Refusing To Take The Pledge

The pledge of allegiance in the United States, recited by millions of schoolchildren on a daily basis has once again caught the public's attention. Unlike those who take issue with the pledge's "one nation, under God" phrasing, one ten year named Will Phillips objects to standing up at the appointed time and participate in a collective and daily rote recitation of the pledge in his fifth grade class. However, he does so for other reasons. In Will's own words: “I really don't feel that there's currently liberty and justice for all.” This is in connection with discriminatory laws that prohibit gays and lesbians from entering same-sex marriages or the ability to adopt in Arkansas as well as other states in the union.

During the week of October 5th, when Will began his refusal to stand up and take the pledge, he had a rather terse and open confrontation with a substitute teacher. The confrontation resulted in Will respectfully advising the substitute teacher that she could "go jump off a bridge" after she admonished that Will's mother and grandmother would not be pleased by his persistent refusal to recite the pledge. For Will's "insubordination" he was dispatched to the principal's office. The principal instructed Will to look up information on the flag and what it represents, although it seems rather clear that Will already had a sense of what he felt it meant at present and what it ought to mean.

For Will's continued refusal, he has received support not only from his parents but some colleagues at school. However, he has also been the target of bullying and epithets for his defiance. Still he remains steadfast and resolute in his positions and interpretations about what liberty and justice for all ought to mean.

What can these circumstances tell us about the nature of law and legal subjectivity? Well for one, there are more than just one legal order or source of law at play here. Clearly, there are the laws mandated by the government and state actors. However, as scholars of legal pluralism have noted, there are multiple normative legal orders that operate outside of the state that impact upon the lives and decisions of those whom they touch. Then there are the rules and values espoused by Will's family. Furthermore, there are those norms that operate within Will's peer group that exact punishment on those who fail to conform.

What is in play here are a clash of these multiple normative legal orders - each of which, Will experiences on some level. First, there is Will's family that openly espouses the right to equality and justice for the gay community as part of a larger vision of equality and equal protection. In his mother's words - "We raised him to be aware of what's right, what's wrong, and what's fair.” Second, there is the state that mandates the recitation of the pledge of allegiance and the values that are ascribed to it while it denies a specific community some of the very concepts that are supposedly inherent in its recitation. Its agent in this respect was the substitute teacher who attempted to coerce Will to join in and participate against his wishes. Third, there is his peer group which includes those who support his decision but also others who attempt to coerce and bully Will into conformity.

Like all human beings, Will is impacted and influenced by the various legal orders that he is exposed to. However, equally, he is not a mere object upon whom law is simply imposed by these various legal regimes. Will has agency and the capacity to interpret legal norms for himself. As McGill University Faculty of Law professor, Rod MacDonald once asserted, "non-conforming behaviour in any particular regime is not simply a failure of enforcement or civil disobedience. It may be the reflexion of an alternative conception of legal normativity."

Therefore, for Will (who states: "I've always tried to analyze things because I want to be lawyer"), his continuous refusal to recite the pledge of allegiance is not merely an act of stubborn disobedience with respect to the norms of the state or the peer group that ostracize and denigrate him. It is also the manifestation of a legal mind at work seeking to interpret what is right and fair and to take a firm stand, in light of the normative legal structure that he has allowed to influence him the most - his family, and particularly, the values of equality and human dignity they espouse.

Sources consulted:

John Brummett, "Hey, kid, you'd better make that pledge" Arkansas News (15 October 2009), online: Arkansas News .

David Koon, "A boy and his flag" The Arkansas Times (11 November 2009), online: Arkansas Times .

Roderick A. MacDonald, "Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15 Ariz. J. Int'l & Comp. L. 69 at 79.

Harry Potter and the Supreme Court of Canada

The recent Supreme Court of Canada case of A.C. v. Director of Child and Family Services of Manitoba confirmed the overriding of a 14 year old’s religious refusal of medical treatment. A.C., the teenager in the case, argued that she had been wrongly denied the respect she would have been given had she been 16. The judgment gives a nod to A.C.’s faith, imagines the possibility that someone her age might be competent to make her own medical decisions, and, in the end, underlines the need to protect young people from the grave consequences of their own decisions. As a story that illustrates the complexities of adolescent autonomy, it’s not bad. But, for a full picture of the turbulence of teenage life and its characteristic mix of real needs and authentic strength, a more promising place to look is the fictional world of Harry Potter. As the sixth story – Harry Potter and the Half-Blood Prince - opens in movie theatres this month, we are invited to reflect on adolescence in ways not captured by the language of law.

Right from birth, Harry Potter embodies a mix of true vulnerability and impressive power. It is as a student from ages 11 to 17 that Harry develops his abilities and maturity. In precisely the same period, a network of people provides support for his emerging autonomy. Harry’s story reminds us of the truths of growing up, and of the misleading promise of clean cut lines dividing incompetent youth from capable adulthood.

In the Supreme Court’s story, fourteen year old A.C. is presumed unable to make serious decisions regarding her health. Those are decisions reserved for later in life, specifically age 16 according to the law in A.C.’s home province of Manitoba. But, just as Harry Potter at 14 competes in the Triwizard Tournament, even if officially deemed too young to do so, so too has A.C. had maturity thrust upon her. She is aware of the grave risk to her life caused by her medical condition, and turns to faith for guidance and direction. Neither adolescent at 14 is ‘of age’, but both have voice, beliefs, desires, and capacities. For both teenagers, this is a time of alternating and coexisting vulnerability and confidence. And it is a time of individual dignity. Professor Dumbledore says to Harry, “You have shouldered a grown wizard’s burden and found yourself equal to it”. As A.C. shoulders her own adult burden, her voice deserves attention, and her expressed wishes and beliefs deserve appropriate consideration.

