Wow. So in a very exciting development, the Palestinian authority and others have requested the ICC to investigate possible war crimes that have been committed in Gaza in the most recent Israeli-Palestinian conflict. The chief prosecutor, Luis Moreno Ocampo, is going to consider the investigation – especially because last week, the Palestinian Authority accepted the jurisdiction of the ICC.

Now, this raises some very fascinating questions for international law. First, does the Palestinian Authority even have legal power to recognize the ICC? The ICC charter includes “sovereign states” — and the Palestinian Authority may or may not be recognized as a “sovereign state.” If it’s not a state, can the Palestinian Authority even be considered a member of the ICC charter? Since Israel has not signed on to the Rome Statute and does not recognize the ICC, the only avenue for the ICC to get involved is through the Palestinian Authority.

If this complex, and controversial legal (and nationalist) quandary is solved, the ICC will have to genuinely consider the 210 requests from various organizations and individuals. Groups like Amnesty International have accused Israel of violence against civilians and the illegal use of phosphorus shells. At the same time, groups like Human Rights Watch have asked the ICC to investigate “Hamas’ rocket attacks on Israeli towns and its alleged use of Palestinian civilians as human shields.”

One positive implication of this is that the ICC will be venturing out of Africa. The ICC has been criticized of becoming the “International Criminal Court of Africa” and of failing to address issues occurring elsewhere in the world. This would be a first step out of Africanization of the court, and could potentially increase its credibility in the future. What I wonder, though, is whether the ICC’s involvement will only heighten pressure on both sides and exacerbate the conflict. It seems to me that the ICC doesn’t have the best record of peacekeeping, and this sort of investigation could cause anger, violence, and conflict to simply intensify. Such an explosive issue has to be addressed very carefully, and I simply hope the ICC is capable of approaching it with the caution it deserves.

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Technology can do so much – it’s connected people everywhere in a common language, given people increasing amounts of knowledge and information, created an increasingly globalized world, and now — it’s revolutionizing even democratization.

Technology, itself, is democratic. It allows anyone to post content on the ever-growing web and gives people immediate access to huge amounts of information that previously would have been obscurely stored in books. You no longer have to pay $20 to read a book – you can often easily glean the same information from the web. This ‘democratization of information’ is like the 2nd printing press, and it’s changing the shape of political systems around the world. No longer do dictatorships and governments have a monopoly on information — ordinary citizens can find out if their leaders are corrupt, if their governments are living up to their promises, if they are being subjected to unfair policies. Technology also helps people organize, and empowers civil society. Knowledge is power, and technology is putting more power in the people – a countervailing force to the state.

But technology is doing more than just providing knowledge to people and breaking boundaries. It’s being concretely used to promote democratization and to improve elections around the world. The new ways technology is being leveraged are incredibly exciting and innovative – and provide hope for future democracies.

Ghana election campaigns; source, BBC

Ghana election campaigns; source, BBC

In Ghana, elections in December 2008 went off quite successfully, and were “praised as transparent and well-run.” One factor contributing to the success was that civil society groups had been using cell phones and texting to monitor and observe the ongoing elections. The Coalition of Domestic Election Observers (CODEO) in Ghana apparently used cell phones to report back on the conduct of voting at polling centers around the country. Volunteers with mobile phones monitored a representative sample of 1,000 out of some 21,000 polling stations. While voting went on, they sent text messages containing data on the conduct in their polling station to a toll-free number. They used special codes for various types of misconduct; for instance, a text containing “D1” meant “ballot box missing”. Volunteers also texted the ballot count for a specific polling station in order to prevent any political party from falsely claiming victory before official results were announced. Similar systems had been used during elections in Indonesia, Montenegro, Egypt, and Sierra Leone – but not as effectively.

In Angola, the first elections in 16 years were held in September 2008 – and to prepare for the momentous occassion, the government spent a lot of time, a lot of money, and a lot of technology to lay the groundwork for a successful election. Since Angola hadn’t had elections in so long, the government identified participation and voter turnout as the main problem to target. More than 8 million people were registered using a technologically advanced anti-fraud system of cards with holograms, pictures and fingerprints. Government officials basically went to remote areas of Angola in order to register as many people to vote; they registered each person by snapping a photo and taking their fingerprint, and then gave each person a voting card. They didn’t even need to know how to sign their names. There was also a lot of publicity encouraging people to vote – some was even sent out through phone text messages. They set up polling stations on oil rigs, and officials used helicopters to go to remote villages and voting stations in order to personally collect ballot papers. Satellite and solar-powered fax machines sent lists from other polling centers. For those who lost their voting cards, more than 6,000 hand-held computers were used at polling stations to help people access their details and registration number. Of course there were logistical issues, and it took 3 years to plan and a whole lot of money.

