Pinochet - Posthumously under Investigation

As reported by Jurist and Bloomberg, former Chilean dictator Augusto Pinochet is posthumously under investigation. A Chilean judge is investigating whether Pinochet ordered the 1982 poisoning of Eduardo Frei Montalva, ex-president of Chile and main opponent of the constitutional reform envisioned by the Pinochet regime. A recent examination of Montalva's remains had found traces of mustard gas.

According to a Chilean lawyer [Bloomberg article], under Chilean law, an investigating judge may pursue investigations indefinitely until there is sufficient evidence for initiating a trial. Although only persons that are still alive can be subject to criminal charges, a judge may award damages to a victim's family or summarize the findings of his investigation in a final report.

The recent investigations in the Montalva case raise hope among Chilean victims' families that the period of suppression of truth is finally over. Despite some efforts, Pinochet was never really held responsible during his lifetime. Thus, in 1998, the British House of Lords refused to extradite Pinochet to Spain for reasons of his poor health. Maybe, finally, after the death of the protagonist, victims will get their day in court. Whether this will really bring about justice remains to be seen...

What is the Matter with the EU?

As an addendum to yesterdays post, I would like to talk about what I perceive as the two essential problems of the European Union as well as about the way I think they could be resolved.

• First of all, the European Union is still too remote to its citizens. Most of the citizens do not know how the European Union is organized, how they are represented, what impact the European Union has to their daily life etc. Every five years, citizens are invited to vote for the European Parliament. Yet, with some exceptions, the candidates are generally not very well known. In addition, the European Parliament still plays a minor - although growing - role in terms of influencing EU legislative activities. Thus, the European Commission, which consists of envoys of the member state governments, proposes laws which are then passed by the European Parliament and the Council of the European Union (ministers of member state governments). Such a system differs considerably from what we are used to. How shall citizens of the respective member states feel constrained to a system where they have so little to say?

• Second, member states seem to have lost track of the process of European integration. The focus now is mainly on European extension. Integration efforts often fail because member states cannot bite the bullet: they lay more interests on their own interests than on community interests. Although such an attitude is understandable, it does not advance integration. Integration, however, is important for a successful further extension. Therefore some rethinking from part of every single member state is necessary in order to assure the continued success of the European Union. Here again I think the solution is to win the support of the citizens of the respective member states by providing them with a more active role. Once they feel constrained to the European Union, they probably will support pro-European efforts of their national governments which, in turn, will prompt those national governments to act accordingly and to contribute to integrative efforts within the European Union.

In sum, I do hope that the new "basic treaty" of the European Union envisioned for 2009 will give the European citizens more opportunities to participate.

50 Years EU - Time to Celebrate?

On March 25, 1957, six countries (France, West Germany, Italy, Belgium, the Netherlands, and Luxembourg) signed the "Treaty establishing the European Economic Community (ECC)" and the "Treaty establishing the European Atomic Energy Community (EURATOM)", both better known as Treaties of Rome. Although several advances had been made before [presentation by German government, pdf], the signature of those treaties is considered to have laid the foundation stone for the European Union as it exists today. Therefore, in order to celebrate the 50th anniversary, representatives of all 27 member states gathered in Berlin for various festivities culminating in today's signature of the Berlin Declaration [text, pdf]. Unfortunately, not everything looks as bright as the festivities might suggest. This became once again apparent in the run-up to the 50th anniversary, particularly with regards to the Berlin Declaration. The final preparations for this declaration were kept secret to an extent that the Czech government felt compassed by Germany [FAZ, in German].

Interestingly, the declaration strives no longer for a European constitution, but for a "basic treaty" [FAZ, in German]. This is to avoid the recurrence of past "disasters": in 2005, voters in France and the Netherlands had rejected a proposed European Constitution - in France, at least partially, as a result of discontentment with the French government. Those rejections constituted a major setback for the further development and reorganization of the European Union. Such a reorganization would have been important for the smooth expansion of the European Union. The current goal of a "basic treaty" shall make Constitution opponents give in. If not the future of the European Union is questionable ...

A Daunting Discussion ...

