Monthly Archives: June 2012

Zimmerman’s Police Statements Are Not Consistent With Established Facts

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George Zimmerman’s written police statement, taken on the night that he shot Trayvon Martin, has now been released by his defense counsel, along with several audio recordings of oral statements he gave. I have not been able to listen to the recorded statements yet, but my transcript of the handwritten statement is as follows:

In August of 2011 my neighbors house was broken into while she was with her infant son. The intruders attempted to attack her and her child; however, SPD reported to the scene of the crime and the robbers fled, my wife saw the intruders running from the home and became scared of the rising crime within our neighborhood. I, an my neighbors formed a “Neighborhood Watch Program.” We were instructed by the SPD to call the non-emergency line if we saw anything suspicious & 911 if we saw a crime in progress. Tonight, I was on my way to the grocery store when I saw a male approximately 5’11” to 6’2″ casually walking in the rain, looking into homes. I pulled my vehicle over and called SPD non-emergency phone number. I told the dispatcher what I had witnesses, the dispatcher took note of my location & the suspect fled to a [darkened?] area of the sidewalk, as the dispatch was asking me for an exact location the suspect emerged from the darkness and circled my vehicle. I could not hear if he said anything. The suspect once again disappeared between the back of some houses. The dispatch once again asked for my exact location. I could not remember the name of the street so I got out of my car to look for a street sign. The dispatch asked me for a description and the direction the suspect went. I told the dispatch I did not know but I was out of my vehicle looking for a street sign & the direction the suspect went. The dispatch told me not to follow the suspect & that an officer was in route. As I headed back to my vehicle the suspect emerged from the darkness and said “you got a problem” I said “no” the suspect said “you do now”. And [illegible] and tried to find my phone to dial 911 the suspect punched me in the face. I fell backwards onto my back. The suspect got on top of me. I called “Help!” several times. The suspect told me “shut the fuck up” as I tried to sit up right. The suspect grabbed my head and slammed it into the concrete sidewalk several times. I continued to yell “Help!” each time I attempted to sit up, the suspect slammed my head into the side walk, my head felt like it was going to explode. I tried to slide out from under the suspect and continue to yell “Help”. As I slid the suspect covered my mouth and nose and stopped my breathing. At this point, I felt the suspect reach for my now exposed firearm and said “you gonna die tonight motha [fuckin’?].” I unholstered my firearm in fear for my life as he had assured he was going to kill me and fired one shot into his torso. The suspect got back allowing me to sit up and said “you got me.” At this point I slid out from underneath him and got on top of the suspect holding his hands away from his body. An onlooker appeared and asked me if I was ok, I said “no” he said “I am calling 911″ I said I don’t need you to call 911 I already called them I need you to help me restrain this guy.” At this point a SPD officer arrived and asked who shot him” & I said “I did” and I placed my hands ontop of my head and told the officer where my personal firearm was holstered. The officer handcuffed me and disarmed me. The officer then placed me into the back of his vehicle.

This statement is going to be a very big problem for Zimmerman’s defense team. It is more troubling than I expected — many of the more incongruous and bizarre claims that were in contained in the reports relayed by George Zimmerman’s brother and father are also present in Zimmerman’s own statement, and they are not adding up.

Even taking this statement in the most favorable light for the defense, it contains several factual inaccuracies and at least one gaping omission that Zimmerman’s counsel is going to have to explain. Some incorrect or distorted recollections are to be expected — witnesses are, in general, very bad at remembering a precise account of high stress events. That Zimmerman’s statement contains some odd inaccuracies is not notable in itself, or a sign that Zimmerman intentionally tried to misstate the truth. Zimmerman’s account, however, contains a number of troubling, self-serving statements that are inconsistent with the known facts of this case.

Here are excerpts of some of the more significant allegations in the statement, and a brief summary of the significance of those allegations.

 Tonight, I was on my way to the grocery store when I saw a male approximately 5’11” to 6’2″ casually walking in the rain, looking into homes.

Zimmerman lives in the far southwest corner of the neighborhood. Both entrances to the neighborhood complex are on the same road that Zimmerman lives on, and not on Twin Trees, where Zimmerman’s car was parked and where the first encounter between the two occurred. Why was Zimmerman on Twin Trees Ln., then? Zimmerman claims he just happened to notice Trayvon as he was driving to the grocery store, but it seems more likely Zimmerman pursued Trayvon in his car even before the call to police was made.

I have yet to see it confirmed precisely where Zimmerman’s truck was parked, or which way it was facing, but the consensus seems to be he was just east of the dog-leg of Twin Trees Ln., in the north side lane, facing towards the club house. In order to be in this location, Zimmerman would have had to have taken a very odd path out of the neighborhood complex.

[A]s the dispatch was asking me for an exact location the suspect emerged from the darkness and circled my vehicle. I could not hear if he said anything. The suspect once again disappeared between the back of some houses. The dispatch once again asked for my exact location.

Zimmerman’s call to the non-emergency line does not support this part of Zimmerman’s statement. In that call, Zimmerman does not narrate either (1) Trayvon “circling” his vehicle, or (2) Zimmerman losing sight of Trayvon on two separate occasions. In the phone call, we hear Zimmerman describing Trayvon “coming to check me out,” and then “running,” but Zimmerman never states that he lost sight of Trayvon before that. Nor does he mention any “circling” — only “approaching” and then passing by Zimmerman’s truck.

The suspect once again disappeared between the back of some houses. The dispatch once again asked for my exact location. I could not remember the name of the street so I got out of my car to look for a street sign.

First, there are exactly three streets in Zimmerman’s neighborhood. Three. It defies all reason that Zimmerman, the dedicated neighborhood watch leader, could not even name the three streets that make up his neighborhood. Additionally, the call logs from Zimmerman’s prior calls to the police seem to indicate that Zimmerman was repeatedly able to direct officers to precise crossroads in the neighborhood, reporting incidents at “nearest  Intersection:  TWIN TREES LN &  LONG OAK WAY”. A review of the transcripts of those calls would be necessary to be sure, but I suspect that will be easily confirmed.