But at the same time, this sort of intensive effort amazes me and I see such immense future potential to get people engaged in democracy – even in rural villages – through innovation and technology. The potential is literally endless.

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I’m currently reading The Future of Freedom by Fareed Zakaria and he makes some extremely useful observations with regards to democracy and liberty. He says there is a clear division between ‘democracy’ and ‘constitutional liberalism’ – something we tend to lump together in the Western world, having lived in liberal democracies our whole lives. But really, we can have political democracy – free and fair elections, universal suffrage, competing parties, and regularly replaced elected leaders – without constitutional liberalism.

To have “democracy” mean, subjectively, “a good government” makes it analytically usesless. Constitutional liberalism, on the other hand, is not about the procedures for selecting a government, but rather, government’s goals….It is ‘liberal’ because it … emphasizes individual liberty. It is constitutional because it places the rule of law at the center of politics. — Fareed Zakaria

Too often we confuse the two, assuming a democracy must be liberal. We assume that governments produced by election are accountable to the people and provide for human rights and civil liberties. But we can’t assume this. Elected officials can be corrupt, irresponsible, dominated by special interests. Democracy doesn’t have to be liberal. And liberty doesn’t necessarily depend on democracy; a liberal dictator can allow dissent, protest, freedom of speech and religion.

This distinction is important to make. Reading this, it got me thinking about the way to combat problems like torture and human rights violations in developing countries. In the past, it has often been assumed by Western countries that the right way to ensure human rights is to promote democracy in the third world. But we’ve seen the immense failures of democracy promotion — it’s led to wars, occupation, death, and most recently in our memories – the failed promises of the war on terror. Democracy promotion cannot be a foreign policy goal, and democracy cannot be ‘exported’ to the rest of the world from Western models. This results simply in the failure to acknowledge local histories, legacies, customs. Just because a specific type of democracy has worked in the West does not mean it can succeed elsewhere! For instance, many countries with a history of ethnic divisions and violence might find strife exacerbated by the advent of democracy.

A focus on ‘promoting’ democracy becomes an assault on another country’s government, and rather than freeing the people it often results in more disruption and civil war. The West’s focus on exporting democracy ultimately becomes a method of pushing Western ideologies onto other peoples and countries, while failing to understand the true basis of the problems in the developing world. We’ve seen what happened when the Western ideology of Neoliberalism was exported throughout the world, and especially to Latin America – torture, repression, and poverty resulted. Democracy is similarly founded on Western ideologies and in the end – it’s an ‘idea.’ If you don’t adapt this idea to local needs, the idea will fail.

Now I’m not saying there’s anything wrong with democracy. I love America’s democracy and am proud of our exceptional legacy. In many parts of the world, democracy can be a powerful force for positive change, and can bring to power accountable leaders who in return improve the country and help it’s people. There are also great programs like The Carter Center, which include democracy promotion — but by working with local stakeholders in a peaceful and understanding manner, and simply monitoring democratic processes as they are already proceeding. This type of democracy promotion can certainly be beneficial. But at the same time, we have to make the distinction between truly making citizens of Third world countries freer — and ruthlessly promoting, pursuing Western ideologies at the cost of local people’s lives. Each country is different, and we cannot generalize ‘democracy’ as the ultimate solution.

And then there is the fact that simply, a focus on ‘democracy’ over all else assumes that democracy comes with constitutional liberalism. But as we’ve seen from Zakaria, this is clearly not the case.

Rather than focusing on changing and challenging regimes throughout the world through democratization, we must increase the focus on constitutional liberalism, which includes a focus on human rights, civil liberties, and the rule of law. By working with governments – whether they are dictatorships, hybrid regimes, or fledgling democracies – we have to work with their leaders to ensure that human rights are guaranteed, that people know their legal rights, have the right to speak out, and can practice their own religion. We have to focus on the people, first and foremost. It’s an important distinction to make, especially for Western governments and foreign policy. A focus on the rule of law, human rights, and liberalism will ensure that we aren’t enforcing or pushing Western ideologies without understanding local histories.