The issue of climate change resounds throughout the land ... In Europe, where the winter has been exceptionally warm ... In the United States, where Al Gore was awarded an Oscar for his documentary on global warming ... The evidence is daunting ... Really? Who knows! The Frankfurter Allgemeine Zeitung (FAZ) reports on a counter movement:

The advocates of this counter movement question the causality between human CO2 emissions and global warming ... they even challenge the phenomenon of global warming per se: couldn't the rising sea level be caused by continental drift and the "old" arctic ice just make room for new ice layers? And isn't the whole global warming discussion just a political creation of the former Thatcher government in Britain in order to promote atomic energy? All those questions are raised in a film by Martin Durkin in his film „The Great Global Warming Swindle“ broadcast on the British Channel 4 [website on film]. In the United States, the global warming critics just won a verbal battle against global warming proponents broadcast on National Public Radio [website on debate]. For a critical examination of those new arguments and other points of views on the issue of climate change, please see Real Climate [blog by climate scientists].

The discussion seems to be heated right now given the current political momentum ... but probably it will cool down at some point ... in accordance with the alleged temperature cycle of the earth ...

France - Freedom of the Press Prevails Over Comity

Today, the Tribunal de Grande Instance Paris, 17e Chambre (trial court) acquitted Philippe Val, the director of the French satiric newspaper Charlie Hebdo [Wikipedia, in French]. Mr. Val had been prosecuted for the publication of cartoons displaying the Muslim prophet Mohammad, one week after such displays by a Danish newspaper had led to protests from part of the Muslim community. Last September, a Danish court refused to hear the Danish cartoon case. Now, a French trial court emphasizes freedom of the press and refuses to hold the cartoon publishers accountable. For further information, see Find Law [in English] and LeMonde [in French].

If the issue was freedom of press versus comity, clearly freedom of the press prevailed. This outcome per se is not surprising because France has a long tradition of secularism and protection of freedom of expression. What struck me, however, as unfortunate is the meddling of politicians in the lawsuit: even the right-party candidate to the French Presidency, Nicolas Sarkozy, expressed his solidarity with Mr. Val in a letter to the defense. Not exactly a way to attract voters from the vast Muslim community in France.

The Deficiencies of the German School System

After a few days creative break, I am determined to start afresh with regular reports from the international arena ...

Today, I would like to give a few insights into the German educational system. The linchpin to this post is today's meeting of the U.N. Human Rights Commission on the German school system. The meeting was prompted by a staggering report of the U.N. Special Emissary, Vernor Muñoz. In his report, Muñoz characterizes the German school system as discriminatory as disabled children and children from poor or immigrant families have a difficult time to succeed and are taking a back seat. For more information, see Sueddeutsche Zeitung [article, in German].

One stumbling block is the early "classification" of children in "intelligent" and "less intelligent". Thus, during the fourth year of primary school (at the age of nine or ten), a teacher has to decide which of her pupils she considers capable to attend high school (Gymnasium). Those "not so capable" are again classified and either sent to a compulsory secondary school (Hauptschule) which is said to provide only low-chance education or to an intermediate school (Realschule). The Bayerisches Kultusministerium has more [website, in English]. The "upgrade" to a "higher level school" is almost impossible.

The early classification is generally detrimental for immigrant children whose proficiency of the German language often does not meet the standards set for being considered "capable to attend high school". When I was at primary school, immigrant children (in our case Greek students) did not even attend the same classes as we did: they had their own teacher, own rooms etc. Not really a system that fosters integration ...

Indeed, Mr. Muñoz's other challenge is the current school system's "discrimination" against disabled children. Those children are sent to special schools where they shall get particular assistance. The problem is that this generally results in disabled children taking a back seat. During my whole education in Germany, I never had a classmate or co-student who was disabled, i.e. blind or confined to a wheelchair ... This is certainly nothing to be proud of.

Still the Secretaries of Education of the German Laender are not inclined to change the current system. They challenge Mr. Muñoz's ability to judge the German system and assert that the current system has proved its value. Well, another illustration of the German phlegm when it comes to reform the current (traditional) system ... but unfortunately also another example of a state refusing to take the U.N. seriously.

