), available at https://freedomhouse.org/sites/default/files/FOTP%202012%20Final%20Full%20Report.pdf
. Jo M. Pasqualucci, Criminal Defamation and the Evolution of the Doctrine of Freedom of Expression in International Law: Comparative Jurisprudence of the Inter-American Court of Human Rights, 39 Vand. J. Transnat’l L. 379, 412 (2006).
. Id. at ¶¶ 36-39.
. It is also worth noting here that unlike Saudi Arabia and Jordan, Turkey is actively trying to obtain membership to the European Union— which is an organization that is dominated by some of the biggest “Western” states.
. Amnesty International, Turkey: Article 301: How the law on ‘denigrating Turkishness’ is an insult to free expression, 1 (Mar. 1, 2006), http://www.amnesty.org/en/library/asset/EUR44/003/2006/en/1a24fcc9-d44b-11dd-8743-d305bea2b2c7/eur440032006en.pdf.
. Marc Pierini & Markus Mayr, Press Freedom in Turkey, Carnegie Endowment for International Peace, 5-6 (2013), available at http://carnegieendowment.org/files/press_freedom_turkey.pdf (noting that more specifically, most of the individuals who are prosecuted are – according to the government – leaders or members of a terrorist organization or are creating propaganda for such an organization.)
. Id. (these statistics were based on reports from the OSCE. An updated list of imprisoned journalists in Turkey including recent releases, is available at http://www.osce.org/fom/119921?download=true.)
. Freedom House, Freedom of the Press 2013: Turkey, 379 (2013) available at https://freedomhouse.org/sites/default/files/FOTP%202013%20Full%20Report.pdf; see also Pierini & Mayer, supra note 126, at 4 (“Although ranking is not necessarily the most significant parameter, it appears that between 2005 and 2011-2012, Turkey dropped by 50 places in the Reporters Without Borders annual Press Freedom Index to 148, two places below the Democratic Republic of the Congo and two places ahead of Afghanistan.”). In contrast, almost every “Western” state received a “free” press status designation. These states include Canada, France, Germany, Spain, the United Kingdom, and the United States. However, Norway and Sweden tied for the designation of “most free” nation in terms of freedom of the press.
. Freedom House: Turkey, supra note 130, at 380 (“Constitutional guarantees of press freedom and freedom of expression are only partially upheld in practice. They are generally undermined by provisions in the penal code and the criminal procedure code, and by the country’s strict, broadly worded antiterrorism law, which effectively makes many types of investigative or critical journalism tantamount to terrorist activity.”).
. Amnesty International Report 2013: The State of the World’s Human Rights, Amnesty International (Dec. 7, 2014, 12:15 AM), http://www.amnesty.org/en/region/turkey/report-2013#section-151-3.
. Pierini & Mayr, supra note 127, at 4 (analyzing the European Commission report on Turkey). The European Commission, alongside the Council of Europe, initially decides whether a state can join the European Union. The Commission delivers a legal opinion to the Council detailing whether the applicant state has abided by the accession criteria set forth in the Treaty on the European Union. See The Accession Process for a New Member State, EUROPA, at http://europa.eu/legislation_summaries/enlargement/ongoing_enlargement/l14536_en.htm (Dec. 7, 2014, 12:30 AM).
. Sarah Paulsworth, Turkish Parliament Approves Amendments to Anti-terrorism Legislation, Jurist (Apr. 12, 2013), http://jurist.org/paperchase/2013/04/turkish-parliament-approves-amendments-to-anti-terrorism-legislation.php.
. Central Intelligence Agency, The World Factbook 2013-14: Saudi Arabia (Central Intelligence Agency, ed., Washington D.C. 2013) available at https://www.cia.gov/library/publications/the-world-factbook/geos/print/country/countrypdf_sa.pdf (June 20, 2014).
. Christopher M. Blanchard, Cong. Research Serv,, RL 33533, Saudi Arabia: Background and U.S. Relations, summary (Congressional Research Service, ed. June 14, 2010), available at http://fpc.state.gov/documents/organization/145596.pdf.
. Id. (No country elected as a temporary member to the UN Security Council had ever renounced its seat. According to an official statement by the Saudi foreign ministry, “Accordingly, the Kingdom of Saudi Arabia, based on its historical responsibilities towards its people, Arab and Islamic nations as well as towards the peoples aspiring for peace and stability all over the world, announces its apology for not accepting membership of the Security Council until the Council is reformed and enabled, effectively and practically, to carry out its duties and responsibilities in maintaining international peace and security.”)
. Id. at 128. (Fandy seems to be insinuating that the monarchy does not actually practice what it preaches. In other words, the monarchy is not following the religious tenants or laws that it is enforcing on the rest of Saudi society.)
. Human Rights Watch, Annual World Report: Saudi Arabia, 4-5 (Jan. 2012), available at http://www.hrw.org/sites/default/files/related_material/saudiarabia_2012.pdf (this publication was part of Human Rights Watch’s annual World Report. HRW noted that King Abdullah amended the 2000 Press and Publications Act in 2011 to include a prohibition on speech that harms various religious leaders’ reputations, including members of the Council of Senior Religious Scholars, the chief mufti, any government official, or any government institution.).
. Arab Political Systems: Baseline Information and Reforms – Saudi Arabia, Carnegie Endowment for International Peace, 10-11 (2008), available at http://www.carnegieendowment.org/files/Saudi_Arabia_APS.doc. (noting that the Basic Law fails to provide specific guarantees of the freedom of expression, assembly, political participation, or belief).
. Law of Printing and Publication of 2003, Royal Decree No. M/23, 3/9/1424 A.H. (Oct. 28, 2003) (Saudi Arabia), http://www.saudiembassy.net/about/country-information/laws/Law_of_Printing_and_Publication.aspx. (Article Two stipulates that “[t]he following activities shall be governed by the provisions of this Law: printed matters; pre-printed preparatory services; printeries; bookshops; drawing and writing; photography; importation of films and videotapes, sale or rent thereof; tape and recording discs; radio, television, cinematographic or theatrical artistic works; televisions and broadcasting studios; the Offices of Foreign Information Media and their reporters; publicity and advertisement; public relations; publication; distribution; journalistic services; production, sale or renting of computer programs; information studies and consultations; copying and reprography; any activity suggested to be added by the Ministry and approved by the Prime Minister.”).
. Id. (while the requirement that the individual be male is not spelled out directly, it is insinuated through the language of the article. For example, it declares “He shall be a Saudi national” and “He shall not be less than 25 years of age. . .” Also, one can assume that there is a gender requirement based on the fact that Saudi Arabia is notorious for its restrictions on women’s legal rights (or lack thereof)).
. See, e.g., RWB Appeals to King Abdullah to Pardon Jailed Citizen-Journalist, Reporters Without Borders (Dec. 9, 2014), http://en.rsf.org/saudi-arabia-rwb-appeals-to-king-abdallah-to-09-12-2014,47356.html (after Raef Badawi, a blogger and cyber-activist, was arrested for writing blog posts criticizing the lack of fundamental freedoms within Saudi society, his wife and three children fled the country. Badawi had fled Saudi Arabia at least once before his latest arrest).
. See e.g., Seven Years in Jail and 600 Lashes for Cyber-Activist, Reporters Without Borders (Aug. 6, 2013) http://en.rsf.org/saudi-arabia-seven-years-in-jail-and-600-lashes-06-08-2013,45021.html (the aforementioned Badawi was forced to leave Saudi Arabia in 2008 after the government accused him of insulting Islam online. When he later returned to the country and set up a new website, he was once again prosecuted under the Anti-Cyber-Crime Law and faced a more severe punishment).
. Freedom House: Saudi Arabia, supra note 204, at 323-25 (for example, the government prevents citizens from criticizing it online by routing all internet traffic through a state-run proxy. It also censors any information it deems blasphemous).
. Reporters Without Borders, World Press Freedom Index 2013 (2013), available at http://fr.rsf.org/IMG/pdf/classement_2013_gb-bd.pdf. (Turkey was ranked 154, while Jordan was ranked 134. The United States came in at 32. RWB uses surveys to calculate its rankings, and looks at six different indicators in order to determine a country’s final score. These indicators include media independence, environment and self-censorship, pluralism, transparency, infrastructure, and legislative framework).
