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.
John Beilein butchers what could have been the greatest college basketball game in history
April 9, 2013
No, I haven’t smacked my head and suddenly begun to follow basketball, or any other sport for that matter. Instead this is a guest post by my brother on what sounds like amazing game:
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One of the best NCAA championship games in history was robbed of a fitting end by John Beilein’s inexplicable coaching decisions. Unfortunately, a game that featured the two greatest college basketball teams in the country, a multitude of Hollywood like pre-game and in-game stories, and some fantastic basketball, was decided by coaching. Louisville’s Rick Patino simply did his job; something Michigan’s John Beilein seemed completely incapable of in Thursday night’s game in Atlanta.
Patino’s decision to bench star player and the tournament’s leading scorer Russ Smith was controversial but his decision to put him back in the game only a minute into the second half shows he knew what he was doing. Patino benched Smith to get a point across: Smith had been playing selfishly. His decision was yet more evidence of Patino’s well-documented close and quirky relationship with his star player. Patino understood how important Smith had been in the teams run through the tournament and how important he would ultimately be in determining the outcome of the championship game.
Patino’s combination of superb coaching and strong relationships with his players were on display throughout the tournament; no more so than when key swingman Kevin Ware went down with what has been described as one of the most gruesome on court basketball injuries ever in Louisville’s elite eight matchup with Duke. The love Patino showed for his players and vice versa following the incident, and the way he used the horrific event to motivate his team to a final four appearance, were evidence of his coaching brilliance.
While Patino’s fiery and fantastic coaching continued through the finals; Michigan’s cheif strategist succumbed to new depths of ineptitude with a series of unbelievable decisions that in my mind add up to the most horrifically coached game in college basketball history.
There were signs of Beilein’s coaching blunders early in the first half but the coaching worsened as the stakes increased. Late in the first half Beilein was forced to put Spike Albrecht in the game following an early second foul on consensus national player of the year award winner, Trey Burke. Albrecht, listed at 5’11 (more likely closer to 5’7), a Rudy Ruettiger look alike who averaged 1.8 points per game during the year, caught fire and put on a first half performance for the ages with 17 points on 6 of 7 shooting.
Obviously, Beilein cannot be faulted for leaving Albrecht in a little past the point at which he had cooled down. But Beilein decided to leave him in for almost an entire half after he had cooled down. Albrecht, a player who had averaged 7.8 minutes per game during the year, was forced to play 28 minutes against one of the best backcourts in the country. Even after Albrecht failed to score in the first 10 minutes of the second half and began to turn over the ball, Beilein stuck with him. Even though there were Michigan starters and bench players who had gotten Michigan to that point and who were waiting on the bench for their chance to shine, Beilein stuck with Albrecht. Albrecht played 15 of 20 minutes in the second half and failed to score while turning the ball over twice.
Beilein’s coaching decisions with respect to Albrecht pale in comparison to the decisions he made concerning player of the tournament candidate Mitch McGary. McGary, a freshman sensation picked up his third foul 6 minutes and 10 seconds into the second half and was swiftly taken out of the game by Beilein. McGary inexplicably re-entered the game about a minute later, only to pick up his fourth foul and exit again. The questionable decision to put McGary back in the game was compounded when, during his subsequent 5-minute absence from the game, four of Louisville’s best players, Smith, Hancock, Dieng and Blackshear remained in the game while in similar foul trouble. To fully appreciate the importance of this absurd decision one has to understand that Michigan only has one scoring big-man; they play four guards and a center (McGary). The only reason Michigan was anywhere close to a national title was the outstanding and improved play of McGary. While McGary was out of the line-up on the bench, and Louisville’s foul troubled stars continued to play, Louisville turned a tie game into a 7-point lead; a lead that ultimately proved insurmountable.
Unfortunately, personnel decisions were only the tip of the iceberg. The play-to-play, x’s and o’s decisions made by Beilein will go down in history for their complete lack of rationality. Beilein seemed unaware of the concept of an offence-defense substitution. After keeping McGary out of the game for the majority of crunch time, when he finally substituted his star offensive center into the game, it was after a Michigan made free-throw, just in time to play some defense and potentially pick up that fifth foul.
As Michigan began to fall behind the coaching decisions only worsened. Beilein seemed unaware that Louisville was not in the bonus with 50 seconds left, down four points. Michigan allowed eleven seconds to run of the clock before fouling Gorgui Dieng, a 65% free-throw shooter. Michigan seemed to think they had made an ingenious coaching decision only to realize Louisville was not in the bonus and rather than Dieng having to make high pressure free-throws, Louisville simply had to take the ball out of bounds before wasting another ten seconds.