Some Reflections on the Upcoming Presidential Elections in France

On April 22, 2007 will be the first round of the presidential elections in France (website, in French). According to the latest survey, the top four candidates are Nicolas Sarkozy (right wing), Ségolène Royal (left wing), François Bayrou (right wing), and Jean-Marie Le Pen (rightist extremist) - thus, Ségolène Royal being the only presidential favorite that belongs to the left wing.

The last presidential elections in France (2002) had been disastrous for the left wing and clouded by rightist extremist Jean-Marie Le Pen being astonishingly successful during the first round of elections - only incumbent Jacques Chirac (right wing) got more votes. Lionel Jospin (left wing) only attained the third place. Jospin reacted to this defeat and stepped down. Consequently, the run-off ballot was between Chirac and Le Pen: most right wing and left wing partisans teamed up and Chirac was elected with paramount majority. For more background information to the presidential election 2002 see Wikipedia [in French].

The current front-runners for the French Presidency seem to be Nicolas Sarkozy (right wing), Ségolène Royal (left wing) ... according to the latest surveys and definitely according to the media coverage. Interestingly, Le Canard Enchaîné [website, in French], a satiric newspaper has attracted attention lately by uncovering some shady conduct of both front-runners ... even the bigger newspapers like Le Monde (France) and FAZ (Germany) referred to those articles. It seems a little bit strange to me that, of all things, a satiric newspaper should assume such a role, but whatever ...

On another note, the www plays an increasing role in electoral politics. Candidates have their website/weblogs where they can communicate their programs and ideologies to their adherents as well as to interested parties. Besides, supporters increasingly take a stake in their favorite candidate's election campaign. Yesterday, for example, I visited Ségolène Royal's website [in French] and found an interesting posting inviting all bloggers supporting Royal to come together in order to make a joint backup effort ... Will this be enough to avoid a defeat similar to the 2002 elections? We will see in 37 days ...

Gay marriage in France? ... Not yet!

Some legal news from France ... I just read the article and chronology in today's online version of Le Monde: The French Cour de Cassation (highest court in France that hears all final appeals except administrative law cases) annulled the notorious marriage of Bègles - the first and only gay marriage of France [for detailed report, Cour de Cassation press release]. The court held that the current French family law restricts marriage to a union between a man and a woman and that it is upon the legislature (and not the judiciary) to change the law in order to allow gay couples to marry should the situation arise.

The current legal situation of homosexual partners in France is as follows: Since 1999, homosexual couples, as well as heterosexual couples, may form a PACS ("Pacte Civil de Solidarité" - Civil Solidarity Pact). The PACS is a contractual agreement between the partners giving their union a certain legal status short of marriage [Wikipedia, in French]. For example, on the one hand, "pacsés" owe each other mutual aid, are liable for each other's debts incurred during the union, have certain social rights. On the other hand, however, they are not entitled to inherit from each other intestate, and, as recently decided by the Cour de Cassation [press release], one "pacsé" is not allowed to adopt the child of the other without the biological parent losing her right, a result which the court considered not to be in the interest of the child. A situation principally different to that of married couples where one partner is allowed to adopt the other's child in order to have common child custody. Again, as it did today, the court emphasized that changes of the current law should be done by the legislature.

Interestingly, in France, the matter of gay couples seem to re-appear on the political agenda. Yet, this time, the question is not whether homosexual partnerships should be generally accepted and accorded rights. Rather, the discussion turns to the point of eliminating any distinction between homosexual and heterosexual partnerships in order to allow homosexual partners to marry, all legal (and social?) consequences inclusive. France could again, as already with the legal recognition of homosexual partnerships (by introducing PACS), set the ball rolling for a general acceptance of gay marriages in Europe. Let us see how the situation further develops ...