Lines drawn on the basis of age are both ubiquitous and mythical. They necessarily imagine “typical teenagers” at a given age and create rules based on the attached assumptions. Yet, as Harry indicates, not all teenagers are typical. It is in the crucible of crisis that an adolescent like A.C. emerges. Again, in the words of Dumbledore, “Youth cannot know how age thinks and feels. But old men are guilty if they forget what it was to be young…”. Trying to help young people avoid mistakes with serious consequences is part of the responsibility of members of an adolescent’s support network. But J.K. Rowling’s stories show us that trampling on a young person’s expression of desire in the name of protection fails to ensure respect for dignity.

In the sixth book and movie, Harry Potter takes lessons in “apparition”, the adult skill of invisibly moving from one place to another. Apparition requires sustained individual focus on “Destination, Determination and Deliberation”, and its mastery takes much repetition and practice. Also in the sixth movie, Harry is taught the significance of the human soul and the horrific consequences of its destruction. Thus, at the same time that he prepares for adulthood by focusing on where he wants to go, Harry realizes that integrity of body and soul are crucial for getting there. The fictional story of Harry Potter, then, seems ideal for understanding the real story of A.C., a young person of faith considering the spiritual and physical consequences of her choices. All of us, including the judges of the Supreme Court of Canada, may want to stand in line for a movie ticket.

By Shauna Van Praagh,

Associate Professor and Associate Dean, Faculty of Law, McGill

(Author of Adolescence, Autonomy and Harry Potter: The Child as Decision-Maker (2005) 1 (4) International Journal of Law in Context 335).

Repatriating Khadr – Another Round

The Federal Court of Canada issued a decision on 23 April 2009 ordering the Canadian Government to request from the United States the return of Omar Khadr to Canada (Khadr v. The Prime Minister of Canada, 2009 FC 405). This is quite a bold decision by Mr Justice O’Reilly, in that it recognizes for the first time a duty on the part of Canada to intervene to protect its citizens abroad under certain circumstances. It remains to be seen whether the decision will be appealed (every indication is that it will be) and, in the affirmative, whether it will stand.

Since his involvement in hostilities against US troops in Afghanistan in 2002, at the age of fifteen, Khadr has been detained by the United States, first at the US military base in Bagram, Afghanistan, and then in Guantanamo Bay, Cuba. He is accused of war crimes, supporting terrorism, and spying, although the war crimes charge seems to be the only one being actively pursued by US authorities.

There are two aspects to the decision, which are quite distinct but which become fused to a certain extent in the judgment of the Federal Court. The first touches on the legality under international law of the treatment given to Khadr in Bargram and then Guantanamo Bay. The Federal Court decision follows a string of decisions by the highest courts in Canada, the United States, the UK and other jurisdictions, concluding that the way in which Khadr and his fellow detainees were treated violates binding treaties and customary international law, both under international humanitarian law and international human rights. In Khadr’s case, the fact that he was a minor when first detained adds a further layer of illegality to the treatment he received by the authorities.

Who these authorities are is the second aspect of this decision. Clearly, the capture and detention of Omar Khadr are actions of the United States. In order for the Federal Court to issue an order against the Canadian Government in this respect, some link must be found between Khadr’s detention and Canada. Upon Khadr’s arrest in 2002, Canadian consular officials sought access to him, which was refused by the United States. Canadian officials protested Khadr’s transfer to Guantanamo Bay as inappropriate for a minor, and sought assurances that the death penalty would not be imposed on him. Such steps are standard measure suggesting that Canada was attentive to Khadr’s fate and unable to control his detention in any meaningful sense. Critically, however, CSIS and DFAIT agents interrogated Khadr in Guantanamo in 2003 and 2004 for the purpose of gathering intelligence. On at least one occasion in 2004, Khadr was subjected to a ‘frequent flyer’ program by US authorities, involving the intentional deprivation of sleep for several weeks in order to ‘soften him up’. The Federal Court, echoing other court decisions to the same effect, found that such a treatment violates not only international law but also the Canadian Charter of Rights, which becomes applicable due to the fact that Canadian agents were aware of the treatment given to Khadr when they questioned him. As a result, earlier litigation by Khadr before Canadian courts led to several orders prohibiting further Canadian involvement in his interrogation as well as the disclosure of evidenced obtained by Canada in relation to such interrogations.

In this case, rather boldly, the Federal Court goes much further than these earlier court orders and finds that Canada’s decision not to seek Khadr’s repatriation in light of Charter violations is itself a breach of the principles of fundamental justice guaranteed in section 7 of the Charter. What is surprising here is that the relevant Charter violation remains the same as in earlier cases dealing with Khadr, necessarily connected to Canadian involvement in Guantanamo Bay. The Federal Court appears to find in Canada’s decision not to seek Khadr’s return an endorsement of his detention in general, including all the violations of international law at the hands of US authorities. In that light, the appropriate remedy is an order directing the Canadian Government to request Khadr’s return. This is unusual because as a rule Canada is under no obligation to intervene abroad to protect its citizens maltreated by another state. The decision whether to do so or not is a royal prerogative, a discretionary power with which courts will normally not interfere unless a Charter right has been breached. This is why it is central to the judgment to find that the decision not to seek Khadr’s return was, in itself, a breach of constitutional guarantees.

In the end, the order issued by the Federal Court may be prove a limited victory. Even if the decision stands and courts are found to have the power to order the Canadian Government to seek Khadr’s return, such a request will be received by the United States as meaningful only inasmuch as it is infused with political will. The real impact of the decision, regardless of its ultimate legal validity, may well be that it stands as one more unambiguous statement that Canada’s callous indifference to repeated violations of the fundamental rights of a Canadian child cannot be tolerated.