And second, there are no street signs anywhere near where Zimmerman’s car was parked, where the shooting took place, or anywhere in between. If Zimmerman was going to look for a street sign, he was going the wrong way. In fact, in the call to police, Zimmerman freely admits his purpose in exiting the vehicle was to follow Trayvon:

Dispatcher: Are you following him?
Zimmerman: Yeah

So Zimmerman’s written statement does not provide his prior admitted reason for getting out of his vehicle, and substitutes it with a nonsensical alternative explanation. Why would Zimmerman lie about his reason for getting out of the car, when the truth was not even particularly detrimental to his claims? It does show that Zimmerman was aware of a need to rewrite the events, starting even with basic details.

The dispatch told me not to follow the suspect & that an officer was in route. As I headed back to my vehicle the suspect emerged from the darkness and said “you got a problem” I said “no” the suspect said “you do now”.

Dispatch instructed Zimmerman not to follow the suspect at approximately 7:11:55 – 7:12:05pm. My best estimate of when the encounter between Zimmerman and Trayvon occurred is between 7:15:30 – 7:15:45pm, and it seems unlikely based on available testimony that it occurred any sooner. So that is, conservatively, an entire three minute period of events, which Zimmerman’s statement utterly omits, and which his statement glosses over as if it were a period of only a few seconds.

In the minimum 200 second time period that elapsed between Zimmerman being instructed to return to his vehicle and the time of the fight, what did Zimmerman do? We do not know, and his statement to police never explains it. The physical altercation between Zimmerman and Trayvon occurred ~35 meters from the location of Zimmerman’s truck — he could have walked there and back to his truck again three times over, in the time that elapsed.

Zimmerman apparently believes that his actions during that time period are best left unstated. We can only speculate as to why.

[E]ach time I attempted to sit up, the suspect slammed my head into the side walk[.]

Trayvon’s body was found over a body length away from the sidewalk. The shell casing from Zimmerman’s gun was found ~4 ft from the sidewalk. Zimmerman’s back and the fronts of his boots and the front cuffs of his pants are damp, and either shown in photos or reported by witnesses to be covered in grass. Witnesses also reported the fight occuring in the grass between the houses.

It is definitely possible that the fight between the two occurred partially on the sidewalk, but this part of Zimmerman’s story has always felt wrong to me — it just does not add up. But, based on released evidence so far, it is impossible to get any better of a reconstruction of how the fight actually played out.

As I slid the suspect covered my mouth and nose and stopped my breathing. At this point, I felt the suspect reach for my now exposed firearm and said “you gonna die tonight motha [fuckin’?]”. I unholstered my firearm in fear for my life as he had assured he was going to kill me and fired on shot into his torso.

This statement reads like it was perfectly scripted to provide a self-defense claim. Zimmerman’s own stated reason for shooting Trayvon was not based on Trayvon’s unarmed physical assault, but rather on Trayvon’s “assur[ances]” that he would kill Zimmerman. If you’re going to claim self-defense, it can’t hurt to make the claim that your victim conveniently notified you of his murderous intent seconds before you shot him.

Apparently, Zimmerman did not consider using lethal force during the beating until Trayvon made a threat to take Zimmerman’s own gun away, and the “fear for [his] life” only came as a result of Zimmerman’s own firearm being introduced to the fight. But nothing about this description of the fight makes sense, no matter how I try to picture how it might have happened. (1) With a single hand, Trayvon was able to cover Zimmerman’s airway sufficiently to stop his breathing. (2) With his other hand, Trayvon was able to grab Zimmerman’s holstered weapon. (3) Despite not being able to breathe, Zimmerman does not use his (apparently unrestrained) hands to clear his airway. Instead while Trayvon was laying on top of him and while Trayvon was also grabbing at the gun, Zimmerman was able to unholster the gun at his side — presumably single-handedly, using only the hand on the same side as the gun, as Trayvon was on top of him — .raise the gun from his waist  to chest level, push Trayvon far enough off of him in order to place the gun between himself and Trayvon, and fire. (4) The first 911 call shows that the “help!” calls continue right up to, and are cut off by, the screams for help. Zimmerman was apparently still able to shout during this time period, despite having had his breathing “stopped” by Trayvon.

It doesn’t make sense. It is possible, however, that owing to the stress of the fight and the intensity of the moment, Zimmerman is remembering the details out of order, leading to the story’s incoherency.

An onlooker appeared and asked me if I was ok, I said “no” he said “I am calling 911”

I wonder if the “onlooker” referred to hear is witness “John,” who reported stating during the fight that he was calling 911? If so, then either Zimmerman is completely wrong about events, or John apparently only stated he was calling 911 after Trayvon was already dead.

At this point I slid out from underneath him and got on top of the suspect holding his hands away from his body.

This could explain why there is contradicting witness testimony regarding who was on top and who was on bottom of the fight. The witness who reported seeing someone in a “white shirt” on top may have seen Zimmerman pinning Trayvon after he was already dead.

-Susan

The Source of the ICC’s Privileges and Immunities in Libya: Experts on Missions Immunity, Customary Immunity, or Immunity by Security Council Resolution?

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Saif Al-Islam Gadaffi, son of recently deposed Libyan dictator Muammar Gaddafi, was captured last year by local officials in Zintan, Libya, and has been held there ever since. Although the International Criminal Court has had an arrest warrant issued for Saif since June 2011, and since Saif’s capture been requesting that Libya transfer him into the ICC’s custody, Saif has remained in the control of the Zintani militia.