Afghanistan - The New Amnesty Bill and the Duty to Investigate and Prosecute Human Rights Abusers

Today, according to Jurist [report], the lower house of parliament in Afghanistan approved an amnesty bill that would make state prosecution of war criminals contingent on an accusation raised by an alleged victim. Today's bill is a revised version of a previous amnesty bill that, for the sake of peace, would have granted blanket amnesties to warlords that had allegedly committed human rights violations during the country's long period of conflict. This prior bill had been criticized by human rights groups and the U.N. High Commissioner for Human Rights [Jurist report] for not respecting the victims' rights to justice.

The new bill gives victims at least a right to seek justice on an individual basis. Yet, it sort of shifts the responsibility for prosecuting war crimes to the individual victim instead of having the state prosecute war criminals ex officio. I have my doubts whether such a solution would fully satisfy Afghanistan's duty to investigate and prosecute human rights perpetrators as implied by international treaty law as well as customary international law.

France - Interaction between French law and European Union law

Last month, the French Conseil d'Etat (Council of State), which is the highest administrative court in France, further clarified the interaction between French law and European Union law. Specifically, on February 8, 2007, the council decided two cases [press release, in French] that set the basis for the council's new approach to EU law.

The first case determined the judicial approach in cases where the conditions for translating a European directive seem to run contrary to provisions in the French Constitution. In such cases, the council set forth, administrative judges should first determine whether the constitutional provision in question had a counterpart in European law. If this was the case, a judge would then have to ascertain whether there is a serious challenge to the European directive. If yes, according to the council, the judge should ask the European Court of Justice to review of the legality of the directive by means of a reference for a preliminary ruling. The EU Law Blog has more about this case.

The second case concerned the question of State responsibility for violations of international law. The council held that if the French government violated international law in general, and European law in particular, and if this violation resulted in individual harm, the government would have to pay damages to the individual harmed. In the case at hand, the council determined that the French government was liable for violating the European Convention for the Protection of Human Rights and Fundamental Freedoms [text].

ICC vs. Sudan - Who has Jurisdiction over Darfur?

Last week, I reported on the chief prosecutor of the International Criminal Court (ICC) naming the first suspects in the case involving the situation in Darfur. One of those named suspects, Ali Kushayb, should be tried yesterday by the Darfur special court in El-Geneina, Sudan. This trial, however, was delayed due to an appeal filed by the accused [Reuters UK].

The Kushayb trial is just another way for Sudan showing its opposition to the current ICC investigation of the situation in Darfur. Thus, in 2005, when the U.N. Security Council referred the Darfur conflict to the ICC, the government in Sudan reacted with the formation of the Darfur special court [Reuters UK].

By conducting its own proceedings, Sudan tries to circumvent the ICC jurisdiction. According to the Rome Statute [text, pdf], the jurisdiction of the ICC is determined by the principle of complementarity which makes the admissibility of a case before the ICC dependent on the lack of a genuine prosecution in the original state (here Sudan).

The chief prosecutor of the ICC addressed the issue of admissibility in his opening remarks in connection with the naming of the first two Darfur suspects [text]:

The Government of the Sudan informed the Prosecution that Ali KUSHAYB is under criminal investigation and was arrested on the 28th of November 2006.

Our case is about Ahmad Harun and Ali Kushayb joining each other to attack the civilian population in Darfur. There is no such investigation in the Sudan.

On this basis, the Prosecution has concluded that the case is admissible. To be clear, the admissibility assessment is not a judgement on the Sudanese justice system as a whole. We are just assessing if the Sudanese authorities are carrying out the same case.

Thus, the chief prosecutor of the ICC, as of now, refuses to question the candor of the Dafur special court proceedings and relies on the assertion of joint responsibility as a factor sufficiently different to warrant parallel ICC proceedings. It remains to be seen how this strategy works out.

Are the Swiss Still Neutral?

I have been asked to write a few lines about an incident that took place last week at the frontier between Switzerland and Liechtenstein: A company of Swiss soldiers, during a routine training exercise, inadvertently crossed the unguarded border to its defenseless neighbor Liechtenstein. The New York Times reported on this occurrence [article].

While both countries concerned did not make a big deal out of the event, a member of the legal community [Opinio Juris on March 2, 2007] "was appalled to learn of Switzerland's recent invasion of Liechtenstein" and stresses that "the responsible individuals are punished appropriately".