RDI Interview on the case.

Human rights and legal pluralism meet gender equality and geopolitics

As part of the legal remaking of Afghanistan, President Karzai signed a law on the Shia minority which stipulates that “a wife is obliged to fulfill the sexual desires of her husband.” The law is commonly interpreted to effectively licence marital rape. It also limits a woman's right to have an education unless she can get her husband's consent (Article 133: “The husband can stop the wife from any unnecessary act”), and even a woman's ability to leave the home. Simultaneously, a video has surfaced from Pakistan showing a woman being flogged publicly in the Swat valley, apparently for having declined a mariage offer to a Taliban. The threat to women in Afghanistan has created an international outrage, much Western soul-searching about the reasons for an international presence in Afghanistan (including by such prominent figures as Ban Ki-moon, Navi Pillay and Hillary Clinton), and may have some implications for NATO's involvement.

In both cases, legal pluralism seems to have advanced in great strides - the "state" essentially outsourcing norms to certain communities - and human rights, particularly women's rights, seem to have been the victim. Although the international media only become attentive to this by the time it has burgeoned into a scandal, legal pluralism in Afghanistan in particular was long in the making and is part of a legitimate attempt to allow a degree of normative autonomy. It takes hold in what is an exceptionally multi-layered and complex legal environment, rich with customary and religious laws, alongside the legacy of Soviet reforms and, increasingly, the influence of international law. It is also important to note that the new Afghan constitution, adopted in January 2004, coincides with adherence to the main international human rights conventions. In Pakistan, although the details of legal autonomy in Swat remain slightly fuzzy, religious courts will coexist with the possibility of going to the appeal courts under the federal judicial system, itself a mixture of British colonial law and Sharia regulations.

Of all the ways of reconciling universality and diversity, entrusting the law to the power of men is clearly not what legal pluralism consonant with fundamental rights was meant to be. In both cases, the laws were adopted as a result of dubious political tradeoffs. In the case of Afghanistan, it seems designed to boost Karzai's chances of being reelected, by pandering to the demands of a minority. In the case of the Swat valley, it is part of a dangerous gamble by the Pakistani military that, having failed to defeat them, the Taliban can at least be appeased by allowing imposition of the Sharia. Pluralism in this context can be a slippery slope. It creates an incompatibility with the Afghan constitution which is supposed to guarantee equality between men and women (but also, problematically, makes Sharia the supreme law), and inequality between different women or different groups. Moreover, it is already begging the question of "whose pluralism?" given competing interpretations of the Sharia. The few protests by women, including one in Kabul by members of parliament alleging that the law was an "insult to the dignity of women", were quickly dispersed. It is difficult not to tie the adoption of the law to growing insecurity for women, and indeed growing insecurity anywhere in Afghanistan. The murder of a senior Afghan female member of Parliament is part of a very worrying trend. Pakistani and international critics are talking of the official "talibanisation" of the North West territories.

Yet, there is also some support for this sort of legal pluralist decentralization in a context where the state's legal system is thoroughly discredited, as a result of corruption and incompetence. Although the status of women has rightly created indignation, there is evidence that Shariah courts in Swat for example are up to the task of litigating property disputes. Communal forms of justice in Afghanistan may be much more acceptable locally, and thus much more effective. The emphasis on consensus in addition to Koran interpretation may be more suited in some cases. Moreover, there is no doubt that legal pluralism in some cases is the a possible prescription to protect minority autonomy and rights, especially in a context where, like in Afghanistan, a minority has historically been oppressed (this was particularly the case of the Shia Hazara minority). Finally, pluralism is also a away to address the specificities of a country like Afghanistan or even Pakistan, rather than simply imposing a unitary system based on the Western experience, a point made emphatically by some local women (not to mention that the West is a bit quick to forget how its own legal tradition long tolerated marital rape and condoned various forms of oppression of women, not to speak of continuing difficulties). Shia family law supporters include women who staged a peaceful counterprotest in Kabul and, however imperfect, Afghanistan is now supposed to be a democracy.

This is why there is much need for the sort of intermediary position that the Afghan government itself highlighted (even though it seems to have fallen short of it), in which it held that it:

"must engage with the traditional system, to seek to eliminate its unacceptable elements and maximize its positive features. The aim should be to improve the quality of traditional justice, perhaps offering training to elders and others, incentives to follow the best approaches, and linkages to the state system where agreed procedures are followed"

Of course, that is more easily said than done. The debate on legal pluralism and human rights is nonetheless definitely worth more than the inevitable simplifications that will arise as a result of the recent revelations. The tension is not simply between just and unjust laws, but also between law in the books and law in practice, law that people recognize as their own and law that is only applicable in Kabul or in theory. In many ways, it is not the central governments that created legal pluralism, as much as the persistence and even dominance of certain pluralist practices that makes it necessary for central authorities to recognize them.

Different concepts of rights also seem involved (during the Kabul demonstrations both sides chanted “We want honour and dignity for women", thus vividly illustrating the divide). For some, dignity is based on the ability to come under the jurisdiction of one's community's religious laws; for others, it is based on the ability to either be free from community bounds, or to redefine those bounds.

Lord Hoffmann speech on European Court

Lord Hoffmann of the House of Lords made a speech to fellow judges in the UK this week in which he accused the European Court of Human Rights of imposing "uniform rules" on states, creating a "federal law of Europe," and behaving as a "supreme court". Lord Hoffmann went on to say:

“I do not suggest belief that the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such.”