Last week, an ICC defense lawyer and her translator were arrested in Libya for “spying” and for providing illegal assistance to Saif. The Zintani militia that detained Melinda Taylor, the defense attorney appointed by the ICC to represent Saif Al-Islam, are now claiming that she had transmitting secret letters to her client. Two other ICC officials who were with Taylor were not arrested, but opted to remain with her and her Lebanese translator:

The four were in Zintan so that Taylor could meet with her client, Saif al-Islam Qaddafi, to discuss his defense in the ICC case against him. The court issued an arrest warrant last June for Saif, as well as his father Muammar and former Libyan intelligence chief Abdullah al-Senussi, for crimes against humanity committed during the regime’s brutal attacks on civilian demonstrators in early 2011. Now, the Libyan authorities claim that Taylor and Assaf exchanged documents with Saif, and had “recording equipment” with them during the interview. Neither activity would be unusual for an attorney-client meeting, but Taylor and her team are supposedly being investigated on charges of spying. Libyan authorities have said that they will be held for 45 days, and frequent references to “threats to national security” do not inspire confidence in their fate thereafter.

The reaction of the international community to the arrests has been oddly muted, perhaps in part due to uncertainty regarding the legal status of Libya’s actions under international law. Although Taylor was an ICC agent who was arrested for performing her official duties, it is not clear that international law actually prohibits Libya from arresting Taylor in this situations. To muddy the waters even further, the arrest of the ICC agents follows right on the heels of Libya’s challenge to the ICC’s jurisdiction to even hear the case against Saif — the first such jurisdictional challenge that the ICC has faced in it short history.

The odd and unfortunate situation has come about as a result of the nature of the ICC’s jurisdiction over Saif Al-Islam, which was not derived from any treaty obligation incurred by Libya but rather through a resolution of the U.N. Security Council Resolution. Resolution 1970 (2011), which authorized the initial multilateral intervention in Libya, also contained a provision referring the situation in Libya to the ICC:

ICC referral

4.  Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

5.  Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

6.  Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

7.  Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

8.  Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

The ICC’s authorization to prosecute human rights violations in such situations is provided via Article 13(b) of the Rome Statute. Referral of a case by the Security Council is the only manner by which jurisdiction can be conveyed to the ICC for a crime committed in the territory of a state that is not a party to the Rome Statute.

But even with a Security Council referral, the ICC’s jurisdiction is not necessarily guaranteed — the other jurisdictional requirements contained in the Rome Statute must also be met. Although Libya did not voluntarily authorize ICC jurisdiction, it still has the right to challenge that jurisdiction under Article 19 of the Rome Statute. Libya is in fact currently pursuing a jurisdictional challenge in regards to the ICC’s jurisdiction to prosecute several of the would-be defendants, including Saif. Libya asserts that ICC jurisdiction would be improper under Article 17(1)(a) of the Rome Statute, as “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” In Libya’s May 1, 2012 filing to the ICC, Libya moved to have the case deemed inadmissible before the ICC, claiming that the new Libyan transitional government was properly pursuing criminal charges against Saif and the other defendants through Libya’s domestic criminal justice system.

The ICC has indicated, however, that it is not going to concede jurisdiction without a fight. On June 5th, just two days before the kidnapping of Taylor’s party, the Office of the Prosecutor (OTP) filed its response to Libya’s challenge. Although it was conceded that Libya had in fact brought domestic charges against the defendants, which under principles of complementarity would prevent the ICC from trying the case, the OTP concluded that Libya has failed to demonstrate that it has the practical ability to actually carry out a prosecution of Saif Al-Islam Gadaffi itself:

The Applicant has demonstrated that it has taken concrete steps to investigate the same person for the same conduct at issue in the case before the ICC. Further, there is no evidence to suggest that the Applicant is not genuine in its investigation and prosecution of Saif Al-Islam. However, there remain questions about its ability to advance the investigation and prosecution of Saif Al-Islam. Therefore the Court should accept the Applicant’s offer to provide further information, including the testimony of the General Prosecutor, to provide clarity on its ability to advance its case.

The OTP was concerned in particular about Libya’s failure to afford Saif Al-Islam with defense counsel:

However, despite the Applicant’s predictions at the time it filed its challenge on 1 May 2012, it does not appear that Saif Al-Islam has received a defence lawyer  within Libya, a precondition to presenting to him the charges and completing the  investigation under Libyan law”. This lack of progress could be related to the restrictions established because the Zintan militia exercise custody over him. The Prosecution is mindful of the substantial challenges faced by the Applicant, but this apparent lack of progress raises questions about whether the Applicant is able to “otherwise carry out its proceedings” within the meaning of Article 17(3). Therefore, the Prosecution submits that the Court should require the Applicant to appear before the Court to provide additional information on its ability to advance the investigation and prosecution of Saif Al-Islam.

Given the timing of these events, it could seem at first glance that the arrest of Taylor on June 7th was in retaliation to, or at least related to, the OTP’s filing on June 5th indicating that it intended to proceed with criminal charges before the ICC. There is another wrinkle, however — the Libyan transitional government was not responsible for the arrest of the ICC officials. Rather, it was a local Zintani militia group — the same group holding Saif Al-Islam — that detained the ICC defense counsel, apparently at the militia’s own initiative. The Zintani militia group has been holding Saif as a way of gaining leverage over the federal Libyan government, and now they may have decided to double up on their claims by taking the ICC staff as prisoners too.

So the whole situation is a mess right now. The ICC is claiming that it maintains jurisdiction to prosecute Saif for war crimes due, in part, to Libya’s inability to provide Saif with access to counsel. Local government actors in Libya have now kidnapped the ICC defense counsel that was being provided to Saif, for their own motives, which tends to confirm the ICC’s assessment regarding Libya’s ability to try Saif and the other defendants in its own courts. And the Libyan transitional government is still trying to argue that the ICC shouldn’t have jurisdiction to bring charges, but lacks sufficient control over the Zintani militia to either try Saif for itself or to free the ICC staff.

But while the arrest of the ICC defense counsel is clearly a poor diplomatic move on Libya’s part, it is less certain whether it also constitutes a breach of international law. Some commentators have suggested that the ICC staff have immunity from domestic judicial processes, but the source of such immunity is debatable.

