This blog posting represents the views of the author, David Fosberry. Those opinions may change over time. They do not constitute an expert legal or financial opinion.

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Obstruction Of International Justice By US

Posted on 5th April 2019

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The latest in the continuing saga of lack of respect for international law by the USA is reported in this article on the BBC.

The USA has revoked the visa of the International Criminal Court (ICC) prosecutor, Fatou Bensouda, who is investigating possible war crimes by American forces and their allies in Afghanistan.

The decision is not a surprise, in that the US had warned the US might refuse or revoke visas to any ICC staff involved in such probes. US Secretary of State Mike Pompeo also said: "We're prepared to take additional steps, including economic sanctions if the ICC does not change its course".

Part of the problem here is an inherent issue with international law (see the other posts in this blog thread, by clicking the link above): it is not really law at all.

The US is not signed up to the ICC, although the history of this is complicated. Nevertheless, there is a huge difference between not signing up to be a member of an important piece of International Law, and actively sabotaging it (and using blackmail, in the form of sanctions, to try to force the issue).

It is not as if the US military's record overseas is spotless. There have been many reported cases of torture (e.g. Abu Ghraib), extra-judicial killings, "extraordinary rendition" and other war crimes and violations of human rights by US military or the CIA recorded over recent years. The well known cases all occurred outside of US jurisdiction (although it could be argued that the imposition of martial law places some, but not all, of these crimes within US jurisdiction), which places them out of reach of US courts. Who, then, can investigate and prosecute such cases? The ICC was established to solve this jurisdictional issue, among others.

So now the USA is flexing its muscles to block the investigation by the ICC. We should not stand for this. The USA sees itself (when it wants) as the policeman of the world; that role requires respect from at least some other nations, which in turn requires good behaviour and accountability.

Regarding the sanctions threat, in the same way as with the US-China trade war, which went into full tit-for-tat mode, sanctions against the ICC or its staff should be met with similar sanctions against US entities (people, government agencies, etc.).

If the US, in its continued playing fast and loose with human and legal rights, continues to act as a rogue nation, then they should be treated like one.

Japan To Restart Commercial Whaling

Posted on 4th January 2019

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Japan has announced that it is leaving the IWC (International Whaling Commission) and intends to restart commercial whaling, as reported by the LA Times.

I find this news utterly disgraceful. Whales are not only mostly endangered, but are intelligent and social creatures which we really shouldn't be hunting.

It irks me that the Japanese claim that it is traditional to hunt and eat whales; this is no excuse: it is also traditional in some societies to sell people into slavery, kill unwanted female children, ban women (of menstruating age) from temples, and use religion to justify war, but that doesn't make any of those things good. It also upsets me that hardly anyone in Japan eats whale meat anymore, and the meat from the so-called scientific whaling that Japan has conducted throughout its membership of the IWC has been hard to sell.

The IWC is the perfect example of "International Law". The IWC rules only apply to nations who have signed up to them by joining the IWC, and members can leave whenever they choose. There is no enforcement system, and there are no consequences for breaking the rules. We need International Law with teeth, not just aspirations.

People will probably strongly criticise me for saying this, even though it is tongue-in-cheek, but the last time that Japan was out of control, we dropped two atom-bombs on them. Maybe is is time to repeat the lesson.

My point is that I consider the extinction of even one species a much more heinous crime than the deaths of mere hundreds of thousands of people; we have more than enough humans on this planet. Our planet is in crisis, and the widely held belief that a human is always and automatically more important than a member of another species, or indeed a whole species, is no longer valid (if it ever was).

Germany Blocks Al Jazeera Extradition

Posted on 23rd June 2015

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All is right with the world. Germany is, after all, at least as bureaucratic as I thought. This BBC story reports that a court decision has blocked the extradition of the Al Jazeera journalist, Ahmed Mansour.

The real proof of bureaucracy is that it was necessary for a court to make this decision. I would have hoped that the police could make the decision that the extradition request or the regime requesting it did not meet the necessary standards, and a court would only need to be involved if Egypt lodged an appeal, but that is not how things work in Germany.

Still, in the event, the German authorities did finally say all the right things about the case. Germany's moral integrity is intact, along with their status in the world bureaucracy rankings.

Lax German Legal Standards

Posted on 21st June 2015

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The Germany described in this BBC story doesn't seem to be the one that I know.

