The abbreviated story of my friend and colleague, Ilan, wrongfully imprisoned in Egypt for allegedly spying for Israel

The original article, published in the Washington Post, can be accessed here.

——–

In Egypt, jailed but not broken

By Ilan Grapel, Published: January 1

Five months in an Egyptian jail gives a person a lot of time to think. When you are not pacing or trying to catch an hour of afternoon sun through the barred window, there are thoughts of home, family, the freedoms Westerners take for granted, what exactly got you into the mess and even why you came to the country that locked you up. Two months after my release, as I watch news of the Egyptian military’s violent suppression of protestsand raids on nongovernmental organizations, I still think of my first hours of arrest, when I was handcuffed and blindfolded.

When I went to Egypt to spend the summer working at a nongovernmental organization that provides legal assistance to asylum seekers from Sudan and Iraq, I was no stranger to the Middle East. I had studied Arabic in Cairo and spent more than two years in the Israel Defense Forces. I hoped that my summer would prove that my Zionist ideals could coexist with support for the right of human migration and sanctuary. I also hoped to convince the Arabs I met that my Zionism did not have to be antithetical to their interests and that we could work together for peace.

But in post-revolutionary Egypt, my attempts to educate and interact with the local population led to my arrest, to solitary confinement and eventually to the threat of five simultaneous life imprisonments for “espionage” and “incitement.”

On previous visits, the friendships I developed overpowered the omnipresent anti-Israel propaganda of the Arab world. Some former adherents of the Muslim Brotherhood actually wished me luck when I left to do reserve duty in Israel. Most Egyptians I met and chatted with over coffee ended our conversations by admitting to holding misconceptions about Israelis. This reinforced my hopes for common ground.

So during the summer I emphasized my Israeli background, even when I entered Egypt as an American. I identified as a Zionist Israeli to all of my Egyptian friends, taught them Hebrew and showed them Israeli movies. In return, I received lessons in Arabic, Islam and Egyptian culture.

Some who do not know me considered my actions peculiar or harmful. But that condemnation only underscores a particular abyss into which the Middle East conflict has descended since once-influential Zionists and Egyptians considered cooperation to be beneficial, as did the early Zionist leader Chaim Weizmann and Dawood Barakat, the former editor of the Egyptian daily al-Ahram.

On June 12, two dozen state security officials barged into my hostel room, handcuffed and blindfolded me, and transported me to their general prosecutor.

People ask, “Were you scared?” I was terrified and confused. Over time I also became angry and lonely. The initial 14 days were the “best” part of my imprisonment because there was at least human interaction. The prosecutor and I bantered about politics, religion and the Middle East conflict. The conversations were jovial, mostly innocuous, save for some random accusations: “Security reports inform us that you were smuggling weapons from Libyan revolutionaries into Egypt,” or my favorite — but perhaps irrelevant — charge: “Ilan, you used your seductive powers to recruit Egyptian women and that is a crime.”

 

After these first two weeks, the interrogations ended, but my detention continued. Thus began my solitary confinement, which became the true ordeal — near-complete isolation, interrupted just twice a month by consular visits that lasted only 40 minutes. But thanks to the work of so many U.S. and Israeli government officials, I was not lost in the system. My parents and U.S. officials got me books, which I read slowly because I did not know whether I would get more or how long I would be jailed.

People ask, “Were you tortured?” I was not beaten — but consider what it’s like to spend nearly 150 days (3,600 hours) alone in a 10-by-10 room with a bed and chair, a small barred window and no idea what would come next.

 

People ask, “So what do you think of Egypt and your mission now?” My answer is constantly evolving. As my detention and recent events and repressions in Egypt make clear, the revolution brought only superficial change. The junta’s focus on external actors represents a desperate attempt to avoid culpability and abdication of power.

Hosni Mubarak’s notorious state security forces still arbitrarily arrest Egyptians without real charges or trials (as they did me), denying anything resembling due process. Prosecutors and judges go through the motions of court proceedings, but the Supreme Council of the Armed Forces really calls the shots.

Was my trip reckless or “wrong”? No. Despite the peril, the U.S. government sends Peace Corps volunteers to volatile regions because of the benefit of grass-roots diplomacy. Hasbara, the Hebrew term that refers to efforts to explain the Israeli viewpoint, has much to gain from such a strategy, given the pernicious myths about Israel and Jews prevalent in much of the Arab world.

My hasbara provided a viewpoint that changed the mentalities of former Muslim Brotherhood members, the prosecutor and my guards, whose last words were “Shalom, we hope you forgive us.” Israelis and Arabs can continue to maintain the status quo of mutual avoidance or they can dare to coexist. To those who wrongly held me, I say simply, I forgive you.

The writer is a dual U.S.-Israeli citizen and law student at Emory University. He was held in Egypt from June to late October on charges of spying.

Losing Perspective: Downsides to the Personalization of Media

I have been interested in the role of Google, Facebook and Twitter, among others, in exacerbating the echo chamber effect for some time.  Every day I read more news stories linked from my Facebook and Twitter feeds and less linked directly from mainstream news sources (NYTimes, GlobeandMail, etc.). The algorithms that Google and Facebook use to tailor my results profoundly affect my perspective on the world yet I know very little about how they work.