1. The ICC’s Agents Have No Immunity in Libya through the Rome Statute. States Parties to the Rome Statute are obligated by Article 48 to provide the ICC with “such privileges and immunities as are necessary for the fulfilment of its purposes.” But Libya is not a party to the Rome Statute, and is not bound by any international obligations through that instrument. (Nor is Libya a party to the Agreement on Privileges and Immunities of the International Criminal Court, which supplements and expands the immunity of Court officials, but likewise only applies to states that are signatories to the instrument.)

Even though the Security Council has referred the situation in Libya to the ICC, that does not have the effect of conferring the treaty obligations contained in the Rome Statute onto Libya.  Paragraph 4 of Resolution 1970 did not, in itself, curtail any of Libya’s jurisdiction as sovereign, but instead expanded the jurisdictional reach of the ICC to permit it to bring charges against violators of human rights in Libya — in effect, the Security Council has delegate a sliver of its own administrative jurisdiction to the ICC, to permit it to bring charges against a crime that was otherwise not within its jurisdictional ambit. But the ICC was not granted any rights to enter the territory of a sovereign entity which had not already ceded those rights to the ICC via treaty.

[Update: Over at EJIL Talk, Dapo Akande makes the argument that the treaty obligations contained in the Rome Statute can also be imposed on a state by Security Council resolution. Article 48 of the Rome Statute, he argues, now applies to Libya

because the UN Security Council, in referring the Libyan situation to the Court, has imposed the Statute on Libya. In SC Res 1970, the SC decided that Libya shall cooperate with the ICC. That resolution does not make it explicit that this is an obligation to cooperate in accordance with the Statute. However, … the obligation to cooperate under SC Res 1970 is an obligation to cooperate in accordance with the Statute. It is the Rome Statute that defines and sets out the boundaries of Libya’s obligation to cooperate. Art. 48 is part of that obligation of cooperation. Just as ICC  parties have an obligation to accord immunities to ICC personnel, so does Libya. Indeed, this provision is absolutely crucial to the cooperation obligation. Were Libya not obliged to provide immunity to ICC personnel working on the situation referred to by the Security Council, the obligation to cooperate would be rendered meaningless. Libya would be able to frustrate ICC investigation simply by using its national law and legal processes to harass ICC staff.

This explanation is not entirely satisfying to me. Akande’s argument is that, through a one line resolution ordering Libya to “cooperate” with the ICC, the Security Council has essentially forced Libya to become party to the Rome Statute and incur all the obligations of a party to that treaty. But which parts of the Rome Statute? All of them? Or just the ones that the Court finds convenient to invoke? Why is Article 48 automatically applied to Libya, but not Article 88 — which mandates that “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part”? Or may Libya propose changes to the ICC’s Rules of Procedure and Evidence pursuant to Article 51? And what about financial contributions to the ICC — is Libya on the hooks for those too?

Secondly, the text of the Rome Statute does not necessarily support the claim that the entirety of the instrument applies to cases where jurisdiction is invoked through Article 13(b) — after all, the Rome Statute does clearly provide at different points provisions governing “States Parties” and other provisions that govern simply “a State.” This would imply “States Parties” refers only to parties, while “a State” includes both parties and states that have voluntarily accepting jurisdiction in a specific case or had jurisdiction forced upon them.

But, the Rome-Statute-Applies-Automatically argument certainly does make things more convenient. I’d just be more comfortable with it if the Security Council was required to be explicit before it could mandate a state’s accession to a treaty.]

2. The ICC officials have no immunity from domestic judicial process, but by arresting them, Libya is failing “to cooperate fully with the [ICC] and the Prosecutor”, as it is required to do by Security Council resolution. Over at Opinio Juris, Kevin Jon Heller has suggested that the immunity of the ICC officials derives solely from Security Council Resolution 1970. However, strictly speaking, this is not an argument that the ICC officials have “immunity.” That is, it is not that Taylor and her interpreter have a special immunity from judicial process under international law, but rather that Libya had a more general prohibition against failing to cooperate with the ICC. In the present situation, it so happens that  Libya’s failure “to cooperate fully with and provide any necessary assistance to” the ICC took the form of Libya’s decision to arrest the ICC’s officials. However, Libya would be equally in violation of international law had it, say, built a giant wall around Zintan that prevented Taylor and her interpreter from entering.

The claim that the ICC’s “immunity” is nothing more than a side effect of the Security Council’s mandate of cooperation is also supported by Article 87 of the Rome Statute, and Article 17 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. Article 17 of the Negotiated Relationship, which is titled “Cooperation between the Security Council of the United Nations and the Court,” provides at Section 3 that:

Where a matter has been referred to the Court by the Security Council and the Court makes a finding, pursuant to article 87, paragraph 5 (b) or paragraph 7, of the Statute, of a failure by a State to cooperate with the Court, the Court shall inform the Security Council or refer the matter to it, as the case may be, and the Registrar shall convey to the Security Council through the Secretary-General the decision of the Court, together with relevant information in the case.  The Security Council, through the Secretary-General, shall inform the Court through the Registrar of action, if any, taken by it under the circumstances.

In other words, the Security Council is the ultimate arbiter of whether or not a state is failing to abide by its command that the state in question cooperate with the ICC, and is the entity that is responsible for taking action when its orders are not being followed. Although the ICC has the ability to notify the Security Council of any incidents that may arise, the state’s obligation is solely to the Security Council and not to the Court. So, at least pursuant to Article 87 of the Rome Statute or Article 17 of the Negotiated Relationship, the proper procedure for the ICC in this situation is to refer the issue to the Security Council and let them decide how to figure it out. So far, however, the only sort of decisive action that the Security Council has taken in response to the matter is to release a press statement:

The members of the Security Council express serious concern over the detention in Libya since 7 June 2012 of the International Criminal Court (ICC) staff members, and urge Libyan authorities at all levels and all concerned to work towards immediate release of all the ICC staff members.

The members of the Security Council emphasize that it is the legal obligation of Libya under the Council’s resolution 1970 (2011) to cooperate fully with and provide any necessary assistance to the ICC pursuant to that resolution.

