International Law Cases - Report Example

Papa’s position under international Law International law is still a relatively new phenomenon, and while its existence cannot doubted in the light of the existence of the International Court of Justice , the resolution of conflicts under international law still pose significant difficulties1. There are problems of jurisdiction of the relevant courts and the nature of the law that is to be implemented, which may contravene the national laws that have been established and thereby constitute an encroachment of the sovereignty of national laws. Moreover, in the case of war criminals, states are also reluctant to pursue action against war criminals in an aggressive way in case their soldiers are likely to suffer harm2. However, recent developments have spurred a rising public outcry in the international community against dictators who abuse their powers in their home countries and are responsible for countless atrocities against innocent civilians. In the words of East Timorese Nobel Laureate, Jose Ramos Horta, “in this day and age you cannot kill hundreds of people and then just get fired.”3 This is precisely the issue that arises in the case of both Mr. Jojo and Mrs. Lulu. Since Mr. Jojo had been in power for 15 years continuously, it is more than likely that allegations of abuse of power are not likely to be unfounded. Since he had made systematic and institutionalized use of torture, this indicates that he had made use of Government machinery to encroach upon the fundamental rights of the citizens of Chacha to freedom from abuse of their privacy and freedom. For example, while the UN Charter respects national sovereignty4 it also includes the provision that force is to be used only in self defense5 and the advancement of Human Rights as spelt out in the Universal Declaration of Human Rights must not be violated. Therefore the issue that arises in this case is the flagrant violation of the human rights of the citizens of Chacha through the instruments of torture employed by Mr Jojo while he was in power. The role of the international Courts was initially confined to enforcing national sovereignty, however the increasing importance accorded to human rights has resulted in a change in the role of the Courts. In one of the most significant recent rulings of the International Criminal tribunal for Yugoslavia, the Appeals Chamber held that the "State-sovereignty-oriented approach" that restricted interference in internal conflicts "has been gradually supplanted by a human-being-oriented approach" in recent international law6. This was the basis upon which the Nuremberg international trials for Nazi war crimes were initiated and the Rome Statute of the International Criminal Court clearly establishes that it will have jurisdiction in cases that involve serious crimes that are of concern to the international community as a whole, and these will include the crime of aggression and crimes against humanity.7 Mr. Jojo’s use of torture will therefore constitute clear and flagrant crimes of aggression which are against humanity and have caused pain and suffering to the citizens of his country. Under the UN’s Convention against torture, a leader/person who has been deemed to be guilty of crimes against humanity will not have the privilege of sovereign immunity. This precedent has been established in the aces of the Chilean military dictator Augusto Pincochet who was also accused of crimes of torture against the citizens of Chile.8 However it may be noted that in his case, it was Spanish Prosecutor Baltasar Garzon who pressed for his arrest in the neutral territory of the UK. No action against Pincochet would have been possible in his home country due to the power base the dictator enjoyed and a similar situation arises in the case of Mr. Jojo. Hence in reference to the neutral territory of Papa to which Mr Jojo has made a visit, where he has been arrested by the Public Prosecutor of Papa for extradition to Cucu to face trial, it is perfectly in order for the Prosecutor to press for the arrest of Mr. Jojo and the latter will not enjoy diplomatic immunity although he is in Papa on a private visit. The reason is that he has given up his privilege of sovereign immunity because the crime against him is that of violation of human rights. The same situation may be seen to apply in the case of Mrs Lulu as well, since she has shed her diplomatic immunity due to the heinous nature of the crimes that she has perpetrated against the citizens of her own country which fall under the category of crimes that can be tried by the International criminal Court. For instance Article 7(2) (e) specifically includes torture of individuals who are in state custody are being equivalent to a crime against humanity and Mr. Jojo will be liable under this clause. Similarly, Mrs Lulu will be held liable under Article 8(2)(a) which specifically deals with war crimes. The major issue at stake in these instances is the fact that the sovereign rights of Mr Jojo and Mrs Lulu as individuals must be balanced against the rights of those whom they have tortured and killed. In the balance, the rights of the individuals they have tortured will have precedence over their rights. Therefore the habeas corpus that they have filed is likely to be rejected. A habeas corpus is generally brought by a person who has been arrested in order to demand that a Court give the individual a hearing to determine whether the arrest and detainment was lawful in the first place. The Supreme Court of the United States has best summed up the principles underlying the issue of habeas corpus by stating that it is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”9 But it has also noted the potential that exists for abuse of the habeas corpus, as follows: “But the writ has potentialities for evil, as well as for good. Abuse of the Writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are necessary for civilization.”10 The basic determination that will be made in examining the validity of a habeas corpus will be whether any constitutional issues of fundamental rights of the petitioner have been infringed. In the case of Mr. Jojo and Mrs. Lulu, it may be noted that they are in fact the ones who have infringed the fundamental rights of others with impunity and therefore the Court is not likely to entertain their bid for an enforcement of their fundamental rights. Moreover in the United States, a federal court cannot act upon a habeas corpus in a criminal case, the justification being that no matter what the issues are that a criminal defendant raises before a Court in a habeas corpus – when they are considered in the context of a criminal trial where the defendant is the person accused of a crime, the claims of violation of constitutional rights are not likely to be “of sufficient gravity to warrant the conclusion that fundamental fairness has been denied.”11 Therefore, it is unlikely that the Court will conclude that the habeas corpus has any merit. Thus, in conclusion it may be stated that the Republic of Papa is well within its rights to seek the arrest of both Mr Jojo and Mrs Lulu and their extradition to the neutral country of Cucu in order that they may face trial. Since the defendants enjoy too much power in their home countries, it is unlikely that they will ever be bought to justice unless they are arrested under the provisions of the UN Conventions against crimes of torture and crimes against humanity, in order to face a fair trail in an international Court such as the International Criminal Court and be issued sentence for such crimes. Bibliography * Bass, Gary Jonathan, 2000. Stay the hand of vengeance: the politics of war crimes tribunals New Jersey: Princeton University Press * Orentlicher, Diane, 1995. War crimes tribunal dismisses jurisdictional challenge . The Human Rights brief. [Online] Available at: www.wcl.american.edu/hrbrief/v3il/icty31.htm * Power, Jonathan, 2005. Dictators Beware! International Herald Tribune. [online] available at: http://www.globalpolicy.org/intljustice/general/2005/0113dictators.htm * Part 2 of the Rome State of the International Criminal Court [Online] Available at: http://www.un.org/law/icc/statute/99_corr/2.htm * Schabas, William A, 2001. International Law and response to Conflict In Turbulent Peace: the challenges of managing International Conflict edn Crocker, Chester A, Hampson, Fen Osler and Aall, Pamela. Washington D.C.: United States Institute of peace Press, pp 603-618 Cases: * Case of Daye, 712 F 2d 1571 at 1572 * Case of McClesky 499 US 467 at 496 * Harris v Nelson 394 US 286, 290-291 (1969) Read More