I was confronted by one particularly surprising example of the effects of these algorithms when a friend, who was logged into Google, searched simply for Toronto, and one of my tweets mentioning the city was amongst the first hits. Google took into consideration that I was on his contact list and dramatically modified his search results.

There are a multitude of incredible TED talks but I found this widely circulated talk particularly thought-provoking as it raises a number of fundamental problems facing those of us whose news sources are almost exclusively online and dominated by various forms of social media and web searches. In this talk, Eli Pariser describes how every time we click our mouse we are facilitating the shaping of our media-sphere by Google or Facebook through invisible algorithmic editing.

Recently their manipulation has been trending in the wrong direction. As Pariser points out, we are seeing more of what we want to see, more of what’s easy to take in and less of whats good for us, less material that is difficult or challenging. I agree with Pariser’s conclusion that search engines and social media need to code journalistic integrity and civic responsibility into their algorithms, returning more control to us over our perspective, even if this means less personalization.

Democracy and Innovation

Interesting responses from China to the death of Steve Jobs.

“One of the most popular postings on Mr. Jobs’s legacy came from scholar Wu Jiaxiang.

‘If Apple is a fruit on a tree, its branches are the freedom to think and create, and its root is constitutional democracy,’ he wrote. ‘An authoritarian nation may be able to build huge projects collectively but will never be able to produce science and technology giants.’

On that, Wang Ran, founder of a boutique investment bank eCapital, added, “And its trunk is a society whose legal system acknowledges the value of intellectual property.’”

A Mandate to Arrest Gaddafi – unfinished arguments…

 

“Mr. President, the international community is in the initial stages of establishing the ICC. Make no mistake about it: if the international community does not ensure that the orders of the Court are enforced, it is bound to go the way of the League of the Nations.”

Judge Gabrielle Kirk McDonald, Address to the United Nations General Assembly, Nov. 8, 1999

Arresting Gaddafi: Arguments In Support of the Enforcement of the ICC’s Arrest Warrant

A NATO supported arrest of Muammar Gaddafi, the former dictator of Libya, could overcome significant popular cynicism about the NATO mission, the ICC and regular opposition to the Court’s indictments based on peace versus justice arguments. Most importantly, capturing and prosecuting Gaddafi would be a coup for the Libyan people and would add credibility to its nascent government. Yet for any of these results to be achieved Gaddafi’s arrest and prosecution must by undertake according to international due process.

In addition to the sound Liberal and realist arguments for enforcing the warrants issued in the Libyan situation, a mandate for this arrest can also be made out in international law and there are compelling precedents to support Gaddafi’s arrest and prosecution’s legality. As such, these arguments will hopefully be relevant to the commanders of NATO’s mission in Libya, Operation Unified Protector. Below I set out these legal arguments and precedents.

The ICC’s Achilles Heel

While the UN Security Council (UNSC) referred the situation in Libya to the International Criminal Court, it continued to ignore the ICC’s “longstanding Achilles’ heel”[1]: its absence of a means to enforce its arrest warrants. The Council, arguably the only international organ with the power to enable the Court, left it powerless, particularly in its mission in Libya, a State not party to the ICC.

Nevertheless, a mandate can be found in the resolutions authorizing NATO’s mission in Libyan and the ICC situation there as well as through principles of public international law more broadly. In addition, there are many precedents following the principle of mala captus bene detentus to support Gaddafi’s detention whether originally by NATO forces or by rebels who would later hand him over to NATO. Finally, it can reasonably be argued that the law of head of state immunity does not apply in this case.

NATO

While NATO’s role in Gaddafi’s arrest is optional, all parties would benefit from its participation. Like Sudan in 2006, Libya is not a party to the Rome Statute so its government is not obligated to cooperate with the ICC. If Libyan forces were to capture Qadaffi and hand him over to NATO, however, there are a number of ICTY precedents supporting NATO’s transfer of Gaddafi to the ICC. NATO, working with Libya’s interim government could solve the ICC’s enforcement deficit.

As a historical and legal precursor to the ICC, the International Criminal Tribunal for the former Yugoslavia is the most useful source of lessons for the ICC’s operation in a hostile environment. At its outset, political and military obstacles prevented NATO cooperation with the ICTY’s work. With no enforcement mechanisms, the ICTY had the potential to spoil the entire international criminal project’s prospects as a deterrent against crimes against humanity. By April 2001, however, the relationship between the NATO and the ICTY had changed dramatically: NATO had arrested 19 indictees, 13 had surrendered voluntarily and 6 had been arrested by domestic law.[2]

In short, NATO is the only international organization that has been directly involved on a significant scale in the arrest of persons indicted by an international tribunal.[3] Further, while far from satisfactory, “ICTY-NATO[4] cooperation can be regarded as representing the foundation of a rudimentary system of international criminal law enforcement in which the international community relies on international peace missions” as a result of “the unwillingness of states to comply with their obligations in the execution of arrest warrants.”[5] Just as the ICTY assisted NATO forces in loosening a deadlocked crisis in the former Yugoslavia, so too, the ICC could cooperate with NATO, adding concrete, visible outcomes such as arrests to its mission’s protective mandate without falling back on regime change or being forced to withdraw by Western political opinion or fatigue.