This press statement indicates that the Security Council is of the position that Libya’s obligation to release the ICC staff members is derived from resolution 1970, and not from an alternative source under international law. However, although Libya is certainly obligated to cooperate with the ICC pursuant to the Security Council resolution, this may not be the sole source of the rights of the ICC’s agents in Libya. Taylor, as the ICC appointed defense counsel for Saif, may also have true immunity under international law through two other sources, discussed below.

3. The ICC’s Agents May Have Immunity as Agents on Missions Pursuant to the Convention on the Privileges and Immunities of the United Nations. Because Libya has not ceded any of its jurisdiction to the ICC, any immunity that the ICC officials have comes not through the Rome Statute, but through the U.N. conventions to which Libya is a party. Pursuant to the Convention on the Privileges and Immunities of the United Nations (CPIUN), the U.N.’s officials are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.” However, as the ICC is not itself a U.N. agency, the ICC’s personnel are not covered by the terms of that instrument, at least not directly. But it is possible that, at least in this particular case, and owing to the nature of the ICC’s involvement in Libya, ICC officials have agent on mission immunity pursuant to the CPIUN.

Section 22 of the Convention on the Privileges and Immunities of the U.N. provides for immunity not just for U.N. officials, but also for “Experts on Missions for the United Nations”:

Experts  (other  than officials coming within the scope of article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded … immunity from personal arrest or detention and from seizure of their personal baggage[.]

Could the ICC defense counsel be Experts on Missions for the U.N., and therefore immune from criminal prosecution pursuant to the CPIUN? After all, the ICC’s jurisdiction to prosecute Saif was provided by the U.N.’s Security Councilm, and was supplemented by Paragraph 5 of Resolution 1970, which instructed that “Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” The ICC was only in Libya pursuant to the Security Council’s mandates, performing work that the Security Council had requested.

The question turns upon the meaning of “Experts on Missions” under the treaty. The ICJ’s Advisory Opinion

On the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations would lend some support to the claim, anyway:

The Court will … consider first what is meant by “experts on missions” for the purposes of Section 22, and then  the meaning to be attached  to  the expression “period  of  [the] missions”[.] …

The  General Convention  gives  no definition  of  “experts  on missions”. Al1 it does is to clarify two points, one negative and the other positive. From Section 22 it is clear, first that the officials of the Organization, even if chosen in consideration of their technical expertise in a particular field, are not included in the category of experts within the meaning of that provision; and secondly that only experts performing missions for the United Nations are covered by Section 22. The Section does not, however, furnish any indication  of  the nature,  duration  or place  of these missions.

Nor is there really any guidance in this respect to be found in the travaux préparatoires of the General Convention. The Convention was initially drafted and submitted to the General Assembly by the Preparatory Commission set up at San Francisco in June 1945; that initial draft did not contain anything corresponding to the present Article VI. That article was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee to examine the draft, but the contemporary official records do not make it possible to ascertain the reasons for the addition

The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an officia1 of the Organization, and to guarantee them “such privileges and immunities as are necessary for the independent exercise of their functions”. The experts thus appointed or  elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission. …

To sum up, the [International Court of Justice] takes the view that Section 22 of the General Convention is applicable to persons (other than United Nations officials) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions; that during the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel; and that those privileges and immunities may be invoked as against the State of nationality or of residence unless a reservation to Section 22 of the General Convention has been validly made by that State.

Although Taylor was clearly acting on behalf of the ICC at the time of her arrest, she was acting on a mission that had been delegated to the ICC by the Security Council. Possibly, then, that is sufficient to grant her immunity from prosecution under Article 22 of the CPIUN, as the ICJ’s Advisory Opinion is clear that it is not necessary for the expert to have a contract with the U.N. or to be paid by the U.N. to be entitled to immunity. “Experts on Missions” are determined not by their administrative title, but by the nature of their mission, and their immunity extends to the extent necessary to permit the expert to carry out her duties.

As Taylor was on a mission to serve as defense counsel for Saif Al-Islam, and that mission was performed at the (albeit indirect) behest of the Security Council, and as Libya’s arrest of Taylor interfered with the ICC’s ability to afford a criminal defendant with the right to counsel that is provided both by international law and by the Rome Statute, Taylor may have had immunity from prosecution pursuant to the CPIUN.

4. The ICC’s Agents May Have Functional Immunity by Operation of Customary International Law. It is also possible that the ICC officials’ immunity from criminal prosecution exists entirely apart from any treaty or convention. Although diplomatic immunity is often codified in treaties and other international instruments, it is also a part of customary international law, at least as it applies to the foreign officials of sovereigns. But do agents of international organizations, like the agents of foreign states, posses functional immunity under customary international law?

Functional immunity, as opposed to the more general immunity ratione personae granted to heads of states and other diplomatic bigwigs, is the immunity of foreign officials in relation to acts performed in their official capacity. If Taylor had been acting on behalf of a foreign state rather than an international organization, she would not be entitled to any general immunity under customary international law, but she would likely be entitled to functional immunity. As counsel for Saif, it was Taylor’s performance of her official duties that lead to her arrest — and thus functional immunity would presumably apply.

However, Taylor was not acting in Libya on behalf of a foreign state, but on behalf of an international organization. Whether or not the customary norm of diplomatic immunity extends to officials acting on behalf of international organizations in general, or to officials of the ICC in particular, remains an unsettled question. There is conflicting domestic case precedent cutting both ways, and although the state practice is largely there, measuring the opinion juris in this situation is made somewhat difficult by the lack of official pronouncements.