With the game slipping away, anything resembling an organized play from Michigan was completely absent. Trey Burke jogged up the court dribbling the ball incessantly with precious few seconds on the clock making sure to throw in three or four fancy crossovers before heaving up a 28 foot three-pointer (the same shot that had bailed Michigan out of poor play calling at the ended of the elite-eight Kansas game). Unfortunately, this time Michigan was down more then three points and the pixy dust that Trey Burke had used to counter his coach’s complete lack of coaching had run out.
In the end, while its unclear whether the better team won, the better coach definitely did, leaving one to imagine what it would have been like to see these two amazing teams coached by equals.
By: AJ Hirsch Allen – @ajhirschallen – ajhirschallen@gmail.com
To whom it may concern,
Please find below, as discussed, a short piece that represents a happy medium between my girlfriend, Katherine Gittins’, and my views on Montreal’s student protests. I would be curious about yours as well (see comments section below).
Best,
Jake Hirsch-Allen
—–
Quebec’s student protests were focused on a minor cause and involved poor tactics. The perseverance and passion of Quebec’s students coupled with the heavy handed mistakes of Quebec’s government are, however, gradually prompting recognition of the links between their cause and a broader societal malaise.
I originally thought the “strike” was ridiculous and in many ways continue to view it as irrational. It is hard to reconcile the contradictions of a strike which almost exclusively harms those striking. For example, most students had already paid tuition and will likely have to retake the semester. Their protests have have been poorly targeted and have alienated much of Montreal and Quebec’s populations. Why disrupt a surprisingly effective metro system that is good for the environment and the poor?
The students’ cause, a tuition hike that would maintain Quebec’s universities as Canada’s most accessible, was also low on my lists of political priorities in the face of countless provincial and federal offenses and cuts. Financial and tax reform could provide a more satisfactory response to the tuition increase and would partially fund education on a need or income basis rather than flat subsidies that instead end up subsidizing the rich’s education.
Nevertheless, in spite of their flawed strike, the students have organized a surprisingly powerful and effective protest. They have attracted an incredible amount of domestic and international attention and maintained the media’s focus for months.
From the outset, the protesters mastered the use of symbols. They first cut Montreal’s entire supply of red felt into small squares (their student debt being “carrement dans le rouge”) and are now identified with the color itself. Even nudity is now associated with the protests after thousands flooded the streets wearing only the emperor’s new clothes.
Montreal is the perfect hotbed for such symbolism and such a movement. It rivals Boston for the highest number of students per capita in North America and is the largest city in a province whose latin warmth and progressive activism have regularly resulted in the largest protests in Canada. This is in contrast with the rest of Canada’s political apathy and conservatism.
The Quebec government’s response has added fuel to the protesters’ rage and has resulted in wider support for their cause. La loi 78 forbids spontaneous assembly but has been impossible to enforce. It has been widely condemned for violating Canada and Quebec’s Charters and international human rights law by Quebecois lawyers, Amnesty International and the UN, among others. Mass arrests and cases of police brutality also echo other government overreach in Canada (e.g. G20) and abroad (Egypt, Occupy Wall Street, etc.).
As the government’s responsehas become more draconian and offensive, the strike has morphed from a controversial protest into an increasingly nuanced and broad movement. This is exemplified most recently by cinematic scenes of “casseroles”, individuals and groups walking Montreal’s streets wooden spoon and pan in hand, expressing their views through an almost instantly universally recognized sound.
The power of this movement is that it captures the zeitgeist of the Arab Spring and the 99%, a philosophical parallel made concrete by recent protests of support by red badge-wearing New Yorkers. And it does so in one of the most politically active regions in North America. Quebecers of all generations and backgrounds are seeing their own discontent with the erosion of social welfare systems, universal healthcare and corporate controlled and corrupt governments, reflected in the suppression of the often much more radical students. Whether this movement will result in positive political change or simply a return to divisiveness and separatism remains up to both the protesters and the police, the government and the people.
Kat’s mom responded with the following insightful comments from France:
On 2012-06-03, at 5:49 AM, Francine Lecompte Gittins wrote:
Views from the Europeans are that the point is no longer merely to express disagreement with the government’s decision to increase the tuition fees, but also to resist an unprecedented authoritarian crackdown.
The European’s perception is behind the ruling class’s frenzied response to the strike is their recognition that it represents an implicit challenge to the austerity measures being implemented by governments in the spectrum of politics. Europeans fear that the student strike could become the catalyst for a mass movement of the working class against their drive to place the full burden of the capitalist crisis on working people.
In fact, Europe relates Quebec’s malaise to the Greek and Italian governments which were unable to impose the staggering cuts demanded by international financial markets because of popular opposition. The events in Quebec exemplify this global process. Capitalist governments in the world are responding with state repression to mounting resistance to their class-war program of wage and jobs cuts and the dismantling of social services. They are trampling on democratic rights and criminalizing working-class opposition.