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First of all, more than six years after the International Criminal Court (ICC) opened, the ICC is holding it’s first trial ever: Thomas Lubanga, 48, a Congo militia leader wanted for his war crimes. He was the president of the Union of Congolese Patriots (UPC), “a military group purporting to further the interests of the Hema ethnic group in the Ituri region of the DRC”. He is especially (but not exclusively) wanted for recruiting child soldiers under the age of 15 into his army, and forcing them to terrorize, kill, harm and rape civilians. In 2003, it was believed that up to 30,000 young child soldiers were a part of the militia group — some as young as 9. He has pleaded not guilty to the accusations, and has finally been put on trial after being in the ICC’s custody for three years.

The exciting news: I will be visiting the ICC in February with other students, and will hopefully have the opportunity to meet the Chief Prosecutor as well as sit in on the Lubanga trial! So this news is just in time for my visit :).

Thomas Lubanga

One of the ongoing debates in international law is how exactly child soliders should be treated before the law. Many of the children abducted by Kony and his forces, for example, have grown up to become powerful military leaders themselves, often commanding large armies and continuing to recruit children into their ranks. Should these leaders be convicted or rehabilitated into society? And moreover, what about the child soldiers who maybe haven’t risen in their ranks, but still are responsible for maiming and brutally killing thousands of civilians? How can we distinguish between their roles as victims, but at the same time – horrifying perpetrators?

But the truth is, if we simply condemn these child and teenage soldiers to be perpetrators of war crimes and attempt to indict them, we are ignoring the forces behind their involvement in these armies. First, many children were abducted and threatened, thus forced into joining the army. Often, one of the first tasks that militia leaders forced abductees to do was to chop off the limbs of family members and friends, or torture nearby civilians while watching them writhe in pain, and eventually die. These are ‘initiation tasks’ that children are forced into performing; otherwise, the answer is certain death. After performing such horrific acts within their local communities, the children have no choice but to accept the army as their new home. After all, they will forever be stigmatized within their communities, and often no longer can obtain the support they need to return home. These children are then trained to use a gun – and again and again, are threatened with death or torture unless they kill and harm others. Being brainwashed into a vicious cycle of killing for survival, it is no wonder that these child abductees grow up with a thirst for blood and often a need to continuously engage in violence. The psychological damage suffered by these children is extensive, but the answer to this problem is not to put them behind bars. Ultimately, we have to not just feel compassion for these children – but also understand that they can be and must be rehabilitated into society in order to reclaim their lives. True, they might have killed hundreds of men and women — but forgiveness and psychological support is what they need more than life in an overcrowded prison cell. One amazing success story is that of Ishmael Beah, who tells a heart-wrenching & yet uplifting story of his abduction into a child army and his eventual rehabilitation into society in his memoir, A long way gone. There is hope for even the seemingly bleakest cases, and though it proves to be a great challenge, the rehabilitation of child soldiers is not something governments and international law can ignore.

The second underlying problem is that of poverty and destitution itself, a reality for many children who are tempted to join the army in exchange for food, false promises of protection, drugs, and weapons. Although most children tend to be abducted, and are generally afraid of joining the army, there are certainly those who join by choice. However, it is dangerous to title these children and young adults as “criminals” because this simplistic assumption ignores the challenges these boys and girls face on a daily basis. Children, often lacking basic needs or the support of a caring family, can easily be lured by hopes of a better future. If the present is so bleak, children might view the army as an opportunity for growth and success; at least they’ll be fed, have a group of friends, and perhaps one day even become a leader! I think even these children ought to be counseled and rehabilitated, because ultimately the perpetrator is poverty and lack of education – not the children themselves.

Understanding all of this, though, I still support the ICC’s indictment of Mr. Lubanga. He is one of the senior commanders responsible for some of the killing in Congo, and we must indict the top-most officials in order to slowly put an end to the abduction of child soldiers. Moreover, the statement made by the ICC through this trial is very significant and Lubanga’s is a gory story that simply needs to be heard by the international community in order to raise awareness about the plight of child soldiers in Africa, especially Congo & Uganda.