Personally, I would like to invoke my neutrality acquired through marriage. Yet, maybe my husband Flavio who is Swiss would like to comment on this matter ... provided he does not choose to invoke his right to remain silent ...

Of course, comments by others are also very welcome.

About a German Islam Critic

I found an interesting article in today's issue of the Frankfurter Allgemeine Zeitung (FAZ) ... here is the link [text in German]. The article talks about Rainer Grell, a lawyer and former head of the immigration division within the Department of the Interior of the German Land Baden-Wuerttemberg. As an incumbent, Grell developed the Gespraechsleitfaden fuer Einbuergerungswillige (which could be translated as "Interview Guide for Persons Who Would Like to Become German Citizens"). Grell eventually enforced the implementation of a questionnaire to test applicants' orientation towards the German Grundgesetz (which can be translated as "basic law" and is the German Federal Constitution). The test consists of the following type of questions:

Please assume the following situation: your son of full age tells you that he is homosexual and would like to live with another man. How do you react?

Grell's test was his reaction to a statement by the President of a German administrative court who argued that a teacher who insisted on wearing a headscarf was unable to act in consistence with the German Grundgesetz and its values. The 'history' of Grell's test can now be downloaded from Grell's website "Politically Incorrect" [in German]. By the way, the slogan of the website is "News Against the Mainstream - Pro-America - Pro-Israel - Against an Islamization of Europe - For a Basic Law and Civil Rights".

To put everything in perspective ... Grell is no longer in office ... and, according to the FAZ, Grell's test is currently under revision. Personally, I can only hook up with the bottom-line of the above-mentioned FAZ article: We should refrain from politicizing religion. Not every Muslim is a fundamentalist ... and not every Christian adheres to democratic values. Moreover, the stigmatization of Muslims because of their beliefs may very well be counter-productive and be prejudicial to international understanding.

Upcoming Event - National People's Congress in China

Tomorrow begins this year's annual session of the National People's Congress (NPC), which is the highest legislative body in the People's Republic of China. While the international community is mostly concerned by China's plan to increase its defense budget by 17.8 percent, two pieces of legislation might have a major impact on China's economic future.

First, the NPC is about to pass a law that will bring corporate tax rates of foreign companies on line with the rates for local companies. This law might indicate a trend from the part of the Chinese economic policy towards a disentanglement from foreign investment.

Second, and more controversial, this year's NPC might finally approve a private property law that will provide privately owned property the same legal status as state-owned property. The proposed law, which departs from traditional socialist ideology, explicitly prohibits the violation of property rights, especially through seizure and expropriation by public authorities, without due compensation. The new private property law could attract those (foreign) investors who so far were reluctant to make long-term investments due to the lack of private property protection.

A Few Words About the German Presidency of the Council of the European Union

As a German citizen, I am bound to write a few words about the German Presidency of the Council of the European Union as well as about what this Presidency actually entails. On January 1, 2007, Germany has taken over the Presidency from Finland. Germany will hold the Presidency for six months. In July, Portugal will assume the Presidency for the next six months, followed by Slovenia ...

The Council of the European Union is part of the legislature in the European Union. It meets in different formations [Council website], depending on the issues discussed, with each member state delegating a minister responsible for the specific area (i.e. if environmental issues are to be discussed, member states will send their ministers who are responsible for environmental affairs).

The member state holding the Presidency of the Council of the European Union [overview, German Presidency website] acts as a chairman of the different Council configurations as well as of the various preparatory committees, working groups etc. In addition, the President of the Council of the European Union (i.e. the foreign minister of the member state holding the Presidency) prepares the agenda for the Council, signs legal acts, and represents the Council with regards to foreign affairs.

The slogan of the German Presidency is "Europe - succeeding together". Germany has developed an extensive program [text, pdf] and will organize two summits: The first one will take place the coming week and will deal with questions of the European Union's economic and social future. The second summit will be held in June and will address the future of the Treaty Establishing a Constitution of Europe.