This seems a bit bit strange given the fact that in many ways this is very much what the European Court itself has been saying throughout its existence. The Court has always insisted that national judges are better suited to deciding complex domestic issues. In fact, the Court is often accused of having bent backwards in some areas to accommodate national traditions and sensitivities through the idea of the "margin of appreciation".

Of course, the "margin of appreciation" is only that, and one can fall beyond it, otherwise supranational control of human rights adherence would be meaningless. But it bears emphasizing that the Court will require states to be very significantly in the minority in terms of practices to consider that they fall foul of their ECHR obligations. Take for example the recent Grand Chamber decision on the possibility of retaining indefinitely the DNA and fingerprint records of unconvicted suspects. The Chamber was unanimous in considering the practice in the UK to be unlawful. Crucially in this case, the UK was the only of 47 member states of the Council of Europe to condone such a practice. Moreover, the Court did point out the better Scottish practice of keeping the records of only some of those cleared (e.g.: of sexual offences), for a limited duration, and with a judge's supervision.

In his speech Lord Hoffmann made a link between this claimed ECHR assumption of supranational powers and the fact that it is threatening to drown under the number of petitions. That there is a severe backlog of cases in Strasbourg is obvious and requires some innovative solutions, but it is not clear how this is in any way linked to the level of scrutiny of domestic decisions. It is, rather, a symptom of the Court's success and the fact that many European citizens do see it as legitimate and as anchored in their reality.

Ordinary/war time torture

The New Yorker ran an article last week on the practice of long-term solitary confinement as "torture". I strongly recommend it, it makes for an eye-opening read. Solitary confinement, whether of hostages, POWs or, increasingly, prison detainees, provokes grave mental illnesses up to psychosis. The US resorts to the practice more than any other state (25, 000 are currently detained), a sort of prison within the prison, the ultimate way of putting people away, even from prison guards, short of killing them.

The article brought to mind two thoughts. The first is that it is noteworthy (for a human rights lawyer at least) for failing to mention any international resources (apart from a comparison with the UK), even though there are by now quite a wealth of them available and the problem is clearly one that is of international concern (www.solitaryconfinement.org has many of the relevant instruments, decisions, and analyses and the case law of the Inter-American Court of Human Rights is also instructive). It is precisely for situations such as these, where domestic courts and legislatures have totally accepted the practice through inertia, repetition and political pressures, that some possibility of a supranational appeal could be useful. There is in fact a wealth of international resources on this issue and it is just a tad parochial that none of them are referenced.

The second is the deep link that exists between solitary confinement for ordinary detainees in the US and the same practice in Guantanamo. In an article Fred Pinto and I wrote a few years ago, we challenged the exceptionality and abnormality of Guantanamo, suggesting that it was only the more visible embodiment of a type of practice that was rampant elsewhere As Atul Gawande puts it in the New Yorker article:

"With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago. Our willingness to discard these standards for American prisoners made it easy to discard the Geneva Conventions prohibiting similar treatment of foreign prisoners of war, to the detriment of America’s moral stature in the world. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement—on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door".

In this context, I am reminded of Catherine McKinnon's early 90s words about "war time rape" in Bosnia, and its relationship to "ordinary rape" outside of war. As MacKinnon famously put it "This war is to everyday rape what the Holocaust was to everyday anti-Semitism". Some begged to disagree by suggesting that "genocidal rape" obscured the ordinariness of the rapes involved. I suggest that a similar tension is evident between "ordinary torture" and "war time torture". Yes, war does provide an avenue for the infliction of violence which it may further legalize. But, in truth, torture is a much more prevalent, ordinary state technology, one that is deployed routinely against "undesirables". It is in the supermax prisons of Illinois and Texas that some of the practices of Guantanamo were carefully honed, and will continue to exist long after the international furore over suspected terrorists's conditions of detention has abated.

Why not a Secret Arrest Warrant against Sudan’s al-Bashir?

This is the translation of an article that I wrote last week for the legal section of the Austrian newspaper Die Presse (http://diepresse.com/home/recht/rechtallgemein/461258/index.do?_vl_backlink=/home/recht/rechtallgemein/index.do).

Why not a Secret Arrest Warrant against Sudan’s al-Bashir?

The International Criminal Court (ICC) has requested the transfer of the Sudanese President Omar al-Bashir for war crimes and crimes against humanity committed as murder, torture and rape. By issuing an arrest warrant, the ICC Pre-Trial Chamber agreed with the Prosecutor that al-Bashir, as de-jure and de-facto commander of the Sudanese army, should be held accountable for the Darfur campaign launched in 2003.

The Pre-Trial Chamber probably spent much of the nine months that have passed since the application for the arrest warrant on the issue of genocide. Two of the three judges did not endorse the view of the Prosecutor that there were reasonable grounds to believe that al-Bashir has masterminded and implemented a genocidal policy in Darfur. The Prosecutor Luis Moreno-Ocampo certainly went far by including the crime of genocide into his application, since the situation in Darfur is not clear-cut and the specific intent to destroy an ethnic group as a whole or in part is difficult to prove. Nevertheless, the line of reasoning of the Pre-Trial Chamber presented in the nearly 100-page, verdict-like decision is surprising. According to the judges, the evidence presented by the Prosecutor does not exclusively lead to the “only reasonable conclusion” that the Sudanese government has pursued a genocidal policy in Darfur.

