...and counting...

(Occasional sobering thoughts.) The United States, France, and other countries intervened militarily against Libya's government yesterday -- the 8th anniversary of the U.S.-led invasion of Iraq.
Participation by France (under President Nicolas Sarkozy) departed from the earlier script, when France (under President Jacques Chirac) vocally opposed intervention and so thwarted the United States' bid for U.N. Security Council authorization.
This time around, France pushed earlier and hard for a Security Council resolution. Some officials in the United States initially resisted. But as predicted nearly a month ago by our Opinio Juris colleague Chris Borgen, a tweet heard 'round the world (below center, by Anne-Marie Slaughter, who just finished a 2-year stint as the head of policy planning at the State Department) seemed to set the stage for support by Secretary of State Hillary Clinton and, eventually, President Barack Obama.


Five of the 15 Security Council states, including China, Russia, and Germany, abstained from Resolution 1973, which was billed as a no-fly resolution during early negotiations, yet included this paragraph authorizing greater intervention:

Protection of civilians
4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; ....

Hence yesterday's Tomahawk strikes on Libyan air defense systems. Hence, too, today's complaint from an advocate of the no-fly zone -- the leader of the Arab League said "the use of force was excessive following an overnight bombing campaign that Libya claims killed at least 48 people."
The Security Council-endorsed actions are taking place in the name of civilians. A noble cause, yet one without end. If Libya, why not other countries whose governments harm their own people? To name one, why not Côte d'Ivoire, site of tragic deaths amid months-long post-election violence?
As made explicit in the preamble to Resolution 1973, the Security Council resolved to act in the name of the fledgling doctrine of responsibility to protect. The Council's choice of Libya, to the exclusion of other global trouble spots, exposes once again the unsettling selection bias inherent in current conceptualizations of that doctrine.
Unsettling too is the notion of a 3d (or 4th, depending on how one counts AfPak) armed conflict in which the United States is engaged -- and in which civilian deaths are likely to occur even in the course of efforts to protect civilians.
While waiting to see what transpires on the Libyan front, it is due time to review casualties since our last post, 16 weeks ago, in the long-running conflicts in Afghanistan and Iraq.
► In Afghanistan, "[t]argeted killings of civilians in Afghanistan doubled" in 2010, according to an annual report recently issued by the United Nations. Specifically, there was "a 15 percent increase in the number of civilians killed to 2,777 -- continuing a steady rise over the past four years" in the nearly decade-old conflict.
The U.S. Department of Defense reports that in Afghanistan, coalition military casualties stand at 1,505 Americans, 360 Britons, and 507 other coalition servicemembers. That's an increase of 89, 15, and 23 casualties, respectively, in the last 16 weeks. The total coalition casualty count in the Afghanistan conflict is 2,372 service women and men.
► Respecting the Iraq War launched 8 years ago this weekend -- a milestone observed by scattered protests --Iraq Body Count reports that between 100, 051 and 109,318 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. That represents an increase of between 1,030 and 1,224 persons since 16 weeks ago. According to the U.S. Defense Department, 4,440 American servicemembers have been killed in Iraq, representing 11 servicemember deaths in the last 16 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

Nuclear moratorium

In "a change in tone over 24 hours" that Le Monde deems "spectacular," Chancellor Angela Merkel has declared a 3-month moratorium in Germany on old nuclear power plants.

Prompting the longtime proponent to halt production in certain plants is, of course, the nuclear disaster looming in Japan. There, plant explosions have led to a "much higher than normal level" of radiation in Japan since the 9.0 earthquake last Friday. (credit for map showing Japan's nuclear power plants)

In the United States, the Obama administration reportedly seeks "to reassure Americans that nuclear power is safe."

That effort contrasts with Merkel's announcement of plans for inspection of Germany's 17 reactors, some with designs much like that in Japan. (In similar vein, French President Nicolas Sarkozy expressed "disquiet" over the still-unfolding tragedy.)

Merkel described the catastrophe in Japan as a moment for reflection by "the entire world."

Let's hope that reflection entails robust application of the precautionary principle.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Leaders from Britain, the United States, France and China -- along with Russia, the permanent members of the U.N. Security Council -- have all visited India in the last six months, securing contracts worth a total of around $50 billion.

-- A Reuters report today from New Delhi, where Dmitry Medvedev, President of one of the P-5 countries listed in the snippet, declared Russia's support for giving India a permanent seat on the Security Council of the United Nations. (image credit) Medvedev's announcement follows the New Delhi statement earlier this month, when President Nicolas Sarkozy said France too now supports adding India as a "P-6" -- not to mention President Barack Obama's announcement in November, as we then posted, that "a reformed U.N. Security Council that includes India as a permanent member" is the United States' goal as well. The lining up of these ducks in a row makes for a fascinating study in politico-market emergence.