. Id. (for example, the King Abdulaziz City for Science and Technology, which is the governmental body responsible for monitoring and filtering internet content, explains in detail on its website what speech it filters, why it filters it, and how it filters it. Filtered materials are those that are considered “of an offensive or harmful nature to society” and “which violate the tenets of the Islamic religion or societal norms.” Nunziato argues that this is evidence that the government is “clear about the mechanism by which it effectuates this filtering.”).
. Introduction to Content Filtering, Internet Services Unit, King Abdulaziz City for Science and Technology, http://www.isu.net.sa/saudi-internet/contenet-filtring/filtring.htm (last visited Dec. 7, 2014, 1:29 PM).
. Central Intelligence Agency, The World Factbook 2013-14: Jordan (Central Intelligence Agency, ed., Washington D.C. 2013) available at https://www.cia.gov/library/publications/the-world-factbook/geos/jo.html (June 20, 2014).
. Jordan: Health and Welfare, Encyclopedia Britannica (2013), available at http://www.britannica.com/EBchecked/topic/306128/Jordan/23357/Health-and-welfare#toc23359.
. Kamel Labidi, Is Jordan the latest enemy of press freedom online?, The Guardian, Aug. 21, 2010, http://www.theguardian.com/commentisfree/2010/aug/21/jordon-cyber-law-press-freedom-online.
. International Free Expression Groups Call for an End to Internet Censorship in Jordan, Reporters Without Borders, Oct. 8, 2013, http://en.rsf.org/jordan-international-free-expression-08-10-2013,45296.html (the signatories included Reporters Without Borders, Freedom House, Committee to Protect Journalists, Electronic Frontier Foundation, the Bahrain Center for Human Rights, the Arabic Network for Human Rights Information, and the I’lam Media Center for Arab Palestinians in Israel, among others. A total of 22 organizations signed the letter).
. Jordan: Publisher, Journalist Charged in State Security Court, Human Rights Watch, Apr. 25, 2012, http://www.hrw.org/news/2012/04/25/jordan-publisher-journalist-charged-state-security-court.
. Media Environment Analysis for Jordan, United Nations Educational, Scientific, and Cultural Office, Amman (last visited Dec. 7, 2014, 2:40 PM), http://www.unesco.org/new/en/amman/communication-information/capacity-development/media-environment-analysis-for-jordan/.
. Id. (the media analysis failed to elaborate on the actual explanation it had given to the Jordanian government. It did, however, say that UNESCO was working with the European Union on two projects in Jordan. One involves enhancing professional and accurate media reporting on the electoral process, and the other involves support of democracy, civil society, and media in Jordan).
. Elizabeth Barber, Why Jordan Orders Ban on 263 News Sites, Christian Science Monitor, Jun. 6, 2013, http://www.csmonitor.com/World/Global-News/2013/0606/Why-Jordan-orders-ban-on-263-news-sites.
PEMEX, PEÑA NIETO AND PETRO-CANADA: NAFTA AND MEXICAN ENERGY REFORM WITHIN THE CHANGING NORTH AMERICAN CRUDE LANDSCAPE
Table of Contents
I. Introduction………………………………………………………………….. 42
III. Free Trade…………………………………………………………………… 46
IV. Pemex…………………………………………………………………………. 46
V. Previous Reforms Of Pemex…………………………………………… 49
VI. NAFTA………………………………………………………………………… 51
VII. Energy Under NAFTA……………………………………………………..51
VIII. Foreign Investors Under NAFTA……………………………………..52
IX. The Canadian Energy Scheme Under NAFTA…………………….53
X. The Mexican Energy Regime Under NAFTA…………………….. 55
XI. The Need To Reform Pemex…………………………………………….56
XII. North American Pressures To Reform Pemex……………………56
XIII. Hydraulic Fracturing………………………………………………………56
XIV. Keystone XL…………………………………………………………………..58
XV. Peña Nieto’s Proposed Reform of Pemex……………………………59
XVI. Peña Nieto’s Reform’s Reception In Mexico………………………62
XVII. An Unanticipated Ally…………………………………………………….63
XVIII. Peña Nieto’s Reform’s Intersections With NAFTA ………….64
On January 1, 1994, the North American Free Trade Agreement (NAFTA) between the United States, Canada, and Mexico took effect. By the end of 1993, Canada produced 1.68 million barrels of crude oil per day (MBPD), exported 0.516 MBPD, and sent 83.5 percent of its crude oil exports to the United States. Nineteen years later, Canada’s crude oil production rose to 3.14 MBPD, exports rose to 1.58 MBPD, and 99 percent of its exported crude oil went to the United States. 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 of crude oil, exported 1.32 MBPD, and sent 25 percent of its crude oil exports to the United States. Yet in 2012, Mexico’s crude oil production fell to 2.59 MBPD, exports fell to 0.79 MBPD, and 48 percent of its crude oil exports went to the United States. 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.
Petro-Canada was Canada’s state-owned oil company from 1975 to 2004. 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. In response, the Canadian government turned its focus to energy security. 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. 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.
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. 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. Canadian oil exports were taxed to pay for the consumer and corporate subsidies.
Petro-Canada quickly became popular as a symbol of Canadian nationalism. However, in 1991, plummeting oil prices and new government leadership led the Canadian government to sell 30 percent of the state-owned company. 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. In 2004, the Canadian government sold its remaining share of the company for $3.2 billion, completing the privatization of Petro-Canada.
Petro-Canada’s sale yielded over $5.7 billion, and was the largest Canadian governmental privatization to date. 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.” The Canadian government views the sale of the company as a necessary action, characterizing Petro-Canada as having grown “inefficient, oversized and debt-ridden.” 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 price 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.” 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.
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. 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. 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.” NAFTA’s influence also spread south in the form of the Dominican Republic – Central America – United States Free Trade Agreement of 2004 (CAFTA-DR).  With this introduction to Petro-Canada and free trade, the discussion turns to Mexico’s oil giant, 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. This attracted the attention of the Mexican government, which claimed all mineral rights for the state as part of its 1917 Constitution. Twenty years after the Constitution was signed, strife between Mexican oil workers and their foreign managers resulted in a protracted labor strike. In 1938, Mexican President Lázaro Cárdenas, citing the 1917 Constitution, responded by expropriating all oil resources and facilities of foreign companies to create Pemex.
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 and recorded $126.6 billion in revenue. Pemex is the second largest company in Latin America, second only to Brazil’s Petrobras. 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. The survey consulted 535 business and governmental leaders, academics, media organizations, and 2,400 ordinary citizens. The survey concluded that 65 percent of Mexicans were opposed to foreign involvement in Pemex. 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.
Despite its prowess and revenue, Pemex struggles to be profitable. In 2010, with revenues in excess of $120 billion, Pemex lost $3.8 billion. 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. This is because Pemex was never treated as a profit-making endeavor. Some experts estimate that Pemex is over-staffed by as much as five-fold. 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. Pemex currently hands over around 55 percent of its earnings to the federal government. 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.
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. In the United States, the largest taxpayer in 2012 was ExxonMobil. Exxon recorded $452.9 billion in revenue and paid $31.05 billion in taxes. 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. In 2013, Pemex is estimated to produce just 2.54 MBPD. 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.” Most of the downturn can be attributed to a single field, Cantarell, which once produced 2.1 MBPD. In 2012, Cantarell produced 0.40 MBPD, 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. 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. 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. Fox appointed an external board of businessman to oversee Pemex, however, Congress objected and the board was dissolved. Fox’s government also criminally charged PRI (the opposition party) with diverting $120 million from Pemex to illegal campaign funds.
Fox attempted to improve the company and reduce his government’s overdependence on the monopoly. 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. The most important change was the four new independent, professional positions added to the board of directors. The new board seats require private sector experience as a means to increase the lacking technical qualification of the board. Prior to the reform, five of eleven board seats were reserved to the Pemex union. 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.
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.
NAFTA was enacted to promote economic competitiveness and growth by easing the movement of goods and services between its member countries. NAFTA created the world’s largest free trade area, encompassing over 450 million people who produce 17 trillion dollars of goods and services. 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.
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. However, there is still some tension surrounding NAFTA within unions and consumer advocacy groups. These groups argue that NAFTA has resulted in outsourcing and lower wages. 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. 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. 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 limited circumstances. Article 605 restricts Canada and the U.S. from imposing export controls on energy resources. In other words, Canada and the United States must maintain a proportionate supply of oil to be available for export purchase.
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.”  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. 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.