Although one can, of course, still doubt the guilt of an indicted person in the pre-trial phase, the Pre-Trial Chamber used a similar threshold to the one necessary for a conviction. The Prosecutor can appeal the decision or apply for the extension of the charges with new evidence, even if al-Bashir faces life imprisonment in any case. [Note: The Prosecutor appealed the decision on 13 March 2009. http://www.icc-cpi.int/NR/exeres/CC751CCC-B58D-49A8-8073-83E0D06D3717.htm]

The issue whether genocide or “only” war crimes and crimes against humanity have caused the death of hundreds of thousands and the displacement of millions of people should, however, not make a difference for the international community. The latter should have reacted more strongly in any case. In the long run, it might even be helpful for the reconciliation of the warring parties in Darfur if the ethnic component is not emphasized through the charge of “genocide”, since the conflict was exacerbated precisely because of the political exploitation of the construct of “Africans” and “Arabs” by the government of Sudan.

The warrant of arrest, the first one issued by the ICC against a sitting head of state, has already had detrimental effects on the population in Darfur. Right after the decision of the ICC judges, Khartoum expelled international humanitarian organizations, on which millions of Darfuris depend for their survival.

Considering such foreseeable reactions, the arrest warrant arguably exposes the population of Darfur to additional risks rather than helping it to bring about justice sooner or later. A secret warrant could have prevented that the Sudanese government, as an act of defiance, hamper the humanitarian work in Darfur. A secret warrant could also have been more efficient. The former Vice-President of the Democratic Republic of Congo, for instance, was arrested in Belgium following the issuance of a secret warrant and now awaits his trial in The Hague.

However, in the case of al-Bashir, the more aggressive option of publicly stigmatizing him as a war criminal was apparently considered more promising. As a matter of fact, it can be argued that the warrant might contribute to challenging the legitimacy of the current regime in Sudan itself. The upcoming elections, scheduled for the end of this year, could therefore become a decisive test for the ruling party.

Obligation to cooperate
Despite the fact that Khartoum has not ratified the Rome Statute, the government of Sudan is obliged to cooperate with the Court because of resolution 1593, with which the UN Security Council referred the situation in Darfur in 2005 to the ICC. Khartoum can, therefore, not claim that its head of state is immune under international law. However, the Security Council did not oblige other states to cooperate with the ICC, which means that the procedural immunity of al-Bashir under customary international law has not been lifted.

Do states respect immunity?
Although the immunity of a head of state does not impede the Court from exercising jurisdiction according to its own statute, the ICC cannot issue a request for transfer to a third state, if this means that the state violates its obligations under international law. But even if arresting and transferring al-Bashir would amount to a breach of international law, several states, in particular ICC states parties, are ready to take this risk given the gravity of the charges. And even though al-Bashir said that the judges could “eat” their arrest warrant, he will now definitely be more cautious when travelling abroad.

The next ICC warrants in Sudan could be issued against rebel leaders who, according to the Prosecutor, are responsible for one of the most serious attacks on international peacekeepers in Darfur. These warrants would make it easier to dismiss the criticism that the ICC is only a Western instrument to destabilize the Sudanese government, and all parties to the conflict would then have something to lose and something to win from cooperating with the ICC.

Polygamy in Bountiful

Two weeks ago, criminal charges were brought against two men living in the community of Bountiful, British Columbia, on the grounds of polygamy. The Attorney General of the province and other government officials justified this move arguing that it was needed to ensure protection for the women and children of this community. Public concerns revolve around the belief that Bountiful, as an openly polygamous community, is a place where child abuse, forced marriages, child brides, and sexual assault are common.

Ever since I began researching the topic of polygamy, I have been bothered by the idea that this practice is justifiably criminalized because it is associated with the ills I have just listed. However, within our Criminal Code, we have clear and specific provisions to target these offences, which are clearly harmful, and which any reasonable person considers intolerable and deserving of criminal sanction. So why, then, does s. 293 of our Criminal Code (banning polygamy) remain, a provision which, by the way, is almost never invoked and, when it has been used, have led to few convictions that carried relatively minimal sentences?

Nearly 18 months ago, one of the special prosecutors named by B.C.’s Attorney General to investigate the “polygamy problem” in Bountiful released a report acknowledging that a prosecution on the bases of sexual exploitation or sexual assault against any of Bountiful’s residents would fail. In particular, he found no “substantial likelihood” of a conviction because of insufficient evidence of such offences. At the same time, he concluded: “I have come to the conclusion that polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all the other alleged harms flow, and the public interest would best be served by addressing it directly.”

Polygamy will be directly addressed when the two men arrested in Bountiful on January 7 are tried for this offence. There will most certainly be a challenge raised by the accused, maintaining that the charges unduly interfere with their freedom of religion, equality rights, liberty, personal security, and possibly also, their freedom of association, all of which are protected under the Canadian Charter of Rights and Freedoms. It would be shocking if the defence did not succeed in establishing that s. 293 compromises at least some of these guarantees. The onus will then shift to the government to establish that such interference with the accused’s rights and freedoms is justified pursuant to s.1 of the Charter. The arguments raised with respect to s.1 will, in my opinion, reflect the nub of the controversy over plural marriage.

The first question the Crown will need to address is whether a pressing and substantial objective exists to justify the ban on polygamy. This will present a major hurdle for the government. Can it point to the popular assumptions drawn about sexual exploitation and abuse in polygamous communities like Bountiful? This will be unlikely, since several independent investigations have revealed no evidence of systemic abuse or coercion. Moreover, my own field research in Bountiful last summer indicated that women today in this community exercise a relatively significant level of choice and autonomy when it comes to deciding who and when they will marry, and also, whether their marriage will remain monogamous. These women are also committed to the value of ensuring that young people reach at least the age of majority before they wed. And last, we have independent provisions for addressing sexual exploitation and assault, so this will beg the question of why we need the polygamy offence.