Questions constitutionnelles

Imagine if ex-Presidents were automatic members of the U.S. Supreme Court.
If, that is:
► John Adams had been on the Court that decided Marbury v. Madison, or
► George W. Bush were sitting now, while the Court continues to resolve cases involving post-9/11 policies?
Even ad hoc recusal might seem insufficient to relieve the Court of an unwelcome appearance of potential partiality.
Yet that is the situation in France.

As of right, former Presidents -- today, Valéry Giscard D'Estaing and Jacques Chirac -- serve on the Conseil constitutionnel. Serving along with them are 2 women and 7 additional men, each of whom owes nomination, to a 9-year term, to France's President or to a president of a house of parliament.
Le Monde's just raised questions about that arrangement, suggesting that it may be "obsolete." The Paris-based newspaper also is questioning the absence of any requirement that Conseil members satisfy some standard of judicial competence.
A couple developments have prompted these new questions about the 52-year-old institution:
►1 ex officio member, ex-Président Chirac, remains dogged by a range of legal problems (and see here), some of which were present even during his executive tenure.
► The Conseil is a "constitutional court" now more than ever. As IntLawGrrl Naomi Norberg then posted, it just acquired a judicial review power approaching that which its U.S. counterpart claimed in Marbury: consideration of a citizen's after-the-fact claim of constitutional violation. Since the change took effect in March, the Conseil's constitutional docket has mushroomed. Among the 1st uses of its new power, as Naomi also posted, was a September decision invalidating reforms pushed by the current Président, Nicolas Sarkozy, and enacted, of course, by the parliament.
Time will tell if Le Monde's questions gain traction.

France recognizes NGO's right to sue

Transparency International (logo at left) just won a major victory in the French courts: in a precedent-setting decision, the Cour de cassation ruled Tuesday that NGOs may bring international human rights cases in French courts. In particular, the decision was handed down

in a corruption case calling for an investigation into how luxury assets (properties and cars, as well as bank accounts) were acquired in France by three foreign heads of state - Denis SASSOU NGUESSO (Congo-Brazzaville), Omar BONGO ONDIMBA (Gabon, now deceased), Téodoro OBIANG MBASOGO (Equatorial Guinea) - and their relatives.

The decision is a major milestone in a country where rules are very strict regarding standing, and class actions do not exist:

• it recognizes the legitimacy of using the French courts to help fight corruption elsewhere and the bad government and poverty that result;
• it also recognizes the legitimacy of NGOs to represent people living under corrupt leadership, and more broadly to act as spokespersons for an emerging global citizenry striving for justice in the face of increased economic and financial globalization. Provided, that is, that the NGOs in question satisfy criteria of democracy and transparency.
  

The decision is also a very timely mise en garde to the French government. Since 2007, President Sarkozy has pressured the prosecutor's office to squelch the affair, and Omar Bongo even persuaded Sarkozy to fire one of his cabinet members for having publicly denounced these African leaders' pocketing of funds earmarked for their countries. This case, about which we've posted here, has thus highlighted the lack of separation of powers between the executive and the prosecutor's office, which would be reinforced under Sarkozy's planned reform of the judicial system. In particular, Sarkozy would like to eliminate the juge d'instruction (prior IntLawGrrls posts here, here, and here). The Cour de cassation has just ruled, in essence, that the juge d'instruction is a necessary cog in the wheels of French justice, without which cases like these will most likely not see the light of day.

Decolonization dance

Indépendance cha-cha is the lively name Le Monde has given to the history of French decolonization featured in this multimedia presentation.
With the run of the cursor you can stream through time, clicking to stop when the spirit moves. Examples:
► Listen to the rallying song Débout les Zouaves while reading about World War I (1914-1918), during which French forces included more than 200,000 persons from colonies in sub-Saharan Africa and Madagascar -- more than 25,000 of whom died in the conflict.
► The Colonial Exposition -- and the Counter-Exposition mounted by André Breton and other surrealists -- both held in Paris in 1931.
► Publication of Peau noire, masques blancs (1952) by the Martinique-born psychiatrist and anticolonial theorist Frantz Fanon (depicted not only in a photograph but also via audio of a lecture he gave).
► The securing, in rapid succession in 1960 and 1961, of independence by many former French colonies in Africa; followed by occasional French interventions ever since.
► 2007 accusations of corruption by leaders in certain African countries, about which IntLawGrrls posted.
► Video of a 2007 speech in Senegal by President Nicolas Sarkozy -- that that left "Africans ... seething."
Worth your time to give cha-cha a spin.