A Mandate

While the ICC explicitly has jurisdiction through the Security Council’s referral under section 13(b) of the Rome Statute, an unlawful arrest could provide an indictee with a defense against prosecution. To prevent such a defense, the arresting authority must be acting within its mandate. This would also establish a strong precedent and ensure respect for due process.[6]

The clearest source for a mandate for Qadaffi’s arrest would be a UNSC resolution requiring NATO enforcement of ICC indictments. As a result of Security Council politics, however, such a resolution is not likely. This despite the Council’s independent unanimous resolutions referring crimes committed in Libya to the ICC and authorizing the NATO intervention.[7]

Barring the passage of a resolution specifically setting out an arrest mandate, an implied mandate could be derived from three sources: 1) the UNSC’s referral to the ICC and related international criminal statutes and precedents, 2) the UNSC resolution authorizing member states and regional organizations to, inter alia, take “all necessary measures” to protect civilians in Libya or 3) public international law more generally including customary law and the Geneva Conventions.

The UNSC Referral

The triggering by the Security Council of an ICC investigation under Article 13(b) of the ICC’s founding Statute (the “Rome Statute” or “Statute”) was and is legally analogous to the Council’s creation of the ad hoc Tribunals for Rwanda and the former Yugoslavia. Both scenarios involve a Chapter VII UNSC resolution triggering a judicial process to try individuals for war crimes and crimes against humanity. Both use a judicial organization as part of the UN’s enforcement mandate, employing a tribunal to assist its efforts to bring about peace and security. More specifically, the Council refers a “situation” to the Court which, under Chapter VII of the Charter, entails either a threat to the peace, a breach of the peace or an act of aggression.

It now appears “beyond dispute” that the Security Council’s use of Chapter VII to establish the ad hoc Tribunals is legitimate.^[8]This lends substantial credence to the legal basis for Article 13 (b) investigations and arrests. The referral of a Chapter VII “situation” to the ICC thus implies that the Security Council intended the Court to function as an ad hoc enforcement arm of the UN parallel to its temporary Rwandan and former Yugoslavian predecessors. Thus, broadly speaking, the Court’s “mission” is to remedy the breach of international peace and security.

Yet there is a disparity between this mission and the powers of the organ assigned to carry it out. The ICC cannot be a UN enforcement mechanism because it is like “a giant without arms and legs” that “needs artificial limbs to walk and work.”[9] This reveals a schizophrenia that often afflicts the Security Council: hesitant to offend and eager to please, the Council drafts mandates without allowing for the means to carry them out.

The ICC’s mission in Libya is handicapped by a particularly weak resolution. Whereas Resolution 827 creating the ICTY provided that:

all States shall cooperate fully with the [ICTY] and its organs [and] take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber

Resolution 1970 is only binding on Libya; it does not oblige the participation of other States to implement its resolutions. Further, Article 29 of the ICTY’s statute provides that,

1. States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.

2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:

…

(d) the arrest or detention of persons;

(e) the surrender or the transfer of the accused to the International Tribunal.

Yet similar provisions in the Rome Statute are all discretionary. The Council has ordered the giant to undertake an odyssey but has neglected its “achilles heel.”[10]

This paradox may be the result of the Security Council’s impotence: with no permanent enforcement mechanism, it is forced to rely on the contributions of member-States, which are in turn, dependent on domestic political support. The Council’s dependence on States to enforce its mandates raises questions about the verticality of its relations with States because the fickle nature of international opinion often produces UNSC mandates without means (for more on verticality see section NTD below).[11] In Libya, however, short of having NATO troops on the ground, all of the actors are in place. If the right circumstance were to coincide, as in the scenario outlined above, only the mandate need change, or be interpreted appropriately.

Libya’s obligation to cooperate is the only unequivocal order in resolution 1970 related to enforcement of the ICC referral. This is in line with the Statute, which “envisages arrests being effected exclusively by national authorities.”[12] As indicated above, with regard to Libya, resolution 1970 can be read as overriding the Council’s recognition that only States party to the Rome Statute have an obligation to cooperate.[13] The Gaddafi regime’s actions, however, offer little hope for securing assistance and Libya’s rebels remain far too weak to capture Gaddafi or his accomplices.

The Gaddafi regime’s ongoing participation in the very crimes that the ICC was investigating has demonstrated its defiance of international norms since well before the passage of Resolution 1970. It was therefore evident to the Council and Court before the referral that they would not receive substantive cooperation from the Gaddafi regime. The simile about the giant captures exactly the ICC’s current plight in Libya: “the artificial limbs are the State authorities. If the co-operation of States is not forthcoming, these tribunals are paralysed.”