Another tack that the government might pursue is to marshal arguments about the moral sanctity of monogamous marriage, and the need to use criminal law to ensure its primacy in the place of Canadian law and Canadian society. But that, too, will be an uphill battle. For one thing, it is pretty difficult to argue that Canadians view marriage as something sacred, given current divorce rates of about 38 percent, and given the elevated numbers of couples who opt to remain cohabiting (unmarried) partners (35 percent of couples in Quebec, 13 percent in the rest of Canada). Moreover, the act of adultery has never had criminal consequences in Canada, and has barely any consequences any longer in determining divorce outcomes. Canadian courts have also indicated that practices associated with open sexual relationships and “swinging” are beyond criminal law’s reach, provided that those involved are consenting adults.

How then, to justify the banning of polygamy when the practice defined in the Criminal Code under s. 293 is broad enough to include not only formal marriages between more than two people, but “any kind of conjugal union” with more than one person, “whether or not it is recognized by law as a binding form of marriage.” Could the person separated but not divorced, who begins to cohabit with a new partner be caught? Could the divorced individual still in a religious marriage who then remarries civilly be arrested? And what about the “cheating spouse” whose relationship with the “other woman/man” starts to look a little too conjugal?

The question of course is whether the state is prepared to enforce the polygamy provision against all those caught within the sweeping definition of the offence. As others have argued (e.g., Susan Drummond at Osgoode Hall Law School), the real risk in all of this is that it is those who “stand out”, the “others” the “them” and “not us” – that is, religious and cultural minorities – who are at real risk of being snared by this provision. There is no doubt that a careful look at who was just arrested for polygamy (and, of course, who was not) supports this hypothesis.

Request for Interpretation of the Avena Judgment: was it really necessary?

A couple of hours ago the International Court of Justice handed down its judgment on the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America). The 20-pages judgment which –I'm sure– will not surprise anybody, states that the ICJ cannot deliver an interpretation simply because the matters in which it seems to be a disagreement were not covered by the 2004 Avena judgment.

I do not think that anybody would disagree with the proven fact that the execution of Jose Ernesto Medellín is a clear violation of the original Avena judgment, the 2008 Order on Provisional Measures given by the Court a couple of weeks before the execution, and article 94 of the UN Charter (which establishes the binding character of ICJ judgments). What I guess would be the point of disagreement is whether Mexico's actions constitute frivolous litigation.

In a Court that clearly does not have supervision powers and which enforcement depends on the Security Council, Mexico's Request for Interpretation seem to be the only way to publicly denounce in a relevant forum the many legal problems which flow from the Medellín vs. Texas decision of the US Supreme Court (I must say, the last issue of the AJIL makes a very interesting analysis of its repercussions in the Agora section). However, it still was a request that lacked any factual or legal base beyond the execution of Mr. Medellín. At paragraph 60 of the decision lies the only relevant point that could be made: "The Court finds it sufficient to reiterate that its Avena Judgment remains binding and that the United States continues to be under an obligation fully to implement it."

Pluralism Within Limits?

How to reconcile liberty, equality and community in multicultural communities? Proponents of legal pluralism often assert the benefits of legal pluralism for social cohesion or immigrant integration, and for the promotion and protection of social freedoms that individuals have reason to value, while claiming that legal monism (is this the alternative?) undermines social cohesion in multicultural societies by alienating individuals, especially those from minority groups who face homogenizing forces from the dominant mainstream culture. Proponents of legal monism typically maintain the importance of common laws for social cohesion, as well as for equal concern and respect for persons, especially of women and others who may face internal group oppression.
It is hard to know what the actual effects of legal pluralism or legal monism are for goals such as social cohesion or gender equality. Could it be the case that no uniform assessment can be made of either approach - that the consequent benefits and dangers of each approach will depend on context and therefore the question of whether societies should adopt legal pluralism or monism is a matter of political judgement? Has there been much empirical work done on issues such as the operation of sharia law in liberal/social democracies, and the impact on women's rights or gender equality, on the (better or worse) integration of related communities, and on the effects of increased legal pluralism on dominant legal frameworks?
Meanwhile, the debates continue to stir controversy:
http://www.swissinfo.org/eng/front/There_s_no_place_for_Sharia_in_Switzerland.html?siteSect=106&sid=10191498&cKey=1231927977000&ty=st

Can you practice what you preach? The administration of justice at the UN and due process

The UN’s justice system is a complicated and incoherent set of bodies which deal with disciplinary and labor related disputes between the organization and its employees (with a very restrictive definition of “employee”, I must say). It is no secret that the current system fails to comply with most of the judicial guarantees established on the International Covenant on Civil and Political Rights. The report of a Redesign Panel set up in 2006 stated that:

“the administration of justice in the United Nations lags so far behind international human rights standards is a matter of urgent concern requiring immediate, adequate and effective remedial action” (A/61/205, para. 11)

“In summary, the structure of the formal justice system is both fragmented and overcentralized. It is slow, expensive and inefficient. It does not provide proper or adequate remedies and fails to guarantee individual rights. It promotes neither managerial efficiency nor accountability. It generally lacks transparency and fails to satisfy minimum requirements of the rule of law. It enjoys neither the confidence nor the respect of staff, management or Member States.” (A/61/205, para. 73)

Most of the recommendations of the Redesign Panel are in the process of been addressed. By resolution 62/228 of the General Assembly the Ombudsmen offices are being unified under the UN Ombudsman Office, a Mediation Division is in the process of being set up, and both regional and sub regional offices of the aforementioned entities will eventually be opened.

However, the final formal steps were completed last month with the adoption of GA resolution 63/253, which abolishes the Joint Appeals Boards (JAB) and Joint Disciplinary Committees (JDC) starting July 2009 and the United Nations Administrative Tribunal (UNAT) on 31 December 2009. It adopts the statutes of the newly constituted United Nations Dispute and Appeals Tribunals, which should start working on July too, and adopts transitional measures to be taken throughout this year.