The two vital conclusions being drawn: the working class faces a struggle for political power against the capitalist social order and the defence of democratic rights requires the revolutionary mobilization of the working class.
It is understood that the rising popular movement in Quebec demands not only quality education but a different vision for society … lets hope that a happy medium can be found …
Francine
Despite the inherent difficulties it is interesting to live through these tumultuous times.
…or at least that’s Venkatesh Rao’s argument in his recent Forbes.com article, “The Rise of Developeronomics.” His article combines 3 memes that I believe are transforming our economy. They will move the focus of commerce to software and to the individuals that create it.
Rao’s opening paragraphs capture the first meme well, describing the hard time we’re all having with where to put our money these days. He contrasts the current situation with the theory in evolutionary biology that reciprocal altruism and cooperation first appeared as a solution to the food storage problem. Sharing the food you couldn’t eat was a necessity and “the best bank for your excess capital was your friend’s stomach.”
Rao continues:
“Unless you are a professional investor (and probably even then), places to store surplus capital today where it will even be safe and/or not depreciate too fast (let alone generate a return) are getting incredibly hard to find. The stock market seems to be a secular, bearish bloodbath. Volatility and unexpected temporary rallies are making short games dangerous. Even staying liquid in dollars seems to have its dangers, due to threats of devaluation and unfamiliar new terms like “quantitative easing” which us average investors are starting to hear for the first time. The Euro isn’t exactly a great alternative at the moment. Investing in gold and similar commodities seems to require a somewhat apocalyptic mindset and decisions about whether or not you want access to the actual metal if things go to hell (which isn’t to say such a mindset isn’t justified at the moment).”
Rao’s solution? Invest in software developers. Every industry needs them and even when the current bubble bursts there’ll still be far more demand than supply. This is how he describes the current developer frenzy:
“In the midst of a thoroughly gloomy labor market, the genuine desperation you see in the software talent wars is almost surreal. Almost every day, I see big companies, little companies, entrepreneurs, wannabe entrepreneurs and even venture capitalists join in the hunt.”
This description is similar to an Economist magazine summary of “The new tech bubble“:
“some start-up firms are dangling multi-million-dollar pay packages in order to tempt star programmers from Google, Microsoft and other big companies. They are chasing scarce skills when the broader technology industry is on a roll.”
I agree with Rao’s description of the current situation as somewhat fantastical but it’s not surprising if one plots the increasing importance of information technology and more specifically software over the past couple decades.
Another Economist article entitled “Another digital gold rush” describes three forces that propel the software revolution forward “First, technological progress has made it much simpler and cheaper to try out myriad bright ideas for online businesses. Second, a new breed of rich investors has been keen to back those ideas. And, third, this boom is much more global than the last one; Chinese internet firms are causing as much excitement as American ones.”
Yet the Economist also characterizes some descriptions of the current upheaval as over the top: “Some excited people have likened this technological upheaval to the Cambrian explosion 500m years ago, when evolution on Earth speeded up in part because the cell had been perfected and standardized.”
The internet or software revolution, at times compared to a Khunian paradigm shift and at a minimum the most significant recent development in human technology, necessitates a rethinking of some economic principles.
In his description of the new role of developers in our economy Rao explicitly dehumanizes and objectifies developers, describing them as the objects of an all-encompassing capitalist game that we are all playing whether we want to or not. One interesting dynamic that he mentions, for instance, is the tendency for software to benefit extremes in company size. Not only are the Googles and Facebooks of the world capitalizing on the increased importance of 1s and 0s but software has also been the primary engine behind the massive decrease in the amount of capital and time required to create a startup, even in other industries. This has resulted in an attraction to the poles where the best entrepreneurs and developers succumb either to the comforts of “gilded-cage workplaces full of gourmet buffets, high-tech nap pods, and daycare facilities” or the freedom and unrealistically slim chance of a windfall at a startup. This latter career choice has become doubly attractive due to the totally overblown publicizing of the relatively few individuals who have gotten rich quick (while I’ve seen many stats on how few startups make it, I’d be curious if proportionally more are making it big since software has done so).
Eric Ries’ book, “The Lean Startup“, perhaps the most popular meme in recent tech startup lore, describes the myriad benefits of small teams focused on fast moving software projects requiring little capital and with massive potential. Applying Toyota’s “lean” methodology to product development including its focus on constant cyclical validation, constant QA and a culture of transparency, this movement has brought significant attention and benefits while reinforcing unrealistic hopes.
One symptom of software’s overwhelming influence about which I was unaware is how early talent war’s are beginning. Apple, Google and others are encouraging students as early as middle school to adopt their technology, doing their best to breed a new generation of iOS or python coders. Just as Google’s investment in Python (one of the three languages the company uses for its work) was in part a strategic bet on the growing talent pool in this under-valued language, so too, my developer-friend Matthew Huebert informs me, PowerSet mined Ruby for young talent.