This contradiction, between the reality and the resolution, requires that the Court press beyond the Council’s explicit obligations to search for the UNSC’s intention amongst its explicit “urgings” and implicit requirements. For instance, in the case of the Sudanese referral the Council’s reference to unnamed “other parties to the conflict in Darfur” could have suggested an obligation on the part of the rebel factions fighting Government of Sudan forces to cooperate with the ICC and could even have justified their transfer of an indictee in their custody to the Court. This begs the question how rebel forces would effect such a transfer, and to whom, which brings us to the need for international forces on the ground.

The legal regime regulating such hypothetical forces remains unclear. Since Rome Statute States parties have a general obligation to “cooperate fully with the court in its investigation and prosecution of crimes within the jurisdiction of the Court,”[14] it is not a stretch to see an obligation on the forces of all States parties contributing to Operation Unified Protector to assist in enforcing the ICC’s indictments. Alternatively, under article 87(7) of the Statute, the Court could request that troop-contributing State parties cooperate with the arrest of indictees. However, here again, the Court would be reliant on the Security Council to enforce cooperation.[15]

The Rome Statute

In establishing the ICTY and the ICTR to deal with situations constituting threats to international peace and security, the UNSC intended that individuals actually be arrested and believed that these arrests would benefit both peace and security.[16] The same is true of its referrals to the ICC.[17] Just as it established the ad hoc Tribunals using an implied mandate under Chapter VII, so too a mandate can be read into the ICC’s trigger mechanism.

Before 1993, the Council’s “peace and security” enforcement powers had never been interpreted to include the creation of a criminal court, and their extension into this realm had little basis in the text of the Charter. The UNSC’s use of its implied powers relies on “the crucial link between peace and justice.”[18] This link implies not only the creation of the court but also its effective operation.

It follows from the argument that the ICC has inherent powers of arrest based on the Rome Statute, that in Libya, necessity dictates that NATO cooperate with the Court in the detention of individuals. This inherent power to secure cooperation is supported by two International Court of Justice decisions, The Reparation Case and The WHO Agreement Case. Logic, the Rome Statute, UNSC Resolution 1970 and the ICJ support the ICC’s inherent power to compel international organizations, and particularly UN organs, to enforce its mandates.

This argument is significantly weakened by the ICTY Appeals Chamber’s decision in Blaskic stating that the Tribunal “does not possess any power to take enforcement measures against States.” The Chamber continues: “Had the drafters of the Statute intended to vest the International Tribunal with such a power, they would have expressly provided for it. In the case of an international judicial body, this is not a power that can be regarded as inherent in its functions.”[19]  The ICTY’s precedents are not binding on the ICC, however, and its functions are broader.

In practice, States frequently read implied powers into the mandates of UN organs.[20] Such practice could imply a customary norm (see below) and the same can be said with regard to interstate abductions of alleged criminals.

NATO’s Mandate

NATO’s Security Council mandate nevertheless offers significant support for an obligation to cooperate with the ICC.  It includes the determination

… Recalling its decision to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court, and stressing that those responsible for or complicit in attacks targeting the civilian population, including aerial and naval attacks, must be held to account[21]

This excerpt can be seen as a “hook” on which to hang the requirement that Member States enforce ICC arrest warrants when involved in the situation in Libya.

A basic problem, however, is that arrests are often viewed as counter-productive to peacekeeping or peace-enforcement missions, as they were early in the conflict in Yugoslavia. UN peacekeeping missions require neutrality, it is argued, or at least the perception of it, and this is made impossible when peacekeepers are actively pursuing war criminals.[22] Yet if independent actors abduct the indictee, the peacekeepers’ relative passivity could support their neutrality.

Customary International Law and the Geneva Conventions

Recognizing its lack of law-making powers, the Security Council only conferred on the ad hoc Tribunals the power to adjudicate “universally recognized criminal laws,” that is, violations of the Genocide Convention, crimes against humanity, war crimes that had become customary norms and grave breaches of the Geneva Conventions.[23] These laws are widely accepted as constituting jus cogens^[24] customary international law, making them binding on all States and debatably, on international organizations.[25] In other words, because international crimes affect the interest of every member of the international community, the obligation to prosecute or extradite such criminals can be considered erga omnes.^[26] Among other sources, the Geneva Conventions, the Genocide Convention, the Rome Statute and much of the jurisprudence from recent international criminal tribunals support this obligation.^[27] As it was created to enforce this obligation, the ICC has a claim to a more vertical legal assistance model whereby it could compel States parties and other international actors to enforce its indictments.

Resolutions from both the Security Council and the General Assembly have urged States to cooperate in the prosecution of violations of international criminal law.  For instance, the General Assembly’s adoption of a resolution “with a view to halting and preventing war crimes and crimes against humanity,” thatprovides that States shall “take the domestic and international measures necessary for that purpose” by a vote of 94 in favour, 0 against and 29 abstentions, and the reliance of domestic courts on that resolution,[28] strengthen the customary obligation.[29]

To be Continued: Obstacles to NATO’s Arrest of Gaddafi Other than the Mandate:

The ICC’s human rights guarantees are almost as important is its mandate. The integrity of the Court and the Statute should take precedence over any given situation if they are to withstand the fickle nature of international politics. A three-part test could be applied to the arrest, transfer to the court, and prosecution of an indictee to ensure their legitimacy. First, as discussed above, does the arresting authority have a mandate to undertake this mission and therefore is the arrest within the jurisdiction of the ICC? Second, do the circumstances of the transfer bring the administration of justice into disrepute? Finally, in assessing the prosecution of Gaddafi the first question that will likely arise both in terms of the ICC’s jurisdiction and the defendant’s rights, is whether a head of state can be prosecuted by the ICC.