I have not been able to find online the Resolution 63/253, so I do not know the details of the new formal system of administration of justice. However, the adoption of a two-tier formal system is a considerable improvement from the peer-review model of the JAB and JDC, and the one-tier model with no right of appeal of the UNAT. One of the promises of the new system is to reduce the length of the procedure, which under the current system is at least 3 years.

It only took 63 years for the UN to actually adopt a system for the administration of justice that reflects the human rights principles that it has been promoting since the adoption of the Universal Declaration. The question now is how much time it will take to make the system fully operational.

The Plurality of Interrogation Techniques

In recent years, interrogation techniques employed by certain United States government interrogators at Guantanamo Bay and in Iraq have come under significant scrutiny. The bipartisan United States Senate Armed Services Committee has released a report criticizing many of the harsh interrogation techniques employed and endorsed by the Bush administration. According to the report:

The abuse of detainees in U.S. custody cannot simply be attributed to the actions of "a few bad apples" acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.

In effect, such aggressive and questionable interrogation techniques have essentially been the rule rather than the exception. Yet, an Air Force interrogator who headed an interrogation team, who currently publishes under the pseudonym Matthew Alexander, has written about a different set of normative interrogation standards that he and his interrogation team employed that were not only more effective but were more in compliance with human rights norms.

Alexander and his team applied a "softer" and perhaps more sophisticated approach to retrieving information from those they interrogated - approaching it more as an interview rather than an exercise in showing the detainee who was in charge. Alexander posits: "Good interrogation is not an exercise in domination or control. It's an opportunity for negotiation and compromise."

Seen through the prism of legal pluralism, Alexander attests to the pressure to follow a normative structure where aggressive and harsh interrogation techniques were considered the proper course of action. Alexander explains that their approach was derided by others who advocated a more aggressive methodology: "They mocked those of us who didn't imitate their methods of interrogation, which were based on fear and control. There was tremendous peer pressure to follow in their footsteps and not appear soft on our enemies."

However, far from giving into such pressure (a mechanism employed to enforce compliance with a dominant normative structure), Alexander and his team resisted the intense pressure to follow these questionable norms and implemented their own set of techniques that were not only humane, but were able to secure valuable information that helped to weaken a suicide-bombing network, amongst other accomplishments.

Ultimately, Alexander's approach speaks to how individuals can help to reshape or at least present a different normative model of behavior and the merits of pursuing his method of interrogation. As Rod MacDonald and Martha-Marie Kleinhans once asserted, “[s]ubjects seek to explore the variety of possible worlds and selves that they can reflect and project. In their relations with other subjects and in their biographies of themselves, subjects evaluate how they want to live in the worlds open to them" (See Martha-Marie Kleinhans & Roderick A. MacDonald, “What is a Critical Legal Pluralism?” (1997) 12 C.J.L.S. 25 at 29). In this case, Alexander evaluated a way to live/work in the stress-filled world of the interrogator - who is expected to procure information - in a manner consistent with his own normative framework.

Back to the basics - back in time: The Inter-American Court and forced disappearances

It has been twenty years after the first decision on the merits of a contentious case by the Inter-American Court of Human Rights. Velazques Rodrigues v. Honduras was a historic decision that found, among other things, that forced disappearances constitute a radical rupture of many rights contained in the American Convention, which persists until the person is found or justice is made. In 2008 human rights problems seem to be the same in Latin America, as the Court handed down three new decisions on forced disappearances: Heliodoro Portugal v. Panama, Tiu Tojín v. Guatemala and Ticona Estrada et al. v. Bolivia.

Some things do change though; Velazques Rodriguez and its accompanying cases (Godínes Cruz and Fairén Garbi and Solís Corrales complete the so called Hondurean trilogy) were the result of international pressure on the first democratically elected government that Honduras had in over 30 years. The disappearance of Angel Velezques Rodrigues occurred in 1981, when the democratization process was starting and the Armed Forces of Honduras were still carrying anti-subversive operations with –at least– the tolerance of the government. The case was decided in 1989, when the abuses of the Armed Forces were still a recent memory. On the other side, the disappearances in the cases of Heliodoro Portugal and Ticona Estrada started before the Court had jurisdiction over the respective countries (1970 and 1980), even before the disappearance of Angel Velezques Rodrigues. However, the doctrine of the continuous violation has allowed the Court to hear the cases. The disappearance in the case of Tiu Tojín occurred in 1990, although more recent, it is still 18 years ago. The current governments of Panama, Guatemala and Bolivia have either little or no ties with the repressive military forces that governed those countries in the second half of the 20^th century. What they seem to share is a judicial system unwilling to go back 20, 30 or even 40 years and investigate the crimes occurred under their respective dictatorships.

As auto-amnesty laws have been stricken down in Argentina, NGOs and the Inter-American Court are pressuring Chile to do the same, and former president Alberto Fujimore is currently on trial for crimes against humanity in Peru; there seems to be a tendency in the Spanish speaking world to revive violations that were nearly forgotten. Cases of forced disappearances and crimes against humanity are the flagship of this struggle against past impunity simply because those are the kind of violations that let you go back to times where the Inter-American System was still in paper or the judicial system was controlled by (or scared of) the dictatorial regimes. Weather trough national or international courts, this tendency seems to be changing some attitudes. Both Bolivia and Guatemala recognized their responsibility for the violations in the Ticona Estrada and Tiu Tojín case. Sadly there is also evidence of resistance as Panama foolishly fought every single count in the Heliodoro Portugal case and Judge Baltazar Garzón recently dropped the investigation on the crimes committed during the Franco era.