In any event, the question of the ICC official’s diplomatic immunity under customary international law is more convoluted than I care to get into in this blog post, but there is a decent argument to be made that such a norm  of immunity does in fact exist. Even if agents of international organizations are not granted a blanket immunity under CIL, for instance, they could have immunity in circumstances such as those surrounding Melinda Taylor’s presence in Libya. It could also be bolstered in this particular case by other tenants of international law, as a showing that the functions carried out by Taylor as an IO agent, and for which she is arrested, are the sort of functions for which IO agents are customarily immune from sovereign interference, even if there is no generally applicable immunity.  For instance, human rights law provides for a right to assistance of counsel in all criminal proceedings —  and a norm providing ICC defense counsel with immunity from criminal prosecution that is intended to interfere with that right would be consistent with both human rights norms and with the norms of diplomatic immunity as applied to states. Similarly, this customary norm of IO immunity could be held to apply automatically to IO agents that are in a state pursuant to a lawfully ordered intervention. That is, when the Security Council takes the step of interfering with a state’s sovereignty by ordering that the state accept certain IO officials and agents into its territory, there could be an implicit norm that the Security Council has also usurped the state’s sovereign right not merely to exclude that person, but also to pursue criminal charges against that person for engaging in the acts that they were sent to the state to perform.

-Susan

Alabama Passes Law Against U.N. Conspiracy to Destroy Freedom

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In my previous post on the United State’s failure to ratify the U.N. Convention on the Law of Sea, I discussed how U.S. opposition to international organizations as a whole has manifested as symbolic opposition to that treaty in particular. Because of the relatively low stakes that have been at play when it comes to ratifying or not ratifying the Convention, political factions have largely ignored the merits of joining LOST, and instead have turned ratification of LOST into a more general referendum on whether or not international organizations are bad for America.

It turns out that there is currently an even better example of such symbolic anti-UN posturing. Conservative groups hostile to U.S. engagement with international organizations have a new cause célèbre to advocate against: Agenda 21.

Agenda 21 is a United Nations “action plan” designed to promote an international commitment to sustainable development. It was adopted by the UN in 1992 as a “a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area in which human impacts on the environment.” But Agenda 21 is a squishy, aspirational document. It has zero teeth, and is more akin to an advertising campaign than to international law. It is not promoted by any specific bloc of states, and it is not designed to defuse any active political conflicts.

Which means Agenda 21 is the perfect anti-UN scapegoat. “Opposing” Agenda 21 is harmless and devoid of immediate practical consequences — there is no risk of offending any specific state by opposing it, nor any risk that opposition to Agenda 21 could have any serious consequences to our international relations.

And so Agenda 21 has been chosen as a pet cause to rally anti-UN sentiment behind. To many conservative organizations, Agenda 21 is a nefarious plot designed to destroy national sovereignty, eliminate private property rights, and establish a socialist world government. It is alleged that Agenda 21 seeks the following goals: [PDF]

  • The step by step abolition of private property, primarily through the implementation of the Wildlands Project and Smart Growth.
  • Education of youth to prepare them for global citizenship.
  • Control and ultimate reduction of human population

Moreover, they believe that Agenda 21 is a real and immediate threat to American freedoms, which will eliminate capitalism and property rights through the introduction of initiatives such as “Smart Growth development standards in every metropolitan area within the United States,” which would implement plans for “a concentration of high rise living, ‘mixed use buildings,’ ‘walkable communities’ with mass transit such as light rail, and bicycle trails.” God save us all.

In January of this year, the Republican National Committee decided to don the tinfoil cap as well, and adopted a “Resolution Exposing United Nations Agenda 21” into its national party platform:

WHEREAS, the United Nations Agenda 21 is a comprehensive plan of extreme environmentalism, social engineering, and global political control that was initiated at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, in 1992; and,

WHEREAS, the United Nations Agenda 21 is being covertly pushed into local communities throughout the United States of America through the International Council of Local Environmental Initiatives (ICLEI) through local “sustainable development” policies such as Smart Growth, Wildlands Project, Resilient Cities, Regional Visioning Projects, and other “Green” or “Alternative” projects; and,

WHEREAS, this United Nations Agenda 21 plan of radical so-called “sustainable development” views the American way of life of private property ownership, single family homes, private car ownership and individual travel choices, and privately owned farms; all as destructive to the environment; and,

WHEREAS, according to the United Nations Agenda 21 policy, social justice is described as the right and opportunity of all people to benefit equally from the resources afforded  us by society and the environment which would be accomplished by socialist/communist redistribution of wealth; and,

WHEREAS, according to the United Nations Agenda 21 policy National sovereignty is deemed a social injustice; now therefore be

RESOLVED, the Republican National Committee recognizes the destructive and insidious nature of United Nations Agenda 21 and hereby exposes to the public and public policy makers the dangerous intent of the plan; and therefore be it further

RESOLVED , that the U.S. government and no state or local government is legally bound by the United Nations Agenda 21 treaty in that it has never been endorsed by the (U.S.) Senate, and therefore be it further

RESOLVED, that the federal and state and local governments across the country be well informed of the underlying harmful implications of implementation of United Nations Agenda 21 destructive strategies for “sustainable development” and we hereby endorse rejection of its radical policies and rejection of any grant monies attached to it, and therefore be it further

RESOLVED, that upon the approval of this resolution the Republican National Committee shall deliver a copy of this resolution to each of the Republican members of Congress, all Republican candidates for Congress, all Republican candidates for President who qualify for RNC sanctioned debates, and to each Republican state and territorial party office and recommend for adoption into the Republican Party Platform at the 2012 Convention.

In response to the RNC’s Resolution, state legislatures all around the U.S. have been bravely combatting the threat of United Nations Agenda 21, by passing symbolic resolutions declaring Agenda 21 to be a threat to capitalism, the U.S., and single family homes.

It’s kind of poetic, in a way. Largely symbolic resolutions, being passed to combat largely symbolic declarations.

But it’s also completely insane. True, there is not much harm to be had from such antics, but to some degree it could undermine the Federal government’s ability to speak in a unified voice when it comes to international environmental law and policy. And also it makes America look like a bunch of complete idiots.

So far, three states  —  Kansas, Tennessee, and Alabama —  have passed resolutions or laws intended to protect America from Agenda 21.