I know that the main thrust of the story is about how Al Jazeera is the victim of a vendetta (maybe) by the Egyptian government, and their journalists have been subjected to possible unjust punishment for doing their jobs as journalists; that is actually very interesting and sad. The thing that struck me, however, is that Germany is executing an arrest warrant issued by the Egyptians, which Interpol rejected because it doesn't meet their standards, but apparently is good enough for German law enforcement.

The Germany that I am familiar with is the home of bureaucracy (they behave as if they invented it); the land where police chase you down the street for crossing on a red, and come to your house to stop tree surgeons because you failed to get permission from one of hundreds of affected neighbours; the land where you can't buy a car unless you are registered as resident with the federal government; the land of "ordnung muss sein". The idea that this country has laxer standards for extradition than Interpol is, quite frankly, shocking.

The world is full of regimes of questionable morality: lacking in democracy, where the rule of law is, at best, spotty. Should any civilised nation be, in this age, prepared to extradite a suspect (or in the case of the Al Jazeera journalist, a convicted, in absentia, criminal) when certain conditions (guarantees that the person will not be tortured or executed) and certain standards of proof are not met? Time to renegotiate those extradition agreements, I think.

Extraterritorial law enforcement over Microsoft emails

Posted on 3rd August 2014

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Although I am no fan of Microsoft, as you may have guessed from some of my other posts, this BBC story makes me feel a little sympathetic towards the company.

A court in the USA has determined that Microsoft must hand over email data of some clients, stored on servers in Dublin, the Irish capital, outside the USA's legal jurisdiction, needed as part of a drug-trafficking trial in the USA.

The latest case is only the latest stage in the battle, and Microsoft intends to appeal again, so the issue is not yet closed.

The thing that I find bizarre is that Microsoft is currently fighting this case in the US courts. I would have thought that the Irish courts would have a strong opinion about who has jurisdiction over data held on servers in Ireland, and a court order from an Irish court barring Microsoft from handing over the data would be easy (and cheaper) to achieve.

I really think that it is time that someone stood up to the USA and its extraterritorial legislation and law enforcement, and this case seems an ideal test case.

International Law

Posted on 17th July 2013

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Just to be clear, this article is not about Israel and the settlements. I do have strong opinions about about both subjects, but that discussion is for another time.

This morning I was reading this article on the BBC News site. In it I found this statement:

"About 500,000 Jews live in more than 100 settlements built in the West Bank and East Jerusalem. The settlements are considered illegal under international law, though Israel disputes this. "

Under normal circumstances, when something is against the law, such as stealing or crossing the road when the pedestrian light is red in Germany, it is totally clear that it is illegal. If the matter is not clear, then a court can decide.

The statement that Israel disputes that the settlements are illegal highlights a basic issue with so-called international law: that basically there is no such thing. Wikipedia has a page about international law (here) which states that "International law is consent-based governance", and therein lies the problem. There are, of course, exceptions: some international law has teeth, with a system of courts and enforcement, but mostly international law is enforced only in cases where the nations concerned choose to comply.

To illustrate the problem, one only needs to look at a few recent cases (there are many many more, but these four should make the point):

  • The recent smog crisis in Singapore and Malaysia, caused by forest clearance fires in Indonesia. The affected nations do not seem to have any legal recourse.
  • The horrific war crimes committed in the Balkans war. Although individual criminals have been captured and brought to trial in Den Haag, this has largely been achieved without support from nations such as Serbia, and no legal penalties against nations (as far as I know) have been implemented, only against individuals.
  • The notorious Prism spying programme operated by the US NSA, which seems to be in breach of the law in most European nations. There is frantic diplomatic activity, but no international legal action because there is no legal framework for such action.
  • The continuing whaling activity by the Japanese whaling fleet. The world seems to agree that it is wrong, for a variety of reasons, but it continues, mainly because there is no legal system for declaring it illegal and enforcing such a declaration.

Of course, there is the United Nations. They can decide to declare something illegal (on a case-by-case basis), and to authorise action, but any permanent member of the Security Council can veto such a motion, and such vetoes happen often (the crisis in Syria is a good example). Even if the UN manages to pass a motion, there needs to be some nation prepared to enforce the motion (such as when the USA invaded/liberated Iraq); if no-one is prepared to act as policemen (or vigilante), then nothing will happen.

Nations which do not play by the rules, such as North Korea, are often branded as "rogue states". Based on the widespread habit of ignoring and manipulating international law, it could be argued that almost all nations should be labelled as rogue states. Two criteria are often quoted as measures of the quality of nations: democracy, and the rule of law. Isn't it time that the leading nations of the world started to lead by example, and took the concept of the rule of law more seriously?