French "constitutional thunderbolt"

In a last bit of business before summer vacation, the French Conseil constitutionnel issued a landmark decision holding that the "ordinary" regime of garde-à-vue (pre-arraignment police custody, known as GAV) is unconstitutional. The decision is not the resounding civil rights victory we might like, but it is remarkable in at least a few respects.
It is one of the first decisions based on post-hoc review, unheard of in France until President Nicolas Sarkozy's constitutional law reform package came into effect last summer. Many thought the reform would be ineffectual with respect to citizen-initiated post-hoc constitutional review because the "right" was subject to too many filters. And I doubt Sarkozy suspected his reform would result in one of the primary tools of law and order being held unconstitutional.
But voilà! 36 people subjected to garde-à-vue claimed the regime was unconstitutional, got through the filters, and and won. (See too this paper by IntLawGrrls guest/alumna Jacqueline Hodgson.)
While the Conseil didn't agree with all of the petitioners' arguments, to the French legal community's general astonishment, it declared not just 1 or 2 code provisions unconstitutional, but the entire "ordinary" regime of garde-à-vue. In so doing, the Conseil overturned its own 1993 decision, issued prior to the offending provisions' enactment, that GAV was constitutional.
In what may be considered a slap at Sarkozy's law-and-order policies (put into effect both while he was Interior Minister--top cop--under President Jacques Chirac, as well as under his own presidency), the Conseil:
► Laments the banalization of GAV: in 2009, GAV was ordered 790,000 times, an increase of more than 140% above the 320,000 GAV orders in 1993, when François Mitterand was still president.
► Notes, as controversy swirls around the proposed elimination of the juge d'instruction (prior IntLawGrrls posts here, here, and here), that fewer than 3% of criminal cases are handled by these investigating judges, such that persons are generally tried solely on the basis of the evidence gathered while they are in custody (24-48 hours under the "ordinary" regime). In addition, while the number of polices judiciaires has doubled since 1993, the requirements for becoming one of these detectives have been reduced.
After these general considerations, the Conseil addressed the more specific issues of:
► Whether GAV is incompatible with human dignity (no);
► Whether persons subject to GAV (GAVees) have effective assistance of counsel (no); and
► Whether GAVees' right to silence is sufficiently protected (no).
While GAV is necessary and not an affront to one's dignity (but see my post on the UN Torture Committee's assessment of the French penal system), the "ordinary: regime does not strike an appropriate balance between crime prevention/punishment and the exercise of constitutional rights. In particular:
► GAV may be extended from 24 to 48 hours in all cases, not just those involving offenses meeting a particular level of gravity;
► GAVees may consult with counsel for 30 minutes at the beginning of their GAV, but may not have counsel present during questioning; and
► GAVees are not notified of their right to remain silent.
While the right to remain silent seems like a fairly logical consequence of the right not to incriminate oneself, French law did not require arrestees to be notified of this right until 2000 (in the law on the presumption of innocence), and that requirement was eliminated in 2003. In this just-issued decision, therefore, the Conseil has just effectively told the government that it must reestablish the right to such notification, without which the ineffective assistance of counsel is exacerbated. The Conseil does not say that counsel must always be present during questioning, however; it merely says that a blanket prohibition, like the ability to extend GAV, is too broad.
Unfortunately, the Conseil did not agree with petitioners that allowing the prosecutor to prolong garde-à-vue violates the European Convention on Human Rights, which requires such decisions to be made by an independent, impartial judge (cases on this issue are pending in other French courts and before the European Court of Human Rights, which has so far stopped short of saying the French rule violates the Convention).
The Conseil also refrained from finding the "special" GAV regime -- established to handle terrorism, drug trafficking, and organized crime -- unconstitutional. It declined even though that regime allows for up to 6 days of garde-à-vue, in the very conditions the Conseil deemed unconstitutional under the "ordinary" regime; that is, lack of effective representation, presumption of innocence not sufficiently protected.
Moreover, the Conseil gave the Sarkozy administration 11 months (!) to rewrite the GAV laws in accordance with this decision. As a result, no GAV measures ordered before July 1, 2011, may be challenged on the basis of this decision.