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.” The ability to initiate a binding dispute resolution process against a member government if it allegedly fails to adhere to the Agreement’s regulations 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. 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.
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 Proportionality 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.” 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.
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. 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. This is because, while western Canada produces significant amounts of crude oil, 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.
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. The energy export provisions of NAFTA resulted in the rapid growth in crude oil exports to the United States and a reduction of inter-provincial crude oil shipments. In effect, CUSFTA and NAFTA redirected the western Canadian crude oil from flowing east to flowing south. 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.
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.
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. 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.
Energy was non-negotiable for Mexico. 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.” This was an appeasement directed at Mexico. It was a coded recognition of the Mexican government’s constitutional exclusivity to mineral rights.
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.” No private investment or participation is allowed in these industries. Some private participation was accepted by the Mexican government subject to its approval. 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, passé, and approaching a decade of production declines. Despite its plentiful crude oil supply, Mexico imports 80 percent of the petrochemicals used in the country. Without reform bringing new investment and technology, Mexico will become a net importer of petrochemicals in the next decade. 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 ERI 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 ERI 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. This idea was unheard of just a few years ago. The production boom has been driven by the oil and gas industry’s use of hydraulic fracturing or “fracking” to reach previously inaccessible oil. 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.
The expansion of fracking has significantly aided the United States’ economic recovery. It also reduces the United States’ dependency on oil imports. Still, fracking is controversial. Many submit that the technique contaminates ground water and can cause small earthquakes. France and Bulgaria are the only countries with national bans on fracking. However, there is regional resistance to the technique in Western Europe and the northeastern United States. Still, many countries are eager to jump on the fracking bandwagon as a means to grow their economies and energy production.
Fracking has opened significant new supplies of oil in the U.S. and changed the domestic market. In California, fracking has led to what is being called a “new gold rush.” The massive, untapped oil reserves of the Monterey Shale formation in Central California are estimated to contain over 15 billion barrels of oil. This is five times as much as the Bakken Shale formation in North Dakota. The California legislature responded with the state’s first piece of fracking legislation.
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. 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.
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. 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. With a Presidential Permit in 2013, the Keystone XL Pipeline could be operational by 2015. The pipeline will have capacity to transport 830,000 barrels of crude oil per day to Gulf Coast and Midwest refineries. This would reduce U.S. dependence on oil from South America and the Middle East by up to 40 percent.
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.” 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 XL is built, the U.S. will see oil prices go up. 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. 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.” 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. The ERI aims to improve Pemex’s transparency, increase competitiveness, and leverage the best practices and technology of private companies. 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. The first element of the ERI permits Pemex to sign profit sharing contracts with the private sector “where appropriate to the national interest.” The goal is to leverage private companies’ best practices and technologies. This reform will help Pemex “generate cheaper energy for all Mexican families” while the state maintains “absolute control of the oil.”  The private contracts are profit-sharing only. All ownership of the oil would remain Mexican. Private industry commentators welcome the proposed change but believe the reform does not go far enough. 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.” As previously noted, private involvement in Pemex is opposed by 65 percent of Mexican citizens. 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.” As noted above, Pemex is taxed at a much higher rate than other private and state-owned oil companies. 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.”
Currently, over half of Pemex’s tax bill comes as an annual fee based on oil and gas proceeds. “The proposed reform would reduce [that] rate from 71.5 percent to 60 percent in 2015 and then to ten percent in succeeding years.” The ERI introduces a new royalty scheme indexed to market fluctuations and shifts Pemex onto Mexico’s 30 percent corporate income tax rate.
The ERI’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,” further stating, “[a]ctually, they don’t reduce the tax burden on Pemex,. . . [t]hey change the structure.” 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 ERI reorganizes Pemex into two divisions: 1) Exploration and Production, which focuses on oil and gas extraction; and 2) Industrial Transformation, which includes the refining business. This element attempts to address Pemex’s structural inefficiencies.
The fourth element of the ERI 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.” 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. Chevron stated that it welcomes any decision by Mexico that provides new investment possibilities. Shell also expressed measured optimism stating that “Mexico could benefit from working with energy companies.” 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, a position it lost in the past decade with the rise of China and Brazil. In the “honeymoon” phase of his six-year term, Peña Nieto has taken advantage of his popularity and political capital. Peña Nieto has already taken on entrenched interests and powerful unions through his EducationReform. The education reforms were signed into law on February 25, 2013, despite opposition from the teacher’s union. The teacher’s union is the second most powerful union in Mexico, second only to Pemex.
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. 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.”
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.  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.” 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. This is because Peña Nieto’s PRI party and the Pemex union are historical political allies. Perhaps more importantly, the competing PAN energy reform proposal, seeks to dissolve the Pemex Union. 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[.]”
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.  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. The main risk of the current model, and Keystone XL future, is the possibility of oil spills along pipelines and railways. A pipeline spill would pollute air and water supplies and harm migratory birds and other wildlife. “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.”
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, 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 ERI, 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 ERI blurs this bright-line 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 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 the 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.
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.” Over this period, the Mexican gross domestic product grew by 46 percent. 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 ERI 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 cite to the goal of enhancing the role of energy “through sustained and gradual liberalization.” 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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. Folsom, supra note 83, at 106-07.
. Id. at 107; NAFTA: Chapter Six, supra note 79.
. Folsom, supra note 83.
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. 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.
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. Scauzillo, supra note 125.
. 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.
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. About the Project: Keystone XL Pipeline, TransCanada, http://keystone-xl.com/about/the-project (last visited Mar. 28, 2014).
. 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.
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. 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.
. Mark Clayton, How Much Would Keystone Pipeline Help US Consumers, Christian Science Monitor, Mar. 9, 2012, http://www.nbcnews.com/id/46689167.
. The Presidential Energy Reform, World Law Group, (Aug. 23, 2013), http://www.theworldlawgroup.com/files/file/docs /LEGAL%20UPDATE_ The%20Presidential%20Energy%20Reform.pdf.
. 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.
. World Law Group, supra note 138.
. 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/.
. World Law Group, supra note 138.
. Id.; Herrara & Román, supra note 140.
. See generally, supra notes 133-134.
. Mexico, the Americas and the World, supra note 42 at 15.
. Id. at 23-24.
. Herrara & Román, supra note 140.
. Harrup, supra note 40.
. Herrara & Román, supra note 140.
. Garcia, supra note 52.
. Herrera and Román, supra note 140.
. See Anna Andrianova, Mexican Energy Reform: Here are the Winners, CNBC.com, Aug. 16, 2013, http://www.cnbc.com/id/100965068.
. Laurence Iliff and Juan Montes, Mexican Outlines Energy-Overhaul Plan, Djnewsplus.com, (Aug. 12, 2013), http://www.djnewsplus.com/rssarticle/SB137632547338952785.html.
. 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.
. 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.
. 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.
. 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.
. 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/.
. Laurence Iliff, Mexico Moves to Overhaul Oil Industry, The Wall Street Journal, (Aug. 12, 2013), http://online.wsj.com/news/articles/SB10001424127887324085304579008762332445236.
. 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.
. Oscar Lopez, A Giant Falls: Pemex Must Partner up for the Benefit of Mexicans, 1 Cornell Int’l L.J. Online 22 (2013).
. 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.
. 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.
. 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.
. 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.
. Mexico: Crude Oil Exports, U.S. Energy Info. Administration, http://www.eia.gov/countries/cab.cfm?fips=MX, (last updated, Oct. 17, 2012).
. 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.
. 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
II. Rodriguez v. Robbins
III. Post-Removal Cases
B. Removal Period
C. Due Process, Removal within Six Months, and “Good Faith”
IV. Race, Gender, And Prison Conditions
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. 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. 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. The appellees in the class-action lawsuit argued that prolonged mandatory detention imposed by the government, without any possibility of review, was unconstitutional. On the other side, the government argued that it was statutorily authorized to require mandatory detention with no limit on the duration of imprisonment. 
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.  These immigrants were subject to bond requirements and government supervision, including possible electronic monitoring, until an immigration judge determines their removal status.  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. 
Judge Wardlaw, writing for the panel, applied a balancing test. Citing Zadvydas v. Davis Judge Wardlaw asserted that freedom from physical restraint and imprisonment lies at the heart of the Due Process Clause.  Furthermore, the Judge cited to Denmore v. Kim  to support the proposition that “the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.”  Judge Wardlaw determined that detention must be time-limited.  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, 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.”