These latter two obstacles will be addressed in a future post...

---

[1] [1] Han-Ru Zhou, “The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC” Journal of International Criminal Justice 4 (2006), 202-218 Oxford University Press [Zhou] at 203.

[2] C.M. Supernor, “International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice” AFL Rev., 2001 [Supernor] at 229.

[3] Zhou at 204.

[4] NATO’s Stabilisation Force in Bosnia and Herzegovina.

[5] Dijk at 71.

[6] See section 4.A.iv.

[7] UNSC Resolution 1973 (2011), 17 March 2011.

[8] William A. Schabas, An Introduction to the International Criminal Court. 3rd ed. Cambridge : Cambridge University Press [Schabas ICC] at 152 citing Kanyabashi and Tadic, ICTY, Ap. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, IT-94-1-AR72 [Tadic].

[9] A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 EJIL 2 [Cassese] at 13.

[10] Dijk at 74 (referring to enforcement as the ICTY’s achilles heel).

[11] Another important problem with the UNSC’s relationship with the ICC is that, at any time, the UNSC can employ Article 16 of the Rome Statute to halt the ICC’s prosecution for at least one year. If anything, this possible suspension makes the subject of this paper even more relevant.See Rome Statute, supra note 4, art. 16. NTD.

[12] Dijk at 71.

[13] This statement was also likely a nod towards troop- or resource-contributing non-parties such the U.S.

[14] Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 [Rome Statute] Article 87(1)(a)

[15] Rome Statute Article 87(7) (Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.)

[16] See UNSC Res. 808 (1993) (on the desirability of establishing the ICTY) “this situation [within the territory of the former Yugoslavia] constitutes a threat to international peace and security’, [and the UNSC is determined] to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them.’) See also UNSC Res. 827 (1993) establishing the International Tribunal and UNSC Res. 995 (1994) (establishing the ICTR which similarly finds a threat to international peace and security and expresses a desire to “put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them.’)

[17] Pietro Gargiulo “The Controversial Relationship between the International Criminal Court and the Security Council,” Essays on the Rome Statute of the International Criminal Court vol. 1 (Ripa di Fagnano Alto : Il Sirente, 1999)

[18] Richard J. Goldstone, “The Role of the United Nations in the Prosecution of International War Criminals” Journal of Law & Policy [Vol. 5:119] [Goldstone] at 120 (Benjamin B. Ferencz, former Nuremberg prosecutor states, “there can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance.”

[19] Prosecutor v. Blaskic, Case No. IT-95-14, International Criminal Tribunal for the Former Yugoslavia, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Appeals Chamber, 29 October 1997 at para. 15-16 [Blaskic, 29 October 1997].

[20] Arangio-Ruiz.

[21] UNSC Res. 1973 (2011) [emphasis added].

[22] Supernor 229.

[23] Goldstone at 121 (For the purposes of this paper the ICC has adopted similar subject-matter jurisdiction.)

^[24]See Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) 1155 U.N.T.S. 331, entered into force 27 Jan. 1980, art. 53.

[25] Supernor at 220.

^[26] As stated in the ICJ Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, 1970 ICJ Reports 3, at 32. “[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”

^[27] See, for instance, Judge Koroma in his separate opinion in the ICJ Arrest Warrant case, stating that “universal jurisdiction is available for certain crimes such as war crimes, crimes against humanity, including the slave trade and genocide.” Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice 1997-2002, ST/LEG/SER.F/1/Add.2, 2003 [ICJ Summary], at 216.

[28] see Polyukhovich v. The Commonwealth of Australia and Another (1991), 172 Commonwealth Law Reports 501 F.C. 91/026.

[29] UNGA Res. 3074 (1973) at para 3.

Re-Re-Post: A Japanese Miracle and Tragedy

As a measure of how much modernization has changed things, as recently as 1923 over 100,000 died in the Kanto quake, which was not nearly as strong, but also generated tsunamis. Remember that when people (as they inevitably will) start talking about the relatively low death toll from today’s events as “a miracle“: it was only a miracle comprising knowledge, understanding of history and plate tectonics, planning, engineering, construction, communications, discipline, and other sorts of hard human work.

The low cost in lives and injuries does not, however, diminish the pain and suffering encompassed in each of those lives. It does not make it easier to witness one’s house or office destroyed. It does not clean debris from a formerly vibrant seashore, or put out a raging fire, or comfort an orphan.