The opening of Lubanga’s trial suggests how powerful the court may be in deterring war crimes and providing a voice for victims. As Lubanga pleaded not guilty, his court appearance, and prosecution video of him in training camps with child soldiers, was broadcast live on giant screens in Congo’s war-ravaged northeast, devastated by years of attacks by militias like Lubanga’s. — LA Times

The commanders must no doubt be brought to justice in order to expand the rule of law — the focus, yet, must be on the abductees themselves and on ensuring that they are adequately receiving the treatment they need. I think sometimes we tend to lose sight of the actual issue and the hundreds actually involved in the bloodshed when we start focusing on high profile cases and ‘exciting’ events such as this one. There are many more criticisms of the ICC, but that I will save for the next post.

Moreover, another advantage of this case is that it takes a new step in international law; it allows victims to play a direct role in the trial and to be represented by their own lawyers. A group of 93 victims is participating in the Lubanga case.

In fact, this is a small, tiny step forward for international criminal justice — only time will tell if Lubanga and others will finally experience justice for their acts. In the meantime, there is much more to be done in terms of helping the actual victims of his crimes — young children that we can’t forget in our elusive quest to find justice.

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Although I read this article months ago, it still keeps haunting me and lurking around in the back of my mind. Shockingly, “public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them” due to overwhelming workloads. It is no secret that the U.S. criminal justice system needs vast improvement, but this is absolutely outrageous. The fact that public defenders are so overworked means that they are able to dedicate less and less time to each individual case – and this ultimately interferes with the constitutional right to counsel for those who cannot afford it.

It’s completely unacceptable that public defenders are so overloaded with cases that each lawyer has to handle almost 500 felony cases per year (which has risen from about 367 in the past three years). And caseloads for lawyers who handle misdemeanour cases have risen to 2,225 from 1,380. In just three years!

Public defenders do some of the hardest work in our country. They defend the voiceless and the poor, and often have to fight for people they know are guilty — all in the pursuit of justice. Their jobs are difficult in themselves and often involve personal ethical battles and questions of morality. But in spite of this, public defenders are notoriously overworked and underpaid. They often work long hours for salaries of only $35,000 – $50,000. They do this out of pure personal belief, desire, and motivation to help others and promote justice.

But public defenders should be paid more and their caseloads should be decreased. Corporate lawyers easily earn a minimum of $150,000 starting salary after graduating from a good law school. If state governments begin to pay public defenders more, then public interest law as a profession will attract more talented young minds who might have otherwise entered corporate practice. The truth is, many law students don’t go to law school solely for the money – many of them genuinely want to practice law in court and work for the public interest. After all, it not only gives you incredible legal experience – often more substantive and hands-on, not to mention exciting, than the work on contracts done in corporate firms – but also allows you to join the fight for justice and impact the lives of the indigent. But motivated students are often deterred from this goal by the fear of ever-increasing student loans and the huge debt one incurs from attending law school. It’s not easy to pay back exorbitant law school loans (often over $110,000) while on a public defenders salary of $40,000. If this fear can be eradicated, then corporate law won’t become the default anymore – if one can make a decent living as a public defender, it becomes much easier for young lawyers to follow their dreams rather than sell their souls.

Also, research shows that indigents receive the best representation when they receive the assistance of a well-funded public defenders office. When case loads increase, lawyers are more likely to settle on a plea bargain without full information; they are less likely to go to trial since they don’t have the time, even if a trial is necessary to search out the truth. Courts are even threatening to delay trials or even drop charges against unrepresented defendants. Clearly, increasing case loads are becoming a threat to the very foundation of our democracy. These aren’t simply small issues of misdemeanors either; innocent people have in the past been condemned to death due to inadequate representation. There will be increasing impunity for actual offenders as caseloads increase.

It angers me that our legal system is deteriorating by the day, and such few measures are being taken to prevent this. Rather than increasing the budget of criminal defense offices, state governments are decreasing financing (in NYC, financing from the city and state decreased by $2.7 million this year). It shocks me that we can spend over $500 billion on the war on terror abroad – but refuse to work harder to fight crime at home. Our people live here, at home, in American states and cities – and the law is being flouted every day within our borders, harming our citizens daily. We need to fight this demon first. This is a priority, and it needs to be put higher up on the national to-do list — not banished to the lowly sidelines. Change will have to begin at home, with reform in our flailing criminal justice system, if we are to improve the state of our local communities, provide justice for all – and uphold the ideals of our Constitution.

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