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.”  It determined that mandatory detention of criminal aliens with no limit on the duration of imprisonment is unconstitutional. 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.  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.” 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. Accordingly, the public interest benefits from a preliminary injunction that avoids serious constitutional questions.  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.
III. Post-Removal Cases
Rodriguez will have broad ramifications to the immigration detention system, which has exploded in the past fifteen years.  The Obama Administration’s aggressive deportation policy almost assures that more detainees will be litigating for their freedom. 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. 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.  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.
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. 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.  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, 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.
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.”  When petitioner applied for a visa approximately sixteen years later, he was arrested on the basis of the putatively outstanding deportation order.  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. 
In its analysis, Eleventh Circuit referred to the REAL ID Act‘s language and its purpose, and determined its applicability to the case facts. It opined that petitioner was bringing a constitutional challenge to his detention and impeding removal, and not seeking review of a removal order. 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. It concluded that the petitioner was not challenging “‘a final administrative order of removal’ or seek[ing] review of a removal order.”  The Court held that substantive review of the underlying legal bases by the district court is still allowed. 
The Ninth Circuit similarly held that the REAL ID Act does not bar constitutional challenges. 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.’”  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.”  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.
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.” The removal period begins (as relevant here) on “[t]he date the order of removal becomes administratively final.” 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.”
Immigration and Naturalization Act 241 governs the detention, release, and removal of aliens ordered removed. 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.”
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.” 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. DHS has the authority to release the person “without regard to the likelihood of the alien’s removal in the reasonably foreseeable future.”
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.” 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.” 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.
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.” 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.”
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? 
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.
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.  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. 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.” 
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. 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.”
In Clark v. Martinez, the Court extended its interpretation of 8 U.S.C. §1231(a)(6) to inadmissible aliens. 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.  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. 
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. 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.”
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. 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. The government claimed that he was from Jamaica; the respondent maintained that he was born in the U.S. Virgin Islands. 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.” “[H]e did not remember the names of the people who cared for him between the ages of six and twelve.” “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.” 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.”
Further, the respondent “had never claimed to be from Jamaica and did not associate with Jamaicans.” “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.” The respondent was unable to do so. 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.” 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.” In addition, BIA improperly discredited the respondent’s testimony merely because it was uncorroborated. 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.” 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. 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.”
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.
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.
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.  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.”  Therefore, having cooperated and complied with DHS’s removal efforts, Kevin should be promptly released from custody. Finally, the law entitles Kevin to release. 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. 
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, 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.  The petitioner in Mitchell did not challenge the final order of removal, but sought release from an indefinite period of custody. The petitioner contended that that his native country, Jamaica, refused to issue travel documents to him because Jamaica has no record of him.  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). 
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.”  ICE argued that the petitioner failed to cooperate by not assisting its efforts to acquire travel documents. 
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.”  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. 
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.
If the court applies the same factors applied in Rodriguez, it would find that the mandatory detention of Kevin is unconstitutional. 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.  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. 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. “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.” 
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.  Southeast Asian refugee youth from lower economic backgrounds are especially vulnerable, even though they grew up in the United States.
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. She argues that the criminal justice system crated and perpetuated a hierarchy in the United States. 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.”
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.  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.  “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.” 
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.”  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. 
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.  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.”  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.” 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.”  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. Cole implores the courts, legislatures, and police departments to eliminated or reduce the double standards.
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. Furthermore, Butler argues the Supreme Court’s criminal procedural jurisprudence pays deference to law enforcement discretion, effectively nullifying civil rights litigation on these issues.
Likewise, Professor Ian Haney Lopez critiques claims that massive racial disparities in criminal sentencing are “not racism.”  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.”  These comments highlight how incarceration and criminal law has increasingly merged with the experiences of immigration. As one commentator notes, “Mass deportation stigmatizes all Latinos in the same way that mass incarceration stigmatizes all African Americans.” 
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.  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. 
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. 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.  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.  Detainees also complained about extreme temperatures in their cells, overcrowding, and held concerns about hygiene and food.
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,  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.
. 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.
. Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013).
. See generally id.
. Id. at 1127.
. Id. at 1133.
. Id. at 1133.
. See id.
. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
. Rodriguez, 715 F.3d at 1143 (quoting Demore v. Kim, 538 U.S. 510, 526 (2003)).
. Rodriguez, 715 F.3d at 1134.
. Id. at 1144.
. Id. at 1133.
. Id. at 1137.
. Id. at 1145.
. Id. at 1145-46.
. Id. at 1146.
. Id. at 1146.
. See Maunica Sthanki, Deconstructing Detention: Structural Impunity and the Need for an Intervention, 65 Rutgers L. Rev. 447, 452-56 (2013).
. 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”).
. 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).
. 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).
. 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”).
. 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.”).
. Madu v. U.S. Attorney General, 470 F.3d 1362 (11th Cir. 2006).
. Id. at 1368.
. Id. at 1364.
. Id. at 1365.
. Id. at 1366.
. Id. at 1367-68.
. Id. at 1367.
. Id. at 1368.
. Singh, 638 F.3d at 1202.
. Id. at 1211 (citing to H.R. Rep. No. 109-74, at 175 (2005)).
. Id. at 1211 (alterations in original) (citing Casas-Castrillon v. Dept. of Homeland Security, 535 F.3d 942, 946 (9th Cir. 2008)).
. 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).
. 8 U.S.C. § 1231(a)(2) (2013).
. 8 U.S.C. § 1231 (a)(1)(B)(i) (2013); see also 8 C.F.R. § 241.4(g)(1)(ii)(2013).
. 8 U.S.C. § 1231(a)(1)(C); see also 8 C.F.R. § 241.4(g)(1)(ii).
. See 8 C.F.R. § 241.1.
. See 8 C.F.R. § 241.4; see also 8 C.F.R. § 241.13.
. 8 C.F.R. § 241.4(d)(1).
. See 8 C.F.R. § 241.4(k)(1)(i).
. 8 C.F.R. § 241.13(b)(1).
. 8 C.F.R. § 241.13(a).
. 8 C.F.R. § 241.13(b)(2)(ii).
. 8 C.F.R. § 241.13(f).
. 8 C.F.R. § 241.13(g)(1); see also 8 C.F.R. § 241.14 regarding “special circumstances.”
. See 8 C.F.R. § 241.13(e)(2).
. See generally Zadvydas, 533 U.S. at 690-93.
. 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.”).
. See Zadvydas, 533 U.S. at 699-90.
. Id. at 684-86.
. Id. at 701.
. See Stephen Breyer, Making Our Democracy Work: A Judge’s View, 102-03 (2010).
. Id. at 105.
. Clark v. Martinez, 543 U.S. 371 (2005).
. Id. at 386.
. 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.”).
. 8 C.F.R. § 241.4(g)(1)(ii).
. Cheek v. United States, 498 U.S. 192, 202 (1991).
. 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).
. Murphy v. INS, 54 F.3d 605, 612 (9th Cir. 1995).
. Id. at 607.
. Id. at 610.
. Murphy, 54 F.3d at 611.
. Id. at 612.
. 8 U.S.C. § 1401(f).
. 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).
. See Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995) (holding that denial of benefits was not supported by substantial evidence).
. Zadvydas, 533 U.S. at 701.
. 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).
. 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.”).
. Mitchell v. Gonzales, No. 4:06cv333-WS, 2007 WL 121348, at *1-3 (N.D. Fla. Jan. 12, 2007).
. Id. at *9.
. Id. at *3.
. 2007 WL 121348, at *2.
. Id. at *3.
. Id. at *8
. Id. (citing Zadvydas, 533 U.S. at 690, 699-700).
. 2007 WL 121348, at *7.
. See Rodriguez, 715 F.3d at 1144.
. See id. at 1145.
. 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).
. 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).
. See Johnson, supra note 105, at 34-35
. 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).
. Id.at 162.
. 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.”).
. See Alexander, supra note 110, at 16.
. Id. at 135.
. Id. at 136.
. 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.”).
. Alexander, supra note 110, at 94.
. David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 5 (1999).
. Id. (emphasis in original).
. Id. at 9.
. Id. at 8.
. Id. at 8.
. Id. at 142.
. Id. at 153.
. Id. at 188.
. Paul Butler, One Hundred Years of Race and Crime, 100 J. Crim. L. & Criminology 1043, 1058 (2010).