I think Rao is wrong when he says that this is creating a have/have-not talent divide “that will soon surpass the infamous geopolitical North/South divide in importance” yet he is dead on in noting that it is unprecedented and significant.
Rao cites three reasons for the talent wars:
1. “software development talent is incredibly hard to assess upfront, and its value can be highly situation-dependent, which means intake volumes and intra-industry churn have to be high (since a potential star may not flourish in your environment).”
2. software skills can afford social and economic mobility – the former fad, in my opinion may not endure as long as the latter. Nevertheless I agree with Rao’s statement that “Stock options are simply not as effective in limiting mobility as the power of Russian nobility to whip serfs into immobility once was.”
3. the most important and interesting reason is the third meme I went to discuss, the 10x phenomenon, about which I’d like to learn and write more later. The concept of the 10x engineer is attributed to the now octogenarian software engineer Frederick Brooks, who described why a good programmer is an order of magnitude more productive than an average one (see here for a longer discussion http://www.quora.com/Is-the-concept-of-a-10x-engineer-valid/answer/Tom-Park).
More specifically, Rao explains why the 10x phenomenon applies to software developers in a way that it doesn’t other engineers:
“Other industries turn x’ers into 10xers primarily using software tools (a mechanical engineer equipped with CAD software suddenly becomes a 10x mechanical engineer)… [Yet] the 10x phenomenon, and the [software] industry’s reliance on it, doesn’t seem to get engineered or managed away because the 10xers keep inventing new tools for themselves to stay 10xers.”
While I still don’t completely understand this particularly allegorically interesting paragraph:
“As Alan Kay, a major pioneer of today’s software-eaten planet, pointed out recently, the Internet doesn’t have stop, shut down, or rewind buttons. Once it was turned on, history was essentially rebooted. Software began eating away at the pre-software layers of civilization on the planet, and depositing software-infused layers instead.”
I do find compelling questions about how the internet is changing history. There is no question, software and the internet are dramatically changing how history is being re-written resulting in the medium having a perhaps unparalleled effect on our stories. This relates to what Matt describes as his “random thought” that “software is a very “mental” thing… it changes how we manipulate & categorize the world at a deep level in our minds.” Like him, I too am “very curious about the psychological and sociological consequences of the software revolution.
I do not agree with “David Kirpatrick’s now famous line that every company is now a software company” and think Rao returns to hyperbole when he suggests we will replace the BC/AD distinction with BI/AI (Before Internet/After Internet). Yet I do think this hyperbole is representative of sentiment within the software industry and is perhaps indicative of a problem with its over-exaggerated sense of self-importance. While this narcissism has so far done the software industry well, I worry that it is perhaps the clearest harbinger of a bubble.
The Economist tempers these fears though with the reasonable statement that “irrational exuberance rarely gives way to rational scepticism quickly. So some bets on start-ups now will pay off.” Here the magazine echoes the National Venture Capital Association’s claim that today’s tech firms have robust business models and healthy revenues. It suggests this plus the fact that they are trading at price-earnings multiples “nowhere near as frothy as they were before the last bubble burst in 2000″ should limit excesses in valuing private firms.
I remain a sceptic. I think a middle term bubble is foreseeable and favour the Economist’s portrayal “of signs of irrational exuberance among some investors.” Instead of the indefinite exponential rise or a short term crash foreseen by many I think the software revolution will likely be experienced as a bumpy economic progression for the better.
Matt recently responded to my thoughts on this issue with the following:
“Frothy excitement and narcissistic personalities may be positive signs of a short-term bubble, but are they reason to suspect that the underlying change is weak? Tech is hard for outsiders to understand; I would imagine it difficult for people who do not understand tech deeply to be able to see how much change is coming.”
Spurred in the short term by mobile, social, cloud, platform, apps and data driven advances, we may see significant efficiencies across markets and in societal, environmental and international developmental work.
From new forms of financing, think angel networks and impact investing, to dramatic new uses for internet-based technologies, the latest tech bubble and software more generally will increase standards of living. One brilliant example is Ushahidi’s free, crowd and open sourced software (LGPL) for information collection, visualization and interactive mapping. Other good uses of technology closer to home include open data initiatives from Montreal Ouvert to Open North and Buzz Data to Vote Compass increasing transparency and accountability through technology.
In sum I see software as the latest significant social evolution – a technology that like glasses or the engine have sped human progress and given us new powers. Our current bubble is ironically a sign of software’s long term importance and is the best support for developeronomics.
The abbreviated story of my friend and colleague, Ilan, wrongfully imprisoned in Egypt for allegedly spying for Israel
January 11, 2012
The original article, published in the Washington Post, can be accessed here.
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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.”
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.
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
November 5, 2011
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
November 1, 2011
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…
September 24, 2011
“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.