Derek K. Miller, “The modernization of Japan saved hundreds of thousands of lives today“, March 11, 2011 found at http://foolswisdom.com/the-miracle-of-human-action/

{my lost objects find me}

my lost objects find me. The objects  are not unusual: ipods and iphones, cameras, wallets and the little rubber buds on earphones. They’ve been found on sports fields, in the back seats of taxis and on street corners by friends, family and strangers. I am an absent-minded person, often described as a space cadet. Add to that a hectic lifestyle, too many parties and an affinity for high-tech toys and this should be an expensive shortcoming. Yet amazingly, ever since I lost my first Palm Pilot in 10th grade, my mislaid kit has been returned to me.

~

Perhaps the most amazing return took place after my 3rd semester of McGill law school. My classmates and I were partying at a bar on Rue Prince Arthur and, in addition to the usual debauchery, the night had included many photographs with regular flashes even as we stumbled towards cabs.

My next memory is of a phone-call from my girlfriend Kat at the airport. Its 11 a.m., I am still in bed. My head is throbbing and my vision blurry but I compulsively reach over to the bedside table and feel for my wallet. I try to open my eyes enough to look for my camera. It’s the original Canon Digital Rebel, a clunky silver and black machine that’s hard to miss. It’s definitely missing.

I tell my girlfriend I have to call the cab companies. Each of Montreal’s three major companies explains that I’ll have to call back when the same cabbies are working. Unhappy and in pain, I fall back asleep.

Some while later I get another call. The person asks for me and I ask his name. I recognize Eric as another law student but can’t put a face to his name. I am still hung over. Eric explains upon entering a taxi the night before he sat down on a large camera. He tried to turn it on but found it was dead. The next morning Eric went to Future Shop and they charged the camera for him. He flipped it on and the first picture was of him.

Eric then went through the rest of the photos and, with the help of a few other students who’d been out that night, tracked me down.

The camera had been lost and found many times before and after this night though: a week later I left it at a raucous exchange student house party amidst dozens of half empty bottles of beer and wine. I walked over the next day and was met at the door by a Spaniard I didn’t remember holding my Rebel.

~

I got my wallet back once after a stranger around the corner found it on the street, added me to Facebook and asked whether I’d lost it. Everything was untouched. She also asked about Israel having just been there herself and explored my profile. We never spoke again.

I had lost it on the same corner earlier that year. I think that must be where I pull my keys out of my pocket. There was a note waiting for me when I got home one evening saying “Si t’as perdu quelque chose, viens au dépanneur”. Confused, I went to the corner store and found out that I’d lost my wallet and that it had been found.

I owe one retrieval entirely to my father’s persistence: I had just purchased my first iPod. I spent hours converting all of my information into a format I could transfer to it when, on my way home from the gym the next night, I discovered I’d lost it. I retraced my steps, asked in the gym and wandered around the major intersection I’d crossed for 15 minutes before heading home in despair. When I admitted my loss to my parents, my father insisted we get back in the car and search some more. Sure enough, buried in the grass on the shoulder at the same intersection I’d previously been searching, there was my iPod, replete with a footprint across it, but working fine.

Two nights ago I had a similar find: after partying with my cousin, brother and his girlfriend I went to meet up with a few friends of friends at a late-night party. Using the GPS on my iPhone to guide me and a little drunk and bored, I ran the few blocks to their apartment. Within 20 minutes of arriving I realized I couldn’t find the phone. I used every phone in the place to call mine and annoyed the other party-ers by turning off the music a few times. I went on MobileMe and the Find My iPhone feature told me it was a couple blocks away but I thought it was just inaccurate. Finally I left with my friend Sara, half-heartedly looking for the phone as we walked to find a cab (she described me as looking like I’d lost my puppy). Yet again, three quarters of a block from the apartment half in a tiny bank of snow, there was my phone. It 6 missed calls, a few texts and few 5-10 minute long voicemails but wasn’t the worse for having spent a couple hours in the snow.

~

Luck is not always on my side: in one two week stretch in Israel I spilled a glass of water on my laptop and a pitcher of water on my iPhone, I lost my parent’s iPod touch and broke another cellphone. While the computer miraculously started working three days later despite my having plugged it in a few times in the days before, the iPhone never fully came back to life. I quickly bought a replacement for my parents iPod despite Israel’s outrageous prices only to have the ‘rents find out from a bar manager that it had been lost and found.

~

In Amsterdam I once left my large courier bag which as usual contained my laptop, camera and most of my other important worldly possessions under a table at a bar. It was only after getting lost for an hour (not an unusual occurrence) on the way to another bar that I realized to my girlfriend Kat’s dismay that I’d left it. Upon meeting the friends who’d been waiting for us at the second bar we told them we had to leave to retrieve the bag. We then get lost again before finding it  right.

I regularly lose the rubber buds on my over-priced Apple In-Ear Headphones. Each time, after kicking myself for ever having purchased them the bud turns up: on a curb just next to a sewer, in my shoe or sleeve or, most recently, still in my ear (I had given up on it an hour after losing it while biking when my cousin asked what was in my ear). I lost the earphones outright a couple months ago only to step on another pair that someone else had lost in Pearson Airport (YTO).