While the frequent change of Presidencies of the Council of the European Union shall guarantee the best representation of interests of the respective member states, it is often too short to bring about major changes or reforms and it is up to the succeeding state to decide whether it will continue these efforts or set its own priorities...

In view of this problem, Germany, Portugal, and Slovenia have come together and developed a 18-month program [text, pdf] covering their three successive Presidencies. Maybe this program represents the necessary step to bring about the looked-for reform to make the European Union more apt to deal with the ever growing number of member states. It remains to be seen what future will bring...

Extraordinary Renditions - Again, For the Sake of Completeness

Yesterday, I mentioned the extraordinary rendition case brought in a US court by the German citizen Khaled El-Masri. Today, the Fourth Circuit Court of Appeals affirmed the district court's dismissal of this case. Like the district court, the court of appeals recognized the state secrets privilege as providing sufficient grounds for a dismissal of the case. According to the United States Supreme Court in United States v. Reynolds (1953), the state secrets privilege allows the United States to prevent disclosure of information in a judicial proceeding if "there is reasonable danger" that such a disclosure "will expose military matters which, in the interest of national security, should not be divulged." The court of appeals finds that despite the fact that the existence of CIA flights has been publicly acknowledged by the United States, a proper proceeding would have required the (further) release of state secrets which could jeopardize national security.

Well, US courts dismiss extraordinary rendition cases, foreign courts that accept to hear such cases will not get hold of the suspects ... sooner or later the whole matter will fizzle out.

Extraordinary Renditions - A Deflating Insight

Yesterday, the US Department of State, announced that the United States were not inclined to follow any request from Italy to extradite CIA agents [press briefing]. With this statements the State Department reacts to the indictment of 26 US (and 5 Italian) intelligence agents by an Italian judge earlier this month for their alleged participation in the 2003 abduction and extraordinary rendition of Osama Moustafa Hassan Nasr, an Egyptian cleric and alleged terror suspect. The trial is set to begin in Italy on June 8, 2007. If the US continues to refuse to extradite the agents, the trial may still take place in absentia. The impact of such a trial, however, is questionable. What should happen if those agents are found guilty by an Italian judge?

In a similar case, involving a German citizen who was allegedly abducted by the CIA and held in a secret prison in Afghanistan, the CIA acknowledged having been authorized by presidential order to detain and interrogate terror suspects overseas. Yet, will the US president be held accountable? And the European state officials who, according to a report by the European parliament [info], "have been relinquishing control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for illegal transportation of detainees"?

What remains is a deflating insight: hypocrisy does not halt before human rights. Western democracies may be publicly endorsing civil values and human rights, but offstage they still resort to torture. Individual rights, then, are left out dry.

Chief Prosecutor of International Criminal Court Names First Darfur War Suspects

On Tuesday, the chief prosecutor of the International Criminal Court (ICC) announced the first suspects in the case involving the situation in Darfur. The Prosecution claims [ICC-OTP press release] to have found reasonable grounds to believe that Ali Kushayb, leader of the pro-government janjaweed militia, and Ahmad Harun, former Sudanese interior minister, have jointly committed crimes against humanity and war crimes. By accusing senior figures of Sudan of international crimes, the Prosecution follows its policy to focus investigation and prosecution efforts on the big fish.

Tuesday's announcement came two years after the UN Security Council had referred the situation in Darfur, Sudan, to the prosecutor of the ICC [Security Council press release]. Besides Darfur, the following three situations have been referred to the prosecutor of the ICC: Democratic Republic of the Congo, Uganda, Central African Republic.

A Pre-Trial Chamber of the ICC now has to review the evidence submitted by the Prosecution. If the judges find that there is indeed reasonable grounds to believe that Kushayb and Harun committed the alleged crimes, they have to decide how to further proceed, specifically, how to ensure Kushayb's and Harun's appearance in court. This raises the important question of execution of arrest warrants issued by the ICC. The ICC lacks its own enforcement mechanism and therefore has to rely on state cooperation. Hence, what if a state is either unable or even unwilling to execute an arrest warrant issued by the ICC?

The chief prosecutor of the ICC has recently called on academics and practitioners to publish on the topic of international criminal prosecution [Jurist Forum].