. See Ian F. Haney López, Is the “Post” in Post-Racial the “Blind” in Colorblind?, 32 Cardozo L. Rev. 807, 817 (2010).
. Id. at 816.
. 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).
. Daniel I Morales, It’s Time For An Immigration Jury, 108 Nw. U. L. Rev. Colloquy 36, 36 (2013).
. See Rabin, supra note 104, at 702.
. ACLU, Holiday on ICE: The U.S. Department of Homeland Security’s New Immigration Detention Standards, 9 (Mar. 28, 2012).
. See ACLU of Georgia, Prisoners of Profit: Immigrants and Detention in Georgia 110 (2012).
. Id. at 13-14.
. Id. at 14-15.
. Id. at 16-17.
. 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*
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
“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
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 through the Gacaca Courts, the most well-known homegrown initiative in Rwanda, and Abunzi, the mediation system that is essentially the successor of the Gacaca Courts. Both Gacaca and Abunzi serve as significant evidence that homegrown initiatives in Rwanda provide a successful balance between a modern 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. 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. While countless acts of violence occurred during the three months of genocide, the international community did very little to intervene. 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. Because the international community had, with few exceptions, generally turned a blind eye to the atrocities of the genocide, 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.
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. 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.
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. 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. 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.
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, 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. 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. There has recently been a push in the United States to utilize mediation more and to incorporate non-adversarial methods in mediation. 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. 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. 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.”
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. At that time, Rwanda had achieved some degree of political stability and had begun to revive the economy. 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:
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.
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.” 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. 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.
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. 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’”.
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. 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. 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. 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. 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. 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. 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.
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”
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. Homegrown initiatives focus on unifying the people and granting them a higher level of access to, and involvement in, the justice system.
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. 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. 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.” 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. 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.
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. 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. 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,”
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. 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.
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. When the Gacaca Courts were established in 2002 to assist the International Criminal Tribunal for Rwanda in trying the participants of the genocide, the Courts were a synthesis of the traditional Gacaca and the modern rule of law. 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 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. 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. 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. 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.” 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.
Gacaca did produce challenges, but the good outweighed the bad, especially in the absence of a feasible alternative. 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”
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 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.
Now that the Gacaca Courts have closed, 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. 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. 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.
“Abunzi” translates literally to “those who reconcile.” 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.” 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.
In addition to the Constitution, a complementary Organic Law also mandates Abunzi. 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. 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:
Suggested clauses for future Dispute
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.
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.
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. 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. The criticisms that decentralizing the justice system promotes coerced peace-building and makes the Abunzi mediation system inefficient 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.
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. 
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. 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. 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. 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.
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.
. 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].
. 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.
. 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.
. Id. at 32.
. 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.
. Conflict Resolution, supra note 1.
. 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).
. 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.
. 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).
. Rwanda Vision 2020, supra note 9.
. 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.
. 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.
. 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.
. Haverman, supra note 3, at 29.
. See Rwanda Vision 2020, supra note 9.
. 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).
. 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].
. See, e.g., Wash. Rev. Code § 64.55.120 (2010) (requiring mandatory mediation for property disputes).
. 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).
. See id. at 260-61.
. See Haverman, supra note 3, at 32-34 (discussing the successes of the Abunzi).
. Rwanda Vision 2020, supra note 9, at 6.
. Id. at 6-7.
. Id. at 6.
. Id. at 12, 14.
. Id. at 6.
. 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.
. Constitution of the Republic of Rwanda May 26, 2003, art. 1.
. 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).
. Id at 1045.
. See generally U.S. Const.
. Constitution of the Republic of Rwanda May 26, 2003, arts. 16, 33, 37, 46, 53, 54.
. 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).
. 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.”).
. 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.
. G.A. Res. 61/17, ¶ 2, U.N. Doc. A/61/PV.59 (Nov. 28, 2006).
. 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).
. See generally Abunzi Mediation, supra note 18 (discussing the decentralization of justice in Rwanda).
. Id. at 1.
. Id. at 2.
. 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.
. Christopher C Joyner, Reconciliation as Conflict Resolution, 8 N.Z. J. Pub. & Int’l L. 39, 39-40 (2010).
. See Haverman, supra note 3, at 29-32.
. 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
. 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.
. Michelle Ciurria, Complicity and Criminal Liability in Rwanda: A Situationist Critique, 17 Res Publica 411, 417-18 (2011).
. Id. at 417.
. 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.
. Ciurria, supra note 51, at 414.
. Musoni, supra note 53.
. Ciurria, supra note 51, at 418.
. 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).
. Asiimwe & Kimenyi, supra note 49.
. 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.
. Asiimwe & Kimenyi, supra note 49.
. 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).
. 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].
. Musoni, supra note 53.
. See Case of Abunzi Mediators, supra note 63, at 42.
. Id. at 62.
. Id. at 46.
. Id. at 54.
. Constitution of the Republic of Rwanda May 26, 2003, art. 159.
. 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)).
. Calkins, supra note 17, at 267.
. See Model Clauses, Kigali International Arbitration Centre, http://kiac.org.rw/model-clauses (last visited Jan. 26, 2014).
. Calkins, supra note 17, at 268.
. Abunzi Mediators, supra note 18, at 1.
. Conflict Resolution, supra note 1.
. Abunzi Mediators, supra note 18, at 1.
. See generally Banks, supra note 32.
. Rwanda Governance Board, Innovation Abunzi, http://www.rgb.rw/main-menu/innovation/abunzi.html (last visited Feb. 17, 2014).
. Robert E. Marguiles, Food for Thought: Why Should My Client Mediate?, 269-APR N.J. Law 14, 14 (2011).
. See Deborah R. Hensler, Suppose It’s Not True: Challenging Mediation Ideology, 2002 J. Disp. Resol. 81, 96 (2002).
. See Calkins, supra note 17, at 266-67.
. See Marguiles, supra note 81, at 14.
. 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
I. SETTING THE STAGE: THE UNANSWERED ANTECEDENT QUESTION
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?
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
“‘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.’”
From former President Bush’s initial military order (M.O.) establishing the Guantanamo Bay military commissions to the increasingly heated forum battle between the Obama Administration and Congress, the use of commissions has proven problematic politically and diplomatically, and, some argue, perhaps undermined the Administration’s ultimate detention purposes. 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, as Congress purported to do under the 2006 and 2009 Military Commissions Act (“MCA”).
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. 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. Left unaddressed, this extension dramatically changes the scope of the military commissions 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. 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.” Despite the MCA’s clear text to the contrary. 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.” 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 of al Bahlul v. United States—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. 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
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. 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, which the Constitution articulates in Article I, and also that constitutional separation of powers requires that such limits remain. 
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.” 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. After being detained for two years without trial, Hamdan was charged with two claims of conspiracy “to commit . . . offenses triable by military commission.” 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. 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. 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.” Justice Stevens concluded that neither the historical record, nor Supreme Court precedent, nor scholarship, nor current international sources consider conspiracy a war crime.
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. 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. In other words, conspiracy could be triable by military commission if Congress had explicitly said so in 10 U.S.C. § 821, 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.”
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. The commissions were authorized to exercise jurisdiction over “any alien unprivileged enemy belligerent” whose offense was committed “before, on, or after September 11, 2001.” 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.”
“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.”
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. Even the government so recognizes. 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, his Detention Policy Task Force 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. 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. 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.
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. 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, Congress eliminated funding for the detainees’ transportation. This “effectively made military commissions the only viable option for trying Guantanamo detainees. . . for the foreseeable future.”
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. 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. 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.” Most trials by military commission settled by plea bargain, 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. In January 2013, the D.C. Circuit vacated per curiam al Bahlul’s conviction after the government conceded Hamdan II controlled. 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, 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—did not authorize retroactive prosecution of war crimes that were not prohibited at the time of their commission. In reaching this conclusion, Judge Kavanaugh argued that Congress had intended (per its stipulations) 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.”  This was, perhaps, a clear inversion of Congress’ intent in enacting the MCA. 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.
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.” 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. 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, the court held: “We do not decide that antecedent question.” 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.” 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.” 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.
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. 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.”
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. 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, 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, 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, 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.” 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
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, 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. 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. 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. 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. Even the U.S. Army Manuals provide that the law of war is comprised of customary international law and treaties since 1956. Nonetheless, the two questions raised in the en banc grant specified “international law of war,” 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 and custom. The latter is a type of common law; it is predicated on the “general and consistent practice” of nations. 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.” 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].”