Of the three, Alabama wins the award for nuttiest legislative initiative. Last week, Alabama’s governor signed into law an act prohibiting Alabaman state agencies from entering into any contractual relations with unspecified “non-governmental and inter-governmental organizations”:

Under existing law, the state, subject to certain federal laws or rules, has the right to develop its environmental and developmental policies. This bill would prohibit the State of Alabama and its political subdivisions from adopting and developing environmental and developmental policies that, without due process, would infringe or restrict the private property rights of the owner of the property.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

(b) The State of Alabama and all political subdivisions may not adopt or implement policy recommendations that deliberately or inadvertently infringe or restrict private property rights without due process, as may be required by policy recommendations originating in, or traceable to “Agenda 21,” adopted by the United Nations in 1992 at its Conference on Environment and Development or any other international law or ancillary plan of action that contravenes the Constitution of the United States or the Constitution of the State of Alabama.

(c) Since the United Nations has accredited and enlisted numerous non-governmental and inter-governmental organizations to assist in the implementation of its policies relative to Agenda 21 around the world, the State of Alabama and all political subdivisions may not enter into any agreement, expend any sum of money, or receive funds contracting services, or giving [sic] financial aid to or from those non-governmental and inter-governmental organizations as defined in Agenda 21.

According to the executive director of the Alabama Republican Party, the Alabama Act is intended to “shelter Alabamians” from “a precursor for the creation of a world government.”

Tennessee and Kansas both passed more symbolic anti-Agenda 21 resolutions. The one passed in Tennessee was almost identical to the Resolution as adopted by the Republican National Committee, but  Tennessee did at least take the step of correcting one of the resolution’s blatant inaccuracies. It replaced this resolving paragraph

BE IT FURTHER RESOLVED, that neither the U.S. government nor any state or local government is legally bound by the United Nations Agenda 21 treaty in that it has never been endorsed by the U.S. Senate

with:

BE IT FURTHER RESOLVED, that neither the U.S. government nor any state or  local government is legally bound by the United Nations Agenda 21 in that it is not treaty [sic] which has ever been endorsed by the U.S. Senate.

One would think that the qualifier “which has ever been endorsed by the U.S. Senate” would be rendered unnecessary by the fact that Agenda 21 is not, in fact, instrument that could be endorsed by the Senate in the first place. Apparently not.

In addition to the three states that passed bills, an Anti-Agenda 21 bill remains pending in Louisiana. Luckily, although Georgia, Arizona, and Minnesota also considered similar resolutions, those states ultimately decided against joining the conspiracy theorists. New Hampshire’s House of Representatives likewise had the good sense to kill a similar bill, which would have created a committee to “study procedures to prevent the implementation of United Nations Agenda 21 into the state, counties, regional commissions, towns, and cities; other implementation by nongovernmental organizations; the clarification of constitutional issues relevant to the study; and any related concerns with the implementation of United Nations Agenda 21.”

But Alabama and the Republican National Committee, at least, are not going to stand idly by while our freedoms and rights are trampled by the international community. Without laws symbolically denouncing this socialist conspiracy, our great Nation could be at risk from the horrors of mixed-use buildings and bicycle trails.

-Susan

Sovereignty, Soft Power, and the U.S.’s Refusal to Ratify the UN Convention on the Law of the Sea

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The United Nations Convention on the Law of the Sea (“UNCLOS”) is up for debate before the U.S. Senate once again, which means the perennial debate over whether the U.S. should finally ratify the treaty is currently making its rounds through the media. Last week, five former Secretaries of State — Henry Kissinger, Condoleezza Rice, George Shultz, James Baker, and Colin Powell — joined in on the effort, publishing an OpEd in the Wall Street Journal on Time to Join The Law of the Sea Treaty: The U.S. has more to gain by participating in convention deliberations than by staying out. The former Secretaries of State lay out their case for why ratifying UNCLOS in our national security, economic, and sovereign interests.

Unfortunately, judging from the tenor of other recent articles and political statements regarding UNCLOS, this latest round of debate before the Senate will not be any more productive at achieving that end than prior rounds have been.

The political wrangling over whether or not to ratify the UNCLOS has long been stalled out in the U.S., having been transformed into an argument between competing ideals rather than a policy debate. Opposition to UNCLOS is often not really about UNCLOS; the question has instead become a symbolic fight between two opposed camps, the sovereignists and the internationalists, regarding the U.S.’s proper role in the international community. Are we going to protect the democratic interests of the American people from foreign interference with our national interests by non-democratic international organizations? Or are we going to be a good little team player, and join UNCLOS to demonstrate just how committed the U.S. is to cooperation and kumbaya?

As a result, the arguments against ratifying UNCLOS tend to mention “sovereignty” a lot, without ever going into too many specifics, or else recite a list of generic problems inherent in just about any international agreement, without ever specifying why UNCLOS is more objectionable than any other treaty. In recent months, however, the argument de jure of the sovereignists has been that the U.S. cannot join UNCLOS because of China.

Because of what about China, exactly? Well, that part is not entirely clear. Although the specifics of the China argument are often murky, its general formulation usually goes something like this:

Herein lies a major danger in U.S. ratification of UNCLOS. In adopting, promoting, and acting on new interpretations of international law, China is attempting to upset the status quo and establish new norms of maritime behavior. By signing up to UNCLOS, the United States might unintentionally signal approval of these errant interpretations.

What this argument lacks in logic, it makes up for with self-promoting claims of American virtue, and how the United States — unlike, say, China or Iran — has no need to enter foreign treaties, since we already abide by international law. The sub-argument for this claim against UNCLOS is the “but we’re already obeying UNCLOS so why should we sign it” argument:

Besides, we are adhering to UNCLOS. It’s the Chinese that are trying to redefine UNCLOS according to their own purposes, without re-negotiating the contract, and in so doing undermining customary law.