Homosexuality, human rights and religion

On 19th December, a declaration was adopted by the United Nations General Assembly which takes a strong support in favor of decriminalizing homosexuality. It is only a declaration however, and was voted by only 66 countries. Of the 66 countries, the majority were European or South American. Another declaration was adopted by 60 states which condemned homosexuality and linked it to pedophilia (a previous draft had added incest and bestiality). The supporters of that statement came largely from the Middle East, Africa and Asia. The US supported neither.
Two weeks earlier, the gay community had demonstrated in the Vatican to express concern about its opposition to the draft resolution. The Holy See has since issued a convoluted resolution which, whilst condemning violence and discrimination, criticizes notions of "sexual orientation" or "gender" as having no recognition under international law. Pope Benedict described homosexuality as against nature and compared saving humanity from homosexual behavior as as important as saving the rainforest. At the UN, he Organization of the Islamic Conference led the camp against homosexuality. Undoubtedly, religion still plays a strong role in the stigmatization of homosexuality, and poses strong resistance to human rights efforts at protecting the freedoms of gays and lesbians. In many international human rights conferences, Christian, Muslim, and Jewish groups have forged unlikely but effective alliances.
Against a background of systematic discrimination, homosexuality raises an ultimate issue of individual freedom in the private sphere. The continuing imposition of the death penalty for homosexual practices is perhaps one of the greatest human rights scandals of our time, combining as it does both the scandal of capital punishment and the criminalization of non-dangerous activity between consenting adults. Those in favor of the Declaration clearly made the case that it ran against the Universal Declaration of Human Rights and Navanethem Pillay analogized some of the laws banning relations between same sex consenting adults with laws banning relations between races under Apartheid.
It is at the intersection of religion and sexuality that the threads of plural normativities are perhaps the hardest to disentangle. Perhaps no issue has steered more resistance from religious denominations than that of homosexuality, which is at odds with religions’ attempts to discipline body and soul. This is particularly the case in states where religion has the upper hand on matters of mores, either because religious edicts serve as a reference for the state’s law, or because some part of the law defining legitimate individual practices has been outsourced to religious bodies.
In such cases, legal pluralism can translate not in the enrichment of human rights, but in the suppression of social diversity and tolerance.

UN's Audiovisual Library of International Law

About a month ago the Office of Legal Affairs of the United Nations launched a project they have been working on for over 10 years: the Audiovisual Library of International Law. Although initially I was not too excited about having available online huge quantities of audio, video and photographic files relating to the travaux préparatoires of many international conventions, the increasing attention on the 60th Anniversary of the Universal Declaration on Human Rights made me wonder about the materials held in the AVL. I was happy to find some videos from the sessions in Lake Success and Paris, which are far less boring than going through tons of crumbling paper in the basement of a library.

The AVL already includes a good number original materials of treaties and other instruments which go from the Genocide Convention to the 1974 GA Resolution on Agression, and promises to include in the near future more recent instruments such as the 2006 Convention on the Rights of Persons with Disabilities. The AVL also has a very comprehensive research library (something like EISIL, but bigger) which links to journals, yearbooks and databases on treaies and international jurisprudence.

Maybe it will not make for a innovative research tool, but some of the materials there can surely be use in the classroom to make things more interactive and interesting.

Olympics report

One interesting facet of human rights and legal pluralism is the extent to which sources of normativity about human rights are not necessarily the ones one would think. In other words, a human rights "source" is not necessarily one that includes human rights in its denomination, or indeed one that talks much about human rights, but could be one that can be faulted for not reporting on human rights issues, even when it should have. Consider for example the recent report by the International Olympic Committee which, essentially, totally omits any reference to human rights, despite knowing that it would be scrutinized on that point. As Minky Worden, the media director for Human Rights Watch, put it: “I think the I.O.C.’s fact sheet is missing a lot of salient facts. What is missing in this document is the extent to which the International Olympic Committee lowered its standards on human rights around the Beijing Olympic Games.” What is missing are the forced evictions, the reeducation camp sentences, the banned demonstrations, and the strictly controlled internet access, to speak only of those violations directly related to the Olympics.
However, it is not inconceivable that human rights could become more part of the process in the future. Human Rights Watch, for example, has suggested the creation of an internal mechanism that would audit a host city’s human rights record before the Games. It seems that only the German committee has expressed interest so far, although that could change. It is interesting to think of the process of organizing the Olympics as a source of at least semi-formalized human rights scrutiny. Critique before and during Beijing did not have a significant impact, perhaps because it was seen as largely external to the Olympic movement. Maybe a condition of success for plural human rights is to be able to speak from within power structures such as the IOC.

Legal pluralism and human rights

The International Council on Human Rights Policy lists "legal pluralism and human rights" as one of its projects. I wonder how their work might relate to that being done at McGill. There is admittedly not much on the site so far ("in design"), but it seems like the idea pursued is very much like the work that is being done at McGill. In fact, in November of this year they organized "consultations on plural legal orders". The agenda makes for a very interesting read.

Primetime torture

It's not exactly legal pluralism, but I find it very noteworthy that "Human Rights First" is now devoting an entire webpage to what the organization describes as "primetime torture". The site is very well done and documents how series like "24", "Alias" or "Lost" are part of a process of banalization of torture. Interestingly, the site also argues, on the basis of interviews with ex soldiers, that these representations have a significant impact on the military itself. I am currently working on a piece with Mario Prost on this issue, trying to link "24" specifically with current theoretical debates on the limits of international law.
"Law & popular culture" is not quite "legal pluralism" of course, in that it tells us more about the representation of law than the coexistence of legal systems. But at the same time, representation is its own source of normativity, and in a very real sense, law producing if it ends up shaping how actors believe they are entitled to act in certain circumstances.