Still, though invoked rarely, military commissions have been used in three situations historically. The third type, which is “utterly different” from the former two — 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.” 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. Justice Stevens dubbed such tribunals “law-of-war commission[s].” This is concededly the type of commission operating in the post-9/11 context.  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”—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”). 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” were the very first military commissions.
The second most significant change in military commission history was introduced by the Lieber Code. 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].” Modern day commissions (in the United States and abroad) can trace their lineage directly to the Lieber Code; it was the first formal authority granting military commissions subject matter and personal jurisdiction to try violations of the laws of war, specifically.
Thus, this law-of-war origin is the commissions’ distinguishing factor from other criminal prosecution. Professor Corn, in his article preceding the 2006 MCA, supported the constitutionality of the Bush tribunals because they were a “distinct, legitimate, and historically recognized mechanism for enforcing the law of war.” 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. Both Congress and the Supreme Court tied that jurisdiction directly to the law of war. 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.It did not evolve from specific Congressional grants; rather, it evolved as “a pragmatic gap-filler” to the jurisdiction of courts-martial. In fact, Congress did not codify the tribunals until its 1916 revision of the Articles of War. 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” 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.”
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 . . . .” 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.
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. Indeed, this is the interpretation that Justice Stevens partially exercised in Hamdan I. 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. 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.
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.
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, the MCA’s extension over the triable offenses is diametrically opposed to one-hundred-and-fifty years of established history and precedent.
William Winthrop—dubbed the Blackstone of military law—notes several “preconditions” that have developed for military commission jurisdiction in his influential treatise. 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.” 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.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.” 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.
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. 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.”
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,” 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.
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. Review of the legality of men’s execution “produced the longest debate ever to take place in the thirty-year history of the Congress.” 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. 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.”
This requirement is also why law-of-war commissions may only exercise authority over aliens who have committed an unlawful act of war. 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. 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. The MCA’s application seems further removed here since it incorporates the view that all acts committed by “unprivileged belligerents” are war crimes, 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. 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. 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. 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.” 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). 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.” 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. 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. The Court also deliberately identified a complete, overt war crime in Ex parte Quirin, and, tellingly, never reached the conspiracy charge also at issue.
Secondly, similar to the Court’s analysis of the cause of action in Sosa v. Alvarez-Machain and its progeny in the Alien Tort Statute context, the offense must be universally recognized as a violation of the law of war. 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. And this case set the “high-water mark of military power to try enemy combatants for war crimes”—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.
The only crimes that could be comparable to the MCA’s newly triable offenses are, perhaps, aiding the enemy and spying. 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.” 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. Finally, aiding and abetting a declared violation of the law of war, understandably, may itself be considered an international-law crime. Mere membership in a criminal group—even al Qaeda—does not result in a similar level of liability.
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. 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.
b. Not federal crimes
Though violations of the law of war are frequently tried in federal court, the reverse is never true: military commission must never try those accused of federal crimes when federal courts are operating. 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.” 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.
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. 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.
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.” 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.”
Even military lawyers have repeatedly clashed with Congress and government lawyers over the law-of-war commissions. 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[.]” 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. 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.” 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; the commission must exist within Constitutional limits, or it risks posing a “[danger] to liberty if not confined within its essential bounds.” 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”). 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” in its assistance of the Commander-in-Chief duties. 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.” 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.”
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. 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 . . . .” 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.” 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. Soon after, he joined al Bahlul’s defense counsel in asking the military commission judge to dismiss the stand-alone charge.
2. The Legislative branch
Over time, the Supreme Court required Congress to authorize and ordain the establishment and jurisdiction of the military commissions. The authority is found, primarily, through the “Declare War” clause and the “Define and punish offenses . . . against the law of nations” clause, as well as its increasingly expansive authority to “constitute tribunals inferior” to the Supreme Court. 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. 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.”
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. That changed when the Court began reviewing jurisdictional decisions as early as the Civil War. 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. But, in light of Erie and reverse-Erie doctrines, the contention that federal and state law operates in entirely foreign spheres is untenable. 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.
Secondly, the courts have always possessed and acted upon the authority to rule on the jurisdiction of military commissions pursuant to Marbury v. Madison. In fact, the only tribunals it has declared unconstitutional were based on lack of jurisdiction over the person or the offense. 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.
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.” 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. 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.” This is “essential to the preservation of liberty.” 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. 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[.]” In the past, this deference to the political branches has resulted in severe harm. For instance, in Korematsu 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.
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. 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. 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. 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.”  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.
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. 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[.]” 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. But the Court in Commodity Futures Trading Comm’n v. Schor 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. 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. 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. 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.”
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, especially where the federal courts’ review is not meaningful.
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.” 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.
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.
. John Fabian Witt, Lincoln’s Code: The Laws of War in American History 101 (2012) (quoting Congressman Cobb).
. 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”).
. 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.
. 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).
. The law of war is commonly understood as the international law of war. See infra Part II.B.
. 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).
. 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.
. 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.
. 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/.
. Hamadan II, 696 F.3d at 1238.
. 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.”
. 10 U.S.C. § 948a (authorizing jurisdiction over offenses that were “committed before, on, or after September 11, 2001”).
. Hamdan II, 696 F.3d at 1246.
. 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].
. 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).
. 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).
. 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).
. 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.”).
. U.S. Const. art. I, § 8, cl. 10.
. U.S. Const. art. I § 8, cl. 18.
. U.S. Const. art. I, § 8, cl. 10.
. 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.
. Id. at 566.
. Id. at 613.
. 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.”).
. Hamdan I, 548 U.S. at 596-97 (emphasis added).
. Id. at 598-613.
. Id. at 601-02.
. Id. at 602.
. 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”).
. Hamdan I, 548 U.S. at 691.
. 10 U.S.C. § 950(t)(25), (29).
. 10 U.S.C. § 948c.
. 10 U.S.C. § 948d.
. 10 U.S.C. § 950p(d) (2006).
. See supra text accompanying note 8.
. 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”).
. 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).
. Created by Exec. Order No. 13493, Review of Detention Policy Options, 74 Fed. Reg. 4901 (Jan. 22, 2009).
. 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.
. Id. at 4.
. 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.”).
. 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).
. 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.
. Jennifer K. Elsea, Cong. Research Serv., R40932, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court 3 (2013).
. United States v. Hamdan, 801 F. Supp. 2d 1247 (C.M.C.R. 2011) (en banc).
. United States v. al Bahlul, 820 F. Supp. 2d 1141 (C.M.C.R. 2011) (en banc).
. Id. at 1172.
. 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).
. Hamdan II, 696 F.3d at 1241.
. Order to Vacate Petitioner’s Convictions by Military Commission, al Bahlul, 2013 WL 297726 (No. 11-1324).
. 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.
. See supra Part I. C.
. 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”).
. See 10 U.S.C. § 950p(d) (2009) and § 950p(a)-(b) (2006).
. Hamdan II, 696 F.3d at 1247-48 (emphasis in original).
. 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).
. 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/.
. Hamdan II, 696 F.3d at 1248.
. Id. at 1253.
. 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”).
. 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].
. 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.
. 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.”).
. 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.
. Rozenshtein, supra note 9.
. 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.
. 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.”).
. See Order Granting En Banc Rehearing, supra note 60 (Question 1).
. Id. (Question 2).
. 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).
. Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of Military Governance In a Madisonian Democracy, 70 Geo. Wash. L. Rev. 649, 768 (2002).
. 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).
. Harold L. Kaplan, Constitutional Limitation on Military Commissions, 92 U. Penn. L. Rev. 272, 272 (1944) (citation omitted).
. 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.”).
. Alexander, supra note 69, at 1143.
. 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.
. U.S. Dep’t of Army, Field Manual 27-10, The Law of Land Warfare sect. III para. 505(e) (1956).
. Order Granting En Banc Rehearing, supra note 14.
. Neither conspiracy nor material support are acknowledged in international treaties.
. Restatement (Third) Of Foreign Relations Law Of The United States § 102(2) (1987).
. Turley, supra note 74, at 719-20.
. Alexander, supra note 69, at 1118.
. 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.
. 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.
. 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.”).
. Hamdan I, 548 U.S. at 596(quoting Ex parte Quirin, 317 U.S. at 28-29).