~

In addition to the time I lost my iphone at McGill and had it returned by a random student who I called while in her next class, I once retrieved it from a 6 foot 4 black man who claimed he’d won it at a poker match. Again I’d left the phone in a cab after partying hard the previous night in Montreal. So hard that I was still very much in pain at 10pm the next evening. Over the previous twelve hours I’d asked my friend Kevin through googleChat to call the iphone. He was volunteering for Obama in Vermont so he sent the iphone an SMS asking whoever found it to call my friend Alex. Alex eventually got in touch with me over Facebook. He told me cryptically to go to a Metro stop in the north of the city where the person who had my phone would meet me in an hour.  He also told me he was going out and wouldn’t be online later. With no other option and still in pain, I got on a bus and headed to the station. After 15 minutes of speed walking between the two exits to the Metro I found the hulking man, gave him the forty dollars he asked for and went back home to bed.

A great video and an old but hilarious newspaper clipping

The wonderful NPR podcast, Radiolab teamed up with everynone.com to create the following video. Think about the Words:

On a completely unrelated note, my parents always had this newspaper clipping by their computer:

Sportsman of the Year

You thought John McEnroe was a sore loser? Harper’s magazine prints comments from Lighton Ndefwayle, a Zambian tennis player, after he was defeated by fellow Zambian Musumba Bwayla in a match last year.

“Musumba Bwayla is a stupid man and a hopeless player. He has a huge nose and is cross-eyed. Girls hate him. He beat me because my jockstrap was too tight amd because when he serves he farts, and that made me lose my concentration for which I am famous throughout Zambia.”

{ International criminal law, French villas, Malaysian beaches and Indonesian rice paddies :: a summary of my travels in Europe and Asia while interning at two tribunals }

The past two semesters have exemplified how spoiled I have been throughout my life in terms of travel. While finishing my law degree on exchange in Amsterdam, and interning at the International Criminal Tribunal for the former Yugoslavia (ICTY) on Radovan Karadzic’s defense team, I visited several other European countries. More recently, I bounced around Southeast Asia. Using Singapore (where Kat, my girlfriend, was on exchange) as a base, I interned at the Extraordinary Chambers in the Courts of Cambodia on Ieng Thirith’s defense team and explored the region.

The following list is a chronology of my 2009-2010 travels. It begins with my first long-term (over a month) departure from North America in three years and only includes cities I explored (rather than transit destinations).

Photography is my means of remembering these travels so each destination below is (or will be) linked to my photos of my adventures there. The photographs are meant to show how I spent the past year and demonstrate how thankful I am.

2009

17-08 – Tel Aviv

20-08 – Nahariya – Tel Aviv

27-08 – Amsterdam

04-09 – Brussels

05-09 – Bruges

06-09 - Amsterdam

09-09 – Grasse

10-09 – Antibes

11-09 – St Tropez

12-09 – Cannes

13-09 – St Paul de Vence

14-09 – St Martin Vesubie-St Jeannet

15-09 – Nice

16-09 – Den Hague - Amsterdam

24-09 – Paris

29-09 - Amsterdam

03-10 – Leiden - Amsterdam

13-10 – Den Hague - Amsterdam

16-10 – Utrecht - Amsterdam

28-10 – London

04-10 - Amsterdam

10-11 – Montreal

20-11 – Toronto

23-11 - Montreal

24-11 - Amsterdam

07-11 – Den Hague - Amsterdam

01-12 – Vienna

08-12 - Amsterdam

18-12 – Rotterdam - Amsterdam

22-12 – Petra

24-12 – Dead Sea, Jordan

25-12 – Tel Aviv

2010

02-01 Kfar Blum - Tel Aviv

08-01 - Singapore

16-01 – Bintan

19-01 - Singapore

22-01 – Kuala Lumpur

25-01 - Singapore

05-02 – Penang

06-02 – Langkawi

08-02 – Singapore

09-02 - Phnom Penh

20-02 – Sihanoukville

21-02 - Phnom Penh - Singapore

27-02 – Phuket – Koh Lanta

28-02 – Railay

30-02 – Bangkok

01-03 – Ho Chi Minh City

07-03 – Hanoi

10-03 – Chang Mai

14-03 - Bangkok – Phnom Penh

19-03 – Siem Reap

21-03 - Phnom Penh

24-03 - Singapore

03-04 – Hong Kong

07-04 – Phuket

09-04 – Ton Sai

11-04 – Phuket

12-04 - Singapore

13-04 – Bali

21-04 - Singapore

29-04 - Bangkok

01-05 – Tel Aviv

{help resuscitate Rights & Democracy}

A quick shout out to the movement in support of the Canadian human rights agency, Rights & Democracy. This movement is “calling on Parliament to exercise its powers and insist that the government cease its interference in the orientation and operations of arm’s-length agencies like Rights & Democracy.” See http://www.rightsanddemocracymovement.org/ for more on this scandal which has already involved office-break-ins, heart-attacks and plenty of resignations…

{Southeast Asian Guesthouse Finds}

Over the past few months Kat and I have rented over a dozen rooms. From moldy, insect ridden mattresses to ochre four poster beds, these fleeting homes have coloured our experience of this vibrant region and resulted in sleepless and blissful nights in turn. This list is meant to showcase those we particularly enjoyed.