France slammed by UN Torture Committee

In November 2009, France enacted a law designed -- as claimed by President Nicolas Sarkozy's administration -- to recognize prisoners' fundamental rights (inter alia, civil, social, family, health, labor and training rights) in order to promote human dignity and social rehabilitation. In a strong indictment of this administration's policies and practices in the areas of criminal justice and immigration/asylum, the UN Committee Against Torture's latest report indicates that rather than being "exemplary" in the area of human rights, this law, and more broadly the penal policies implemented since the Committee's last review in 2005, are a miserable failure.
The first subject of concern for the Committee is the fact that, though France criminalizes torture and acts of barbarity and violence, it has not brought its legislation into "strict conformity" with the definition of torture provided by the Torture Convention (art. 1). In particular, the Committee notes that such a definition would provide the clarity and foreseeability required of criminal law and satisfy the Convention's obligation to distinguish acts of torture committed, tolerated or instigated by public officials or others acting under color of law from acts of violence committed by non-state actors. The Committee also repeats its recommendation that France make torture an imprescriptible crime (§13).
Secondly, the Committee reproaches France its "priority procedure" for asylum requests, which does not provide for suspensive appeals. Those whose requests are denied may therefore be sent back to countries where they risk torture before their appeals are heard. In 2009, 22% of asylum requests were subject to this procedure (§14).
Thirday, the Committee is concerned with France's 2003 law introducing the concepts of: (1) "internal asylum," "asylum" in an area of the home country where the individual is deemed safe from persecution, applicable, for example, to women seeking protection from gender-based persecution suffered within the tribal setting; and
(2) "safe countries," the concept that countries may be deemed safe for refugees to return if, for example, the armed conflict or political regime from which they fled has ended. The criteria used generally do not protect women from gender-based persecution. The Committee "deplores" France's returning of individuals to countries where they risk torture or other cruel, inhuman or degrading treatment (§§16-18).
With respect to police custody, interrogation and imprisonment (image credit), the Observatoire International des Prisons notes the severity of the Committee's remarks, and summarizes the recommendations -- which are final and cannot be appealed -- as follows:

• The Committee requests that France "consider abrogating" the rétention de sûreté, which allows for indefinite imprisonment of those deemed not safe to release even after they have served their time. Noting in §29 that this extra penalty flouts the principle of legality and is "of a nature to raise questions" as to the prohibition of cruel, inhuman or degrading treatment, the Committee also points to its incidence on prison overpopulation. Finding a "direct corollary" between the current overpopulation and the "numerous criminal laws recently enacted that aim to stiffen penalties and reduce recidivism, the Committee enjoins France to apply penalties other imprisonment more often.
• The Committee aligns itself with several national and European human rights authorities by criticizing France's system of differential detention, which "necessarily" renders the conditions in which sentences are carried out arbitrary: "disciplinary punishment, or denial of access to certain rights while in prison could, by their repetition, absence of justification, and/or the arbitrary way in which they are dispensed, constitute cruel, inhuman or degrading punishment or treatment."
• The Committee once again criticizes the system of full body searches of prisoners, asking that this practice be completely eliminated.
• The Committee warns that the use of Tasers (electrical discharge pistols) may constitute torture. (Prior IntLawGrrls post)
• The Committee is highly preoccupied by the number of suicides in French prisons (more than 15% of the detainees who killed themselves in 2009 were being held in disciplinary quarters as punishment) and requests that isolation be used only exceptionally and for a limited time, in accordance with international norms.
• The Committee is also preoccupied by continued allegations of mistreatment of detainees by officers/guards and requests that each such allegation benefit from a transparent and independent investigation. In this regard, the Committee expresses its concern that the Sarkozy administration's new "Défenseur des droits" (rights defender) replace other authorities designed to protect fundamental rights. It therefore requests the government to ensure the effective and uninterrupted operation of the Contrôleur général, as well as other independent authorities (national mediator, office of children's rights, and the national commission on security ethics).

Lastly, the Committee notes that it was inadequately informed of France's efforts to combat human trafficking and sexual exploitation, and recommends that it adopt a program designed to punish traffickers and to protect and rehabilitate trafficked persons.
The same criticisms and recommendations have been made by the European Court of Human Rights, which found France guilty of violating the prohibition on torture 5 times between 1992 and 2007 in the prison context, and the French National Consultative Committee on Human Rights, which has issued recommendations on, inter alia, implementing the torture convention and on combating human trafficking and sexual exploitation (English version translated by yours truly).
It is time France listened.