. Id. at 597.
. Guantanamo Bay Naval Base is occupied under treaty rights, not military law.
. Bickers, supra note 87, at 912.
. 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.
. 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)).
. David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5, 41 (2005).
. 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).
. See Hart, supra note 94, at 36-38.
. 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).
. Corn, supra note 16, at 814.
. Id. at 823 (emphasis added).
. See infra Part II.E.
. See infra Part II.E.
. Hamdan I, 548 U.S. at 590. The Constitutional authority for the commissions is discussed below.
. David Glazier, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission, 89 Va. L. Rev. 2005, 2010 (2003).
. 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”).
. 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).
. 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).
. 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.
. 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.
. 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.”).
. See Hamdan I, 548 U.S at 601-02.
. Ex parte Quirin, 317 U.S. at 1.
. Id. at 28 (emphasis added).
. 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”).
. 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”).
. 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.”).
. See generally Winthrop, supra note 86. The government agrees these describe accurately the law governing the commissions. Hamdan I, 548 U.S. at 598.
. Corn, supra note 16, at 814.
. See Hamdan I, 548 U.S. at 590 (finding that the military commissions were “born of military necessity”).
. Hart, supra note 92, at 15-17.
. Ex parte Quirin, 317 U.S. at 28-29.
. S.Rep. No. 130, 64th Cong., 1st Sess., 40 (1916).
. Hamdan I, 548 U.S. at 607.
. 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.”).
. Kaplan, supra note 76, at 273.
. Witt, supra note 1, at 100.
. Glazier, supra note 93, at 30.
. Ex parte Milligan, 71 U.S. at 140.
. 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”).
. 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.
. Corn, supra note 16, at 836.
. I.e., combatants not entitled to ordinary prisoner-of-war protections or immunities.
. 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).
. Hamdan I, 548 U.S. at 597-600 (considering time and place deficiencies).
. Order Granting En Banc Rehearing, supra note 14.
. 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).
. Turley, supra note 74, at 692.
. Bickers, supra note 87, at 922-23.
. Winthrop, supra note 84, at 841.
. Hart, supra note 94, at 17.
. 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.
. Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
. 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.
. 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”).
. Hamdan I, 548 U.S. at 597.
. 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.
. See Hamdan II, 696, F.3d at n.6.
. 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.
. Elsea, supra note 67, at 14.
. 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.
. Fletcher, supra note 25, at 446.
. Witt, supra note 1, at 127.
. Id. at 25.
. 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).
. See, e.g., Ex parte Milligan, 71 U.S. 2.
. 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).”).
. Corn, supra note 16, at 822-23.
. Vladeck, supra note 16, at 300.
. 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)).
. James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. l. rev. 643, 758 (2004).
. Id. at n.540.
. Charlie Savage, Who Decides the Laws of War?, N.Y. Times, January 26, 2013.
. Charlie Savage, U.S. to Press Fight of Detainee’s Appeal, N.Y. Times, Jan. 9, 2013.
. Hamdan I, 548 U.S. at 567.
. 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”).
. 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.”).
. Memorandum from the Detention Policy Task Force, supra note 41 at 3.
. Turley, supra note 74, at 665.
. Winthrop, supra note 86, at 49.
. Id. at 831.
. Vladeck, supra note 16, at 301.
. Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L. J. 1259, 1270 (2002).
. Turley, supra note 74, at 766.
. Savage, supra note 164.
. Rozenshtein, supra note 9.
. 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.”).
. 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.
. U.S. Const. art. I, § 8, cl. 9.
. 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).
. Military Commissions, 11 Op. Att’y Gen 297, 300-01 (1865).
. Winthrop, supra note 86, at 50.
. Ex parte Milligan, 71 U.S. at 2.
. Turley, supra note 74, at 690 (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)).
. Id. at 682. (Even “[d]eference to the military . . . masks a more active role in shaping [the military justice] system.”)
. See generally Ex parte McCardle, 74 U.S. 506 (1868).
. 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.”).
. Marbury v. Madison, 5 U.S. 137, 138 (1803).
. Baldrate, supra note 107, at 4-5.
. Ex parte Milligan, 71 U.S. at 136.
. Hamdan I, 548 U.S. at 655.
. 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.
. The Federalist No. 51 (Alexander Hamilton or James Madison).
. Turley, supra note 74, at 767.
. Savage, supra note 164.
. Korematsu v. United States, 323 U.S. 214 (1944).
. Turley, supra note 74, at 767.
. Geoffrey S. Corn, Questioning the Jurisdictional Moorings of the Military Commissions Act, 43 Tex. Int’l L.J. 1, 35 (2007).
. Id. at 36.
. 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.
. Savage, supra note 164.
. 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.”).
. 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.
. 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.
. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986).
. Northern Pipeline Construction Co., 458 U.S. at 66.
. See supra note 134 and accompanying text.
. See supra note 69 and accompanying text.
. Turley, supra note 72 at 768.
. See Commodity Futures Trading Comm’n, 478 U.S. 833 .
. See supra Part I. C.
. Turley, supra note 74, at 687.
INTERNATIONAL EXTRADITION AND THE AMANDA KNOX CASE: WHAT IS A “CONVICTION” ANYWAY?
Rick Gene Boepple Jr.*
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
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
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. 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. 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. 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.
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.
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. Following the appellate court’s decision, the Seattle native was practically carried out of the courtroom, her eyes flooded with tears.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. The Court of Cassation’s decision has left many lingering questions with those unfamiliar with international law and the Italian criminal justice system.Probably the most frequent question by Americans though, given the adherence of the United States to the legal doctrine colloquially known as “Double Jeopardy,” 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.
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.”While there exists some guidance under Title 18 of the United States Code,the federal government’s law for the procedures of international extradition of American citizens is governed predominately through treaties made with foreign governments.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.“[Therefore], a treaty mandate to extradite ‘persons’ without exception requires the extradition of American citizens.”
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. This means the Secretary of State may make the decision to extradite an American citizen if “national interest dictates.” 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. 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. 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.”
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. 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. Additionally, the federal government opposes bond for all fugitives arrested for extradition.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. 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.The Secretary of State may then choose whether to extradite the fugitive pursuant to his or her own discretion mentioned above.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.The district court’s decision whether to issue the writ is appealable by the wanted individual.
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.President Ronald Reagan signed the treaty with Italy on October 13, 1983, and it entered into force on September 24, 1984.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. 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.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.”
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.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.”This provision, though straightforward from an American attorney’s point of view, 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.” This provision, colloquially referred to as the “Double Jeopardy” Clause, has been an axiomatic doctrine in American jurisprudence.However, its roots in the English Common Law are unknown.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.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.
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. After the American Revolution however, very few states included in their state constitutions a bar against Double Jeopardy, the exception lying with New Hampshire. 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.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.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. 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.’ “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. 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).’ “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. 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. 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. During this phase, prosecutors gather evidence proving guilt as well as exculpatory evidence to present to the judges in the preliminary hearing phase. Once the prosecutor has concluded the investigation, the defendant is given notice of the charges brought against him or her.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.
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.”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.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.”This dismissal, however, does not prevent the case from being reopened at a later date.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.
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”). 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.“At this moment, under Italian law (art. 405 c.p.p.) the person under investigation formally becomes a ‘defendant’ (imputato).” 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.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.
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.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).If no plea deal is reached and the “gup” grants the prosecutor’s request, then the parties move on to the trial phase.
iii. The Trial Phase: dibattimento
Under inquisitorial-type systems, typically there are no juries but only a judge or judges who decide the outcome.The Italian courts have created a hybrid judicial deliberation system for serious offenses such as murder. 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.All eight determine the factual and legal issues of the case.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.’ “These opinions can span hundreds of pages and detail the deliberations for the appellate courts.
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. This new procedure requires that the parties present the evidence at trial, 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.The notion is based on the “principles of orality.”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.
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.After these have been resolved, the parties then present their opening statements with the prosecutor going first.Once opening statements are complete, the prosecutor presents evidence first to the court, and the defendant goes last. 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.”Finally, after the parties produce all evidence before the court, they present their closing arguments in the same order as the opening statements.“[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”, 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. 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.Additionally, under dichiarazioni spontenee dell’imputato, the defendant is allowed to speak out and challenge a witness’ testimony at any time during the trial.
iv.The Italian Appellate System
Italian appellate review plays a core function in the country’s criminal justice system.Unlike the American appeals process where trials can only be appealed on narrow questions of law,Italian intermediate appellate courts (corte di assise d’appello) review de novo both questions of fact and of law.The Italian intermediate appellate courts act as “a second complete adjudication of both the factual and legal issues.”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.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.”