Of course, this claim is completely contradicted by the arguments of yet other UNCLOS detractors. John Bolton, the former U.S. ambassador to the UN, suggested in his own Wall Street Journal OpEd that the U.S. shouldn’t sign on to UNCLOS because it gives us the power to redefine the law of the sea for our own purposes. By not being part of UNCLOS, he argues, we can act at will, while China will be stuck trying to find loopholes in the treaty:

With China emerging as a major power, ratifying the treaty now would encourage Sino-American strife, constrain U.S. naval activities, and do nothing to resolve China’s expansive maritime territorial claims. … If the Senate ratifies the treaty, we would become subject to its dispute-resolution mechanisms and ambiguities. Right now, since we are the world’s major naval power, our conduct dominates state practice and hence customary international law—to our decided advantage.

So, to summarize these claims: (1) Joining UNCLOS would be bad because, through China joining UNCLOS, China has been able to redefine the law of the sea by arguing for new interpretations of it; and (2) Joining UNCLOS would be bad because, through the U.S. not joining UNCLOS, the U.S. has been able to redefine the law of the sea through its own practices.

On the other hand, the arguments in favor of UNCLOS are largely premised upon a laundry list of supposed soft power benefits that are to be gained through ratifying the treaty. The OpEd from the former Secretaries of State are a good example of how nebulous and unsatisfying these alleged benefits can sound, in contrast to the claims of the sovereignists:

As the world’s pre-eminent maritime power with one of the longest coastlines, the U.S. has more than any other country to gain—and to lose—based on how the convention’s terms are interpreted and applied. By becoming party to the treaty, we would strengthen our capacity to influence deliberations and negotiations involving other nations’ attempts to extend their continental boundaries.

Which is probably why the pro-UNCLOS factions have, for nearly two decades now, failed to get UNCLOS ratified. No matter how you try and spin it, “increasing our capacity to influence deliberations” sounds like a rather flimsy prize, especially when it comes at the cost of American sovereignty.

But this lack of substantive debate likely persists due to the fact that the practical effects for the United States for ratifying UNCLOS, whether negative or positive, have been relatively minor. To date, the U.S. has done a decent job of splitting the baby when it comes to UNCLOS, consistently abiding by most of UNCLOS’s provisions while simultaneously claiming to only be following customary law. As a result, the question of whether or not the U.S. should formally ratify the convention has been largely academic.

Because the U.S. has been a superpower throughout all relevant points of UNCLOS’ existence, whether the U.S. joins or doesn’t join UNCLOS has made so little difference that the U.S. could afford to ignore the debate altogether, or at least make it into a question of lofty principles rather than concrete policy. Which is why the U.S. has succeeded in being the only major power that has avoided ratifying UNCLOS — the stakes just haven’t been that high.

But UNCLOS has been in force for eighteen years now. U.S.’s strategy of refusing to commit one way or another will not come without a price for much longer. Starting with 60 member nations when it came into effect in 1994, UNCLOS now has 162 members, including every Western nation other than the United States. During that time period, UNCLOS has been steadily solidifying, from its initial existence as a recital of customary international law, into the widely-adopted international institution it is today.

With 80% of the world’s nations party to it, UNCLOS is now the framework by which States negotiate the division of sovereignty interests over the world’s oceans. The law of the sea is no longer made through pure customary law, as it was in the 18th and 19th centuries; the frame for the debate has changed, and as a result UNCLOS and law of the sea are now effectively synonymous.

This is not to say that the rules under the UNCLOS regime are vastly different from what the rules were under the old pure-CIL regime. The actual substance of the law of the sea has not changed all that much — in most situations, complying with customary international law of the sea means complying with UNCLOS, and vice versa.

But even if the rules themselves haven’t changed, the ways in which those rules could change has been altered. UNCLOS is now the mechanism to which the overwhelming majority of states turn when they feel a need to settle a question regarding the content of the law of the sea. True, the old law of the sea is not likely to experience much upheaval, and UNCLOS is less important there — those customary norms were developed over centuries of seafaring, as states scuffled and squabbled with one another until an adequate balance of their rights was finally struck, and as a result those rules now enjoy a sort of tenure under international law.

But UNCLOS also provides the framework under which new rules are crafted, tinkered with, implemented. When, due to political or environment change, novel situations arise — be it the development of new deep seabed mining techniques, the opening of the Northwest passage, commercial investments in Antarctica, rising international sea levels, or what have you — states will have to find new ways of drawing jurisdictional lines and of coordinating their activities. Right now, the primary institution for establishing those new ways is through UNCLOS. UNCLOS provides both the procedural mechanisms for how and when states actually talk to one another, and the substantive rules that they play by.

When new jurisdictional schemes need to be created, states anchor their claims with references to UNCLOS, and expect states advancing competing interests to do the same. States that try to advance their interests outside of — or worse yet, in contradiction with — this framework are punished for it, occasionally through hard procedural mechanisms, but more often through a softer loss of diplomatic power. True, using the social framework of UNCLOS will not be nearly as effective as using the world’s strongest navy, when it comes to advancing the national interest — but the UNCLOS framework is present in every debate and discussion among UNCLOS members regarding international law of the sea, setting the scene for international relations for years to follow. U.S. naval ships, in contrast, are only invoked on the occasions where the U.S. direct interests are on the line, and are rather imprecise tools when it comes to shaping the precise contours of international law.

John Bolton, in the OpEd quoted above, displayed a somewhat questionable understanding of the concept of “state practice” by making the dubious assertion that the U.S. can unilaterally establish state practice, simply by virtue of its status as a superpower. But even if this claim were true, it fails to recognize a corresponding fact — that the overwhelming majority of state practice and opinio juris both lies behind using UNCLOS’s mechanisms as a means of developing international ocean policy. Superpower or not, the U.S.’s “state practice” of refusing to operate through UNCLOS hardly outweighs the state practice of the 162 nations who do use the institution. The institutional weight of UNCLOS is becoming firmly entrenched, and the longer the U.S. refuses to play ball, the less opportunity the U.S. will have to shape that institution in ways favorable to U.S. interests.

When it comes to the generation and development of customary international law of the high seas, UNCLOS is currently the biggest game in town. In a decade or so, it will be the only one. China, it seems, has realized this already. Maybe the next time ratification of UNCLOS comes up for vote before the Senate, the U.S. will have finally realized it too.

-Susan