Stripping (Women) of Veils, and (Men) of Citizenship

Almost a year ago, I posted on the Sarkozy government's plan to introduce a law prohibiting women from wearing the burqa (right, credit) in public. In February, the government did just that, but on reviewing it, the Conseil d'Etat found there was no "indisputable legal basis" for a comprehensive ban and advised limiting the ban to public buildings. President Sarkozy will nevertheless submit a bill to the council of ministers later this month that contains a blanket ban: "no one may wear in public clothing designed to hide the face," under penalty of a 150-euro fine and/or "citizenship training." The ban would therefore include bandannas and masks worn by protesters, as well as niqabs (left, credit) such as the one worn by a French woman arrested in late April in Nantes for "driving in uncomfortable conditions" (French Vehicle Code art. 412-6). Officers claimed her niqab obstructed her vision; others say motorcycle helmets obstruct vision just as much.
The arrest came shortly after President Sarkozy announced his support for a full ban and intent to try to get around the Conseil d'Etat. Heating up the debate, the Interior Minister announced he would seek to have the woman's companion stripped of his citizenship for possible polygamy and child-welfare benefits fraud, whereupon the Minister of Immigration and National Identity announced plans to provide for a new citizenship-stripping procedure. Such pronouncements have of course been ridiculed: the companion is married to only one of the 4 women with whom he lives and has children. In a land where adultery is not a crime and extramarital relationships, including those that produce children, abound, threatening to strip people of their citizenship for such behavior is comical to say the least. But coming at the same time as Joe Lieberman's plan to strip Americans who join terrorist organizations of their citizenship, you have to wonder if there isn't some kind of nationalist trend afoot: unAmerican, unFrench, un(fill in the nationality) criminal behavior warrants not a criminal penalty, but exclusion from the nationality--a penalty deemed so counter to human dignity that the US Supreme Court held it violated the 8th amendment, as it constituted "the total destruction of the individual's status in organized society" (Trop v Dulles, 1958).
Clearly, a more dignified solution must be found, as anti-Muslim laws stigmatizing women are spreading across Europe. Just last Monday, a veiled woman was stopped in a post office in Novara, in north-western Italy and fined 500 euros for violating Novara's new by-law prohibiting clothing that prevents immediate identification in public. While Italy has banned masks or clothing that makes identification impossible since 1975, the measure is designed to prevent terrorism and the exception for "justified causes" has generally been interpreted as allowing veils. Local governments have begun to introduce stricter measures, however, and the Northern League has submitted a bill to parliament to specifically prohibit Islamic face veils.
Belgium seems poised to win the race to ban veils, however: its law prohibiting masks and veils in public passed in the lower house and is waiting to go before the Senate. Meanwhile, a German Euro-deputy has suggested enforcing such a ban across Europe.
In France, one of the major arguments made against face veils is that they are "an outrage to the dignity of women." Robert Badinter, therefore says he is "entirely in favor" of criminally prosecuting anyone who "pressures a woman into wearing a burqa." This is at least consistent with the principle of protecting women's dignity. But what to do about women who choose to wear veils? And more particularly, women like the driver in Nantes, a French adult convert to Islam whose freedom of choice cannot be said to be compromised by family practices?

Politics of the Veil bis

In his speech before the full French parliament on June 22, President Nicolas Sarkozy said

[the burqa] is not a religious problem, it is a problem of women's freedom and dignity. It is a sign of subjugation. . . . the burqa is not welcome in France.

Neither President Sarkozy nor the French government seem to have read either Beth Van Schaack's great post from last year, or the book that inspired its title, The Politics of the Veil (2007) by Joan Wallach Scott. As Beth mentioned, the French passed a law in 2004 banning the wearing of "ostentatious religious symbols" in public schools. The two arguments supporting the law were the French concept of laïcité, or separation of church & state, and the need to protect young women from being forced to wear fundamentalist religious garb. The law has the disparate effect it was designed to have on Muslim girls, who are forbidden to wear headscarves to school, and also affects Sikh boys. (In fact, many of Muslim parents also request that their daughters be excused from biology classes and mixed-sex swimming classes, for example. So while the law is limited to clothing, the underlying issue of mixing religion and public school is not.) Since most Orthodox Jewish children go to private schools, they are not affected by the 2004 law, which would? should? forbid boys wearing yamalkes, but perhaps not girls wearing tights, long sleeves and long skirts even on the hottest, muggiest days. They and other wearers of ostentious religious garb will also be unaffected by a new law President Sarkozy's government may table to ban the burqa (at least if it is imposed).
As I posted last August, France has denied citizenship to at least one woman on the grounds that she wears a niqab (face veil), which the Conseil d'État (supreme administrative court) considers incompatible with the essential values of the French community, notably with the principle of equality of the sexes. If the government actually does pass a law banning both the burqa (full body garment combined with hijab (head covering) and niqab (face veil)) and the niqab, it too will be upheld on the grounds that here in France, we prize dignity and transparency. It is argued that torturers and executioners cover their faces, that we can't have unidentifiable people picking up children from school, that we can't accept this obvious sign of female enslavement. Will forcing the few women who wear them (5% of France's Muslim population) to stay inside forever or move to a Muslim country save them from enslavement or give them dignity?

Refuse/Refuge

This dispatch from Le Monde will sober anyone hoping that the news of France's willingness to take in a Guantánamo detainee opened the way for global resettlement of inmates who cannot go home again:

According to the Paris paper's special correspondent in Luxembourg, French President Nicolas Sarkozy "did announce that 'France was ready to accept an ex-detainee from Guantánamo,'" but with the intention of "'putting him in prison.'" That kind of "acceptance" would mirror the fate of the 6 ex-detainees who stood trial in France after their release from Guantánamo in 2004 and 2005.

Still more sobering is the reporter's observation that only 4 other countries besides France -- Britain, Italy, Portugal, and Spain -- have shown any such inclination. "For the most part," he wrote, "the ministers of interior and justice from the 27 European Union countries meeting in Luxembourg showed reticence to accept ex-detainees."