the youngest member of the Sularto family

Pondok Wisata Susy

Trikora Beach, Bintan Island, Indonesia

50 minutes from Singapore by very fast and wavy ferry, this island is the city-state’s closest beach resort destination. The rooms we shared with 15 other NUS exchange students, however, in no way resembled a resort. Instead the rough and quaint rooms were situated on a small beach-head owned by the wonderfully modest and welcoming Mr. Sularto. Don’t expect luxury from this kind family, or even hot water. In their place is warm, authentic Indonesian food and company that seems an ocean away from the bustling streets of Singapore. Trikora beach is just far enough from the island’s star rated resorts and only town, Tanjung Pinang. All for under 10 bucks a night including breakfast.

pondoksusy.com or click here to see more photos in my related flickr albums

the view from the window of our bungalow

Anggun

Kuala Lumpur, Malaysia

We spent two nights in a classic backpackers hostel on Jalan Changkat Raja Chulan where the noise from nearby construction woke Kat and I too few hours after the music from the clubs all around final quieted. After a sleepless night spent on the bus from Singapore, the loud accommodation left Kat and I sick from exhaustion. As a result we decided to splurge on something a little more comfortable. Over the course of five hours we looked at rooms in half a dozen of KL’s hotels and guesthouses from the Swisshotel which is actually Malaysian and quite nice, to some quite sketchy, yet still expensive, business hotels that would only show us a room after serious cajoling. Finally, sweaty and exhausted, we were within blocks of our original hostel when we fell upon a place that was everything we were looking for and more.

Impeccably clean and beautifully designed and decorated, this self-described Balinese, Buddhist boutique was a find and a half. Its roof-top restaurant exhibited the same peaceful aura as its leafy entrance and wood-panelled rooms and atrium. Each room had a large flat-panel television that doubled as a computer with a free DVD thrown in. The woodwork throughout was ornate and tasteful as were the furnishings and the bathroom was gorgeous. We stayed in the least expensive room which offered plenty of space though there were larger options for families or those who want a balcony. The staff were kind and well-intentioned, if inexperienced and, because the grand-opening had not yet occurred the rooms were half price. While triple our usual fair, $60 was still a steal for the room.

anggunkl.com

Villa Balny

Mekong Delta, outside My Tho, Vietnam

one of the Villa's bathrooms

This gorgeously designed villa is idyllically situated in the southern Vietnamese countryside. While there are a few signs pointing the way once one gets within a kilometer of the house, our guide, who’d been there before, still had trouble finding it. Every aspect of my family’s stay at this home was delightful (Kat and I were travelling with my parents for 2 weeks).

The kind, warm Vietnamese family that lived in and ran the villa served delicious food that was also great to look at. The villa’s construction was tasteful in every way from its shower-heads, to the woodwork on the ceilings, and from the antique bedside fans to the curtains on the doors and the linens. Even the five hammocks were aesthetically and functionally perfect. All around the house were beautiful and exotic flowers including a large if eccentric garden in the back from which the family had picked many of our vegetables. We had great bike and boat rides from the backdoor and didn’t see a tourist during our stay.

the perfect corner in which to catch up on reading

Over the 24 hours we spent at the villa we learned the story of this family from the energetic septuagenarian grandmother and her caring daughter as translated by our guide. The eldest and youngest sons now live in France having escaped as boat people on a ship that is the villa’s namesake. One of the sons designed the now 3-year-old house with a French friend while another in Vietnam did all the woodwork and oversaw its construction. Being able to partake in this story completed a near perfect sojourn at Villa Balny.

the Villa's woodwork

click here to see more of my photos of the Villa

—

Two more notable mentions that we wished we’d been able to stay at:

In Sihanoukville, Cambodia, right at the end of Otres Beach and about as far from civilization as one can get in this rapidly developing town, a middle-aged Italian man named Claudio owns a few, very rustic bungalows. Claudio only has 3 or 4 very basic rooms and the beach has no electricity so he and his Khmer wife make do with generators at night. Nevertheless the beach’s beautiful quite isolation and Claudio’s warm, quirky generosity and helpfulness make a wonderful contrast to the mayhem of the area’s main Ochheuteal Beach.

Finally, during our brief stay at the atrocious Imperial Mai Ping in Chiang Mai, Thailand (overpriced, dingy, unpleasant staff, etc, etc.) we fell upon an art exhibit at another boutique hotel called Tamarind Village. At 7 years old, this was supposedly the oldest boutique in a city that now has many. Stunning from its idyllic bamboo-lined entrance on, this mini-resort is an oasis from the chaotic streets of old Chaing Mai. The pool, the restaurant, the shop, the staff, the flowers, the bathrooms: all were wonderful. The boutique embodies subtle and modest good taste and has been designed and maintained with every last detail in mind. We only wish we had had the opportunity to stay there.

click here for my Chang Mai flickr album including several more photographs of Tamarind Village

the Tamarind's pool

tamarindvillage.com