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.However, unlike the intermediate appellate courts, all inquiries made by the Court of Cassation are limited to questions of law.The Court of Cassation may overturn, fully or partially, the lower courts’ decisions and remand the case back down for a retrial.Should the case be remanded for retrial, the lower courts must abide by the legal conclusions of the Court of Cassation.
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.The murder shocked the village of Perugia, a small college town in the heart of Italy, and the international community.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.Since it was a national holiday weekend, both Kercher’s Italian roommates were out of town on the night of the murder.Only Knox and her then boyfriend, Raffaele Sollecito, whom she had only known for a week before the murder, were in Perugia.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.
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. 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.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. 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.She claimed that, “the two had cooked dinner around 9 p.m., watched a film, smoked marijuana, had sex, and gone to bed.”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.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.
Adding more holes to Knox’s alibi were eyewitness’ testimony and electronic evidence regarding Sollecito’s computer and phone.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. 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. 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, and that his phone was turned back on at around 6 a.m., showing that he was awake before 10:30 a.m.All this evidence was used by the prosecution to challenge Knox and Sollecito’s alibi.
Finally, the prosecution heavily relied on DNA evidence to convince the Court of Knox and Sollecito’s involvement in Kercher’s murder.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. 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. The prosecution ultimately argued that Guede, Knox and Sollecito were all three accomplices in the murder. 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.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.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.
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.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.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.
Among some of the most important new evidence presented was that of independent forensic experts who retested the DNA evidence from the first trial.This new evidence concluded that the DNA results from prior testing were likely derived from contamination by improper care and collection from the police.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.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.”
Amanda Knox’s acquittal by the appellate court was subsequently overturned by the Court of Cassation and ordered the case remanded for retrial. If Italy seeks Knox’s extradition and a conviction in absentia is reached, 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.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. This is apparent due to the American appellate structure where only questions of law may be appealed.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.
On the other hand, while Italy applies the same presumption of innocence until proven guilty, 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. This difference in the legal significance of both terms lies in the difference of each country’s respective appellate structures. 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. 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.Thus, a conviction or acquittal in Italy becomes definitive or “irrevocable” once all legal means of appeals have been exhausted. 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.
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,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.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. 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.While this provision parallels the American prohibition against “Double Jeopardy,” given Italy’s criminal procedure, the question in determining whether Amanda Knox is extraditable is whether she was in fact ever acquitted or convicted.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. 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?
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,” 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,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.” 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 soilSuch 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. This could result in a public relations nightmare for those involved in the decision whether to extradite Knox.
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.”
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. 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.
 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.
 See id.
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).
 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.
 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.
 See id (photo by Tiziana Fabi).
 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.
 See U.S. CONST. amend. V.
 18 U.S.C. § 3196 (2006).
 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.
 See generally, 18 U.S.C. §§ 3181-3196 (2006).
 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)).
 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”).
 Id. (citing Charlton v. Kelly, 229 U.S. 477 (1913)).
 See 18 U.S.C. § 3196 (2006); see also 9B Fed. Proc., L. Ed. § 22:2351.
 9B Fed. Proc., L. Ed. § 22:2351.
 Id. (citing Valentine, 299 U.S. 5).
 Id. (citing Gouveia v. Vokes, 800 F. Supp. 241 (E.D. Pa. 1992)).
 U.S. Dep’t of Justice, supra note 11, at § 9-15.700.
 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).
 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 . . . ”).
 U.S. Dep’t of Justice, supra note 11, at § 9-15.700.
 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).
 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”).
 Id. (see Article VI).
 Extradition Treaty, supra note 30, at Article VI.
 Id. (emphasis added).
 Provision resembles closely the “Double Jeopardy” principle articulated in the United States Constitution. See U.S. Const. amend. V.
 U.S. Const. amend. V.
 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).
 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).
 Id. at 219.
 Id.; see also 4 William Blackstone, Commentaries at 329-330.
 Mack, supra note 39, at 221.
 Id. at 221.
 See id. at 222. (“After congress adopted and the states ratified this constitutional right, 120 years of judicial interpretation began”).
 Id. at 219.
 Mirabella, supra note 3, at 231-233.
 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)).
 Id. (quoting Ennio Amodio, The Accusatorial System Lost and Regained: Reforming Criminal Procedure in Italy, 52 Am. J. Comp. L. 489, 490 (2004)).
 Id. (quoting Stephen P. Freccero, An Introduction to the New Italian Criminal Procedure, 21 Am. J. Crim. L. 345, 362 (1994)).
 Id. at 234.
 Mirabella, supra note 3, at 234.
 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”).
 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)).
 Id. at 234-235.
 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)).
 Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 Am. J. Comp. L. 227, 234 (2000).
 Mirabella, supra note 3, at 234-235.
 Id. at 235.
 Grande, supra note 59, at 234.
 Mirabella, supra note 3, at 235.
 Grande, supra note 59, at 234.
 Id. at 241.
 Id. at 242-43.
 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.
 Mirabella, supra note 3, at 236.
 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)).
 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 . . . ”).
 Grande, supra note 59, at 243; see also Mirabella, supra note 3, at 235.
 Mirabella, supra note 3, at 235.
 Id.; see also Grande, supra note 59, at 243.
 Mirabella, supra note 3, at 235.
 Grande, supra note 59, at 243.
 Id. at 244.
 Id. at 247.
 Mirabella, supra note 3, at 235.
 Id. (citing Grande, Supra note 59, at 245).
 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.
 Mirabella, supra note 3, at 253.
 Stephen P. Freccero, An Introduction to the New Italian Criminal Procedure, 21 Am. J. Crim. L. 345, 379 (1994).
 Freccero, supra note 92, at 381.
 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.
 Mirabella, supra note 3, at 239.
 Ian Fisher, Grisly Murder Case Intrigues Italian University City, (Nov. 13, 2007), http://www.nytimes.com/2007/11/13/world/ europe/13perugia.html.
 Candace Dempsey, Murder in Italy: The Shocking Slaying of a British Student, the Accused American Girl, and an International Scandal, 41 (2010).
 Mirabella, supra note 3, at 239-240.
 See id. at 241-248.
 Id. at 245.
 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.
 Donadio, supra note 99.
 Mirabella, supra note 3, at 243.
 Fisher, supra note 101.
 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.
 See Mirabella, supra note 3, at 244.
 Mirabella, supra note 3, at 244-245.
 Id. at 245
 Id. at 245 (“Ultimately, DNA evidence was central to the court’s conclusion that Knox and Sollecito were a part of the Kercher murder”).
 Timeline: Meredith Kercher murder case, cnn (Mar. 26, 2013), http://www.cnn.com/2011/09/28/world/europe/italy-amanda-knox-timeline/index.html.
 See Mirabella, supra note 3, at 245-46.
 Timeline: Meredith Kercher murder case, supra note 120.
 Mirabella, supra note 3, at 253.
 Id. at 253-554.
 Id. at 254.
 Mirabella, supra note 3, at 253.
 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/
 Timeline: Meredith Kercher murder case, supra note 120.
 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).
 See Coffin v. United States, 156 U.S. 432, 453-54 (1895).
 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).
 See Alan Dershowitz, Amanda Knox—Tabloid Sensation, Global Legal Bellwether, Wall St. J. (Mar. 27, 2013), http://online.wsj.com/article/SB10001424127887324789504578384871256488436.html.
 See id.
 Freccero, supra note 92, at 359.
 See Dershowitz, supra note 136.
 Freccero, supra note 92, at 359.
 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).
 Id. at 359.
 See Provoledo, supra note 7.
 Freccero, supra note 92, at 359.
 Extradition Treaty, supra note 30.
 Id. (see Article IV).
 Cf. U.S. Const. amend. V.
 See Dershowitz, supra note 136.
 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”).
 Greenblatt, supra note 133.
 See Mirabella, supra note 3, at 254.
 See U.S. Const. amend. V.
 See Dershowitz, supra note 136 (“By becoming an exchange student in Italy, Ms. Knox subjected herself to Italian law”).
 See Vargas and James, supra note 1.
 See Dershowitz, supra note 136.