No doubt complicating diplomatic efforts at resettlement is the United States' unwillingness so far to take in any detainees itself. Last October, as we posted, the U.S. District Court ordered the release into the United States of 17 Uighur detainees, Chinese Muslims whom the government admits are not enemy combatants but who are likely to be persecuted if returned to China. But the Court of Appeals for the District of Columbia Circuit overturned that decision in February, and so yesterday the matter found its way to the U.S. Supreme Court. The petition for certiorari in Kiyemba v. Obama raises the critical issue, as SCOTUSblog reporter Lyle Denniston's superb analysis points out, of whether it is "unconstitutional to continue to hold in some form of custody an individual who has been found not to be dangerous and who has not been charged with any crime." The answer to that question would affect not only the Uighurs, but potentially many more of the 241 persons remaining at Gitmo. (Indeed, if last week's opinion extending Boumediene to 3 Bagram detainees survives appellate review, its scope could be even greater.)

One hopes that the new administration will not wait for the Court to act, but rather will decide on its own to accept the Uighurs, as Attorney General Eric Holder hinted the United States might do. As a policy matter, this could make other detainees more welcome in more other countries, as IntLawGrrl Beth Van Schaack posted. As a legal matter, it would comport with our traditions, as I've written in a New York Times Room for Debate exchange:

These men cannot expect safety back home in China. No other country has welcomed them. It is time for the United States to do just that – to grant the Uighurs asylum within U.S. borders. We should learn that this result is a foreseeable consequence of denying such persons their rights under the law.

Pope not gay over French proposal

Europe's witness these days to a fascinating diplomatic dance:
Pope Benedict XVI has rejected 2 consecutive nominees to be France's Ambassador to the Holy See. It's a most delicate matter -- the Paris daily Le Figaro will say only that the 2d nominee, long-time French diplomat Jean-Loup Kuhn-Delforge, was rebuffed "by reason of his 'personal profile.'"
What gives?
France's having trouble finding a suitable candidate who is neither divorced nor gay.
The former adjective describes the 1st nominee, a writer who is married to his 3d wife. The latter describes Kuhn-Delforge, who lives openly with his male partner.
In the late '80s a divorcé represented Spain at the Vatican, but apparently neither Pope John Paul II nor Spain itself knew the ambassador's status. In any event one suspects this Pope wouldn't listen to claims of precedent.
Listened to or not, France does seem to be signaling its view of 21st Century values -- a most interesting message from a country where the President just married for the 3d time; civil unions of same- as well as opposite-sex couples have been recognized for years; and more than 80 percent of the population "identify themselves as Catholic."

France giveth to the ICC, but ...

... taketh France away as well?
Better late than never comes news that this summer France now fully accepts the jurisdiction of the International Criminal Court, even as to allegations that war crimes were committed by its nationals or on its territory. It joined the ICC in 2000 during the Presidency of Jacques Chirac (below, at far left). At that time France -- alone among all states parties so far -- invoked Article 124 of the Rome Statute of the ICC in order to put a 7-year hold on war crimes jurisdiction. The switch of positions is largely cosmetic given that France's "hold-on-a-minute" declaration would have expired on its own in mid-2009. (Other "interpretive declarations" by France, detailed here, apparently remain intact.) Still, withdrawal of the declaration operates as an endorsement of the ICC, and that has to be a good thing.
Less clear: whether France's behavior in the interim several months will prove an equally good thing.
In mid-September IntLawGrrls posted on machinations at the U.N. Security Council in reaction to the request for a head-of-state warrant in connection with the war his government is waging in the western Sudan region of Darfur. Debate concerns whether to defer the case for a year by invocation of Article 16 (inapt, at least 1 Rome Statute negotiator argues). Though there's been much focus on resistance by 1 member of the Council's Permanent Five -- China -- others in the P-5 also may favor deferral.
A trial balloon floated into public view on September 19, when Agence France-Presse reported the indication by an unnamed aide to France's current President, Nicolas Sarkozy, that

France is not hostile to a suspension of the ICC proceedings targeting Sudanese President Omar al-Bashir, accused by the prosecutor of genocide in Darfur, on the condition that Khartoum make a 'gesture.'

Asked what "gesture" might suffice, the aide demurred, noting only that the ICC prosecutor already had targeted 2 other Sudanese -- neither of whom Khartoum has turned over to The Hague. (credit for above AP photo of Bashir with Chirac, at 2007 summit in Cannes)
Last week reports surfaced that Sarkozy himself confirmed the position while in New York for the opening of the U.N. General Assembly. According to Reuters,

Sarkozy announced that if Sudan changes its behavior and actively supports growing international calls for peace in Darfur, Paris would back suspending any indictments the International Criminal Court (ICC) issues against Sudanese President Omar Hassan al-Bashir.
Sarkozy made clear there would be strings attached. In a speech to the U.N. General Assembly, the French leader said Sudan would have to 'radically' alter its policy towards Darfur, where international experts say at least 200,000 people have died since 2003. It would have to remove a cabinet minister indicted for war crimes in Darfur from the Khartoum government and stop delaying the deployment of international peacekeepers.

Curiously, the official French government account of the speech says only that Sarkozy mentioned Darfur only once -- that he opened his U.N. address by declaring:

'On ne peut pas attendre pour faire la paix et mettre fin à la tragédie du Darfour.'

that is,

'We cannot wait to make peace and put an end to tragedy in Darfur.'

But other accounts (here and here) affirm that Sarkozy called for "radically" changing Sudanese policies at a press conference during the same GA session; indeed, with these words he made such change a Sudanese sine qua non:

'Things must be clear, there will be no recourse to Article 16 unless there is radical and immediate change in Sudan’s policies.'

Perhaps in keeping with that claim, France last week helped broker a 6-month extension of the mandate of the U.N. Human Rights Council's Special Rapporteur on Sudan -- an extension secured notwithstanding that Sudan's diplomat "violently attacked" the "extremely critical" report delivered by that rapporteur, Sima Samar (right), who's served in Cabinet posts in Afghanistan and heads the Afghanistan Independent Human Rights Commission.
Now we must wait, to see how France and others in the P-5 next move through the Sudan/Darfur/ICC mess.

Dark days ahead in France

The French justice system is scraping bottom, according to former Justice Minister Robert Badinter (left).
On Thursday, the Conseil constitutionnel, France's constitutional court, approved the bill I discussed last month calling for life internment of perpetrators sentenced to at least 15 years in prison for crimes aggravés -- crimes committed with aggravating circumstances -- committed against minors. Stating that the measure constitutes “ni peine ni sanction”, i.e., neither a criminal penalty nor an administrative sanction, the “wise men”, as the constitutional judges are called, affirmed that a person who has served his or her term for a crime but is determined to still be dangerous may be interned for the rest of his or her life, as long as regular passages before psychiatrists confirm dangerousness. The doctors’ union, among others, opposed the law because, among other things, it confuses mental illness with criminal delinquency, standard practice in totalitarian societies: the state, rather than civil society, deals with social deviance (mental illness, political dissidence, or any other behavior or belief that can be labeled dangerous) as well as criminal delinquency. As first proposed, the law was to apply retroactively, another standard of totalitarian regimes that is contrary to general principles of criminal law and international human rights law. The Conseil d’Etat, the highest administrative court in France, nixed the retroactivity clause: internment could only apply if, at the time of sentencing, the judge tacked it on to the sentence. The lower house of parliament therefore approved the bill without the retroactivity clause. Under pressure from President Nicolas Sarkozy (left), his party’s majority in the Senate muscled through a version of the law with the retroactivity clause put back in. The Conseil constitutionnel took it out, thus limiting application until at least 2023, and added a further limitation: during their incarceration, persons subject to the provision must have been provided the psychological and other help necessary to their rehabilitation. The provision thus would, in theory, apply only to those who, despite such services, are determined to still be too dangerous to release. In a stunning challenge to the separation of powers dictated by the French Constitution, Sarkozy has asked the chief justice of the Cour de cassation how to get around the Conseil constitutionnel, saying "we can’t let the 'monsters' go free". One of the magistrates’ unions expressed “stupefaction”, and both unions are calling for resistance on the chief justice’s part as well as for demonstrations: art. 62 of the Constitution provides that the Conseil’s decisions are beyond all recourse, and are to be followed by all courts as well as the executive and the legislature. Standing by her man, so to speak, is the current Justice Minister, Rachida Dati (right), who says the law represents “significant progress” and that Sarkozy is justified in his challenge.
President and Justice Minister together against the Constitution. Remind you of anyone?

Modernité à la Sarkozy

To ensure that the French Constitution is in sync with the times and well equipped to resolve the “philosophical, moral and ethical problems posed by modernity”, President Nicolas Sarkozy (right) proposes to amend it.
In addition to constitutionalizing the ban on reproductive cloning and on selling the human body or its parts for scientific purposes, Sarkozy would like to enable integration through positive discrimination. As I explained here, simply recognizing minorities as such runs counter to the universalist constitutional language that makes France a theoretically colorblind republic. Sarkozy would also like to extend the concept of “parity” to the socio-economic sphere. As I noted during the runup to the French presidential elections last May, legally guaranteed gender equality was an important issue. The preamble to the 1946 French Constitution declares that the “in all areas, the law guarantees women rights equal to those of men”. Reality, however, lags far behind lofty principle. Thus in 1999, then prime minister Lionel Jospin launched a constitutional reform to require election “parity”: political parties must field an equal number of women and men as candidates in regional, municipal (in communities with at least 3500 inhabitants), senate (on a proportional basis) and European elections. Sarkozy would extend parity to elections to comités d’entreprise (companies with at least 50 employees are required to organize a committee to represent the employees vis-à-vis the employer), to the Conseil des prud’hommes (an institution established to resolve individual disputes between employees and their employers) and on juries that judge candidates for civil service positions.
Would that his criminal justice policies were as forward looking: following last year’s highly publicized kidnapping of a 5-year-old boy by a pedophile just released from prison, the Sarkozy government tabled a bill providing for lifelong detention of persons convicted of certain crimes involving minors under 15 years of age. Not a sentence of life imprisonment, but a prison term corresponding to the offense followed by lifelong internment in a “socio-medico-legal” institution. The bill was then amended to extend the law to include all minors, up to 18 years of age, and all perpetrators sentenced to at least 15 years in prison for “crimes aggravés” (crimes committed with aggravating circs). After the recent murder of a young woman by a repeat offender, the bill was amended to apply immediately to both repeat offenders and persons convicted once for multiple commissions of a crime on the list (rape of a minor, for example). The Assemblée nationale just adopted the bill in its harshest form. Despite the “immediate” clause, however, continued detention is only possible if reexamination of the prisoner’s “situation” was ordered when s/he was convicted. If the bill becomes law in its current form, it won’t have any real effect for at least 15 years, at which point it could result in the lifelong internment of 30-50 persons who have served their criminal sentences but who continue to be held because they’re considered dangerous.
Progression, regression, modernité à la Sarko.

Glam diplomacy boils down to oil

Copyright won’t let me post the photo: dark glasses covering ¼ of his face, bright white blazer over black shirt, black handkerchief flowing out the breast pocket, is Moammar Gadhafi, President of Libya (flag below right). Next to him walks Nicolas Sarkozy, President of France (flag below left). As they shake hands for the camera, neither looks at or turns toward the other, neither smiles, though Sarkozy has something like a sheepish half-grin on his face. And shouldn’t he look sheepish? We don’t negotiate with terrorists, don’t pay ransoms for hostages, but the EU (and Qatar) paid roughly $500 million to secure not the pardon, not the release, but commutation of 6 death sentences pronounced by Libyan courts to life behind bars. Extradition through regular channels may take up to a year. The 5 Bulgarian nurses and the Bulgaro-Palestinian doctor accompanying them have already spent 8 years in Libyan jails. Bursts onto the scene the “rebel wife” of the French president, reported as saying she does not want to be a potiche (figurehead), and who apparently needs some sort of first-ladyish good works to do. It was made clear that she had no negotiating authority and well publicized that Mr. Sarkozy stayed up all night, speaking on the phone more than once with Gadhafi and José Manuel Barroso, current president of the European Commission. So after the conclusion of some undisclosed deal, Mme Sarkozy flies off to Bulgaria with the 6 former hostages (oops, prisoners), where they are immediately pardoned. Libya called the consul of Bulgaria (flag above right) on the carpet for that, but welcomed Mr. Sarkozy to firm up commercial deals with France, including, apparently, the sale of nuclear technology. As the European deputy I heard on the radio said, we don’t believe Iran’s civil nuclear program will remain civil, so not only is the French diplomatic splash procedurally irregular, its nuclear deal is irresponsible. But nuclear’s not all. Naturally, there’s oil. After 8 years of strained Euro-Libyan relations, the end of the prisoner (hostage) crisis means “all-out cooperation” to Sarkozy: nuclear tech for Libya, oil and gas for France, normalized trade relations (with Europe as well) that will bring Libya back into the “concert of nations”. Condoleezza Rice thinks the same way, though she reportedly has no specific program in mind. Maybe if the US can start buying oil in Libya, we can stop killing for it in Iraq?

Grrrrrr

Remember Nancy Reagan telling us all to “just say no”? How come no one but the equally dangerous seem to be able to say it to GWB? The Herald Tribune reports that

President Vladimir Putin formally notified NATO governments on Saturday that Russia will suspend its obligations under the Conventional Forces in Europe Treaty, a key Cold War-era arms limitation agreement, in response to American plans to deploy a missile shield in Eastern Europe.

When we heard this on the news this morning, I asked my (French) husband why none of the 25 or so other NATO members were able to refuse to go along with this missile shield hoax. He claims that NATO has always been just the US and everyone else follows along. I have trouble believing that. Everyone’s got a budget to balance, and EU members have budget responsibilities with respect to EU membership. Nicolas Sarkozy is making hash of those right now, sending France into extragalactic debt even without shelling out for a missile shield, but this is more the exception than the rule. Surely it would be more cost effective to invest in long-term war-prevention programs like fighting desertification, poverty, illiteracy, etc.?