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01 March 2011

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Jake

Byron Raum,

"The easiest way to deactivate 100 such nuclear devices is to just bomb them - if you know where they are."

Forget the "if" you know where they are for a moment and if the weapons are not hardened or near populated areas. Bombing or “counterforce” targeting/strike of any nuclear weapon is not as easy as you think. Yes, its remote that you would cause detonation of the warhead. But if you do not overwhelm the the alpha shock wave of the detonation, spreading radioactive material is a very high possibility and your not going to do this with any conventional weapon.

Yes its well in our capability to take out nukes. But capability and risk (collateral damage) are two very different things.

Really difficult decision. Though there are other ways to take out these types of systems without taking direct actions, and they are even more complex operations.

securecare

keep the map up to date

Ah the ole pea & shell game. Shades of Teh War of Coldness, Machines of Doom & Dr. Strangelove.

Charles I

Col Asad Kayani (Retd)I didn't say he was innocent, just that I can't fathom the whole plot.

Thanks very much for your offer re list of covert ops.

Please send it to misterheebiejeebie@hotmail.com.

Thanks again.

William R. Cumming

While the launcher/erectors may be on the surface no Pakistani General is stupid enough to keep the nukes on the surface--they are all sheltered underground!

robt willmann

The Pakistan Dawn newspaper reports that at the hearing today, 3 March, in the criminal case of Raymond Davis, the court ruled that the case can proceed on because the issue of diplomatic immunity has not yet been decided and no order has been received from a different court blocking the criminal trial.

http://www.dawn.com/2011/03/03/raymond-davis-expected-to-be-charged-in-court-today.html

This time a Pakistani lawyer showed up to represent Davis, and argued that the criminal trial should wait until the issue of immunity was resolved; the request was denied.

The question of diplomatic immunity is being heard by the Lahore High Court (LHC), a different court from the one handling the criminal case. It is difficult to get a clear understanding of what is happening from the brief news reports there, but an interesting twist may be developing.

A rumor seems to be going around that the U.S. might try to remove the issue of diplomatic immunity from the LHC to the International Court of Justