Texas-style Education: the UN and Secularism put in doubt

I take a break for a few days and many stories worthy of attention start appearing, including the decision of the Cambodia Chambers on JCE III (see here and here) and the Kononov ECHR decision on war crimes and the principle of legality. I'll comment on them later, but I also saw this news story about the Texas Board of Education changing its syllabus to invite students to question the separation of Church and State, and to teach them that the UN could be dangerous to American freedom. Apparently, it's quite worrying because Texas is quite influential in imposing standards to textbook writers across the countries. Last year, the Texas board of education had already approved language that left the door open for teachers to slip in creationism in the classroom...

Here's what one board member had to say on the first issue of secularism:

Board member Cynthia Dunbar, R-Richmond, another social conservative, opened Friday’s board meeting with an invocation that referred to the U.S. and its history as a “Christian land governed by Christian principles.”

“I believe no one can read the history of our country without realizing that the Good Book and the spirit of the Savior have from the beginning been our guiding geniuses,” she said.

 Once again, christian conservatives find themselves in agreement with portions of the muslim community that go against principles of secularism and for example argue that blasphemy should be banned because it would contradict the right to exercise religion freely, as suggested at the UN Human Rights Council, as I had discussed in a post last year...

Follow up: Garzon suspended

Apparently, the judge in charge of handling the charges against Garzon has ordered his trial to begin. This has triggered an emergency meeting by the General Council of the Judiciary who decided unanimously to suspend him.  It seems that he therefore will not be able to go to the ICC. I'm not sure how a national suspension affects the ICC's capacity to hire or not someone, but that appears to be the situation right now.

Once again this decision has triggered some hyperbolic responses. According to a prosecutor at the Audienca National, his suspension would "put an end to the principle of universal justice". Not universal jurisdiction, universal justice! For another commentator, his suspension would be catastrophic because he "symbolises international justice for citizens around the world".

I'd like to stress that my position is not to defend the 1977 Amnesty law, or impunity for war crimes around the world, but just to bring some measure to the debate and define more clearly its parameters.

This being said, I remain astonished at how this situation is being considered. Like I said in a previous post, everybody seems to forget that Garzon was "just" a Spanish judge, not some super world prosecutor. He has a choice to quit and become an activist or go work for the ICC. But right now he is still a agent of the Spanish Judiciary and is bound by Spanish laws and accountable to his hierarchy. Once again, it is surprising to me at how little consideration and benefit of the doubt is given to the Spanish legal system.

Also, from a point of view of perceptions of Garzon as the symbol of "universal justice", one has to question the foundations of the created belief in the first place. The human rights community created this symbol forgetting the national function of Garzon. He is an important element in the development of a general framework to fight impunity, but in no way does the future of "universal justice" depend on him.

On a related point, the human rights narrative functions on this idea of a threatened and fragile human rights minority under the threat of  the rest of the world. That is just not true anymore. The unanimity of the support for Garzon shows that. Of course there is still enormous progress to be made in the protection of human rights in the world, but the importance of the human rights movement and its impact, both in influencing countries and in international negotiations, such as the ICC, makes the "besieged discourse" far less convincing. The need to create outrage is understandable to obtain results, but this systematic hyberbolic discourse of repression seems to me to be slightly counter-productive on the long run, when you see the enormous advance of human rights in the last 20 years. 

Discourse creates expectations, and if you create too high expectations, they will obviously be disappointed. This could be the starting point of a general discussion of international justice in general, but let's keep this for another time... 

You read it first on Spreading the Jam: Garzon at the ICC

Well, he's not exactly the new prosecutor yet, as I predicted some weeks back, but he is getting closer to an institution that fits better his "world approach" to justice. Garzon has asked to be transferred to the ICC for seven months as a "consultant" for Prosecutor Ocampo. Not only is it not necessarily a good idea for the ICC to hire such a polarizing figure, but more importantly, should the ICC really be hiring someone who is under 3 investigations for judicial misconduct in his home country? The charges might seem "political", but to the last of my knowledge, Spain is a European democracy (with some problems, but still, don't we all have them?), not some third world dictatorship. I'm a little puzzled at how easily the proceedings are being dismissed as "merely" political. It is the same judicial system that allowed Garzon to operate for so many years on his progressive approach to universal jurisdiction. Or maybe i'm just naive... In any case, I really don't think it looks good for the ICC to take sides on this one (which it will clearly be doing, even indirectly, by letting Garzon work for it).

Krstic gets attacked in a British Prison: new wounds show that old ones still open...

Radislav Krstic, the Bosnian-Serb General found guilty of complicity for genocide for Srebrenica was attacked in the high security British prison where he is carrying out his sentence. Apparently, the attack was conducted by three muslim detainees in retaliation for his war-time conduct. This of course raises serious questions on the conditions of detention and the incompetence of the British prison authorities.

It also raises questions on some of the more politico-philosophical issues surrounding international justice. One of the main arguments of the proponents of this form of mechanism to deal with past atrocities is that it fosters reconciliation. This is just one case, but it's hard to see reconciliation happening when throats are being cut open. More generally, someone at the ISA conference in February (can't seem to find the reference right now) was presenting figures of an opinion poll that showed that a majority of serbs still don't think that something happened in Srebrenica (the bodies were in fact dummies, goes one version...) and those who do believe to a large majority that is was a legitimate war reprisal between combatants. Hardly a sign, once again, that things are moving forward.

More fundamentally, this event, three british muslims attempting to kill a Bosnian-Serb general for the massacre of bosnian muslims, shows the difficulty of defining the right framework for analysing international justice and its consequences. There are clashing logics in the narratives of international justice. Indeed, the initial logic of international justice is that certain crimes are such that they affect the international community as a whole and therefore warrant 1) to be qualified as international crimes and 2) be prosecuted before an international court. Tadic was a prime example of this kind of reasoning. More recently, with the transitional justice movement, discussions of reconciliation have attempted to "relocate" international justice within the national setting. But that is not entirely possible anymore because we have, through the cross-border universalisation of values and the setting of international justice within a "global community" logic, paradoxically weakened the relevancy of the local political entity, thus making the local impact less effective. In effect, by internationalising justice we have contributed to the internationalisation of the conflict itself, as the Krstic attack shows...

This is only a tentative reflexion on the articulation between the local and the international from a political and legal theory perspective (what legal order are we talking about? what social contract?) but I remain surprised at how little academic thought within the ICL community goes into the analysis of these general systemic questions. It might seem unimportant on the short term ("as long as justice is done somewhere..."), but the long-term consistency of the system depends on it.

Future of Appeal of Dead Defendant at the ICTY (and a footnote on Garzon)

Last friday, Rasim Delic, a former Bosnia Army General, died while awaiting the result of his appeal against his three year conviction for war crimes. It has to be a relief the the tribunal that he was provisionally released and that he has not joined the list of defendants that died in the UN detention center.

His death raises interesting questions because apparently, he is the first defendant to die during the appellate phase. I must say I'm not too sure what to think about what should happen to the proceedings and wanted to throw some random thoughts out there for your consideration.

One argument is to say, as when other defendants died, that the proceedings should cease. That would be an open and shut case. But somehow, I feel, without being exactly able to argue my point yet, that the situation is different on appeal. Before the Trial Judgment, if the proceedings are stopped, the presumption of innocence means that the person dies innocent. There has been no consequence of the ongoing proceedings because, legally, it is as if they had never started. On appeal, the presumption of innocence doesn't work anymore (or does it?) and he would die guilty if the proceedings were to stop before the issuance of the appeals judgment. That somehow does not feel right.
One has to keep in mind the hybrid nature of the appellate process in international criminal courts. In most national systems, an appeal is basically a new trial and the appellate procedure suspends the sentence of the first instance tribunal. Afterwards there is usually a third degree of jurisdiction which only determines whether the lower courts have made a mistake of law, and the procedure is not suspensive. At the ICTY, the Appeals Chamber fulfills both functions. It is a judge of law, mostly, but also of fact, without there being a new trial per se (which leads to the weird procedure whereby the Appeals Chamber can overturn a finding of innocence or increase the sentence, without any chance of appeal, which  I personally find disturbing, as I've already argued, but that's a different issue). Interestingly, the Appellate procedure does not suspend the sentence.

With all this in mind, there are, in my opinion two approaches.
1) I would prefer that the appeal judgment be rendered. What is in the dock at this stage is the Trial Judgment, not the defendant anymore. I think it is in the interests of the good administration of justice that we know whether the trial chamber got it right. Especially as, from what I've seen on the website, all the appellate hearings seem to have been concluded, so the rights of everybody to be heard have been respected.
2) If the proceedings are called to an end, there remains the question of what to do with the Trial Judgment. In order to respect the presumption of innocence, I think the trial judgment should be quashed for reasons of equity.

Whatever the judges decide, the worst would be for them, faced with this novel situation in international criminal proceedings and because it is likely to happen again, to issue an unsubstantiated order that would give no indication on their reasoning.

Footnote on Garzon:
Thank you for your reactions to my thoughts on the Garzon proceedings. I wanted to add a small point, although it doesn't fundamentally change my general views on the whole situation and on the way people have reacted to it.
It appears, and I've had difficulty in finding precise information, not being a Spanish speaker, that the investigation was stopped in 2008 following a court decision. If that is the case, I do think that Garzon has a strong defense in the current proceedings. Indeed, if Garzon initiated an investigation and then went before a judge to confirm it, failed to obtain that confirmation and then stopped the proceedings, I don't see where the abuse of power would be constituted. The normal procedure seems to have been followed. It happens daily in every system where a prosecutor or investigative judge builds up a case and then is told that he got it wrong by a court. If that is an abuse of power, then every national prosecutor would be facing such charges at one point in their career. That's just how the system works.
Of course, at this stage, this is just speculation, as I can't seem to get hold of the alleged 2008 decision or its content. If anybody has it, I'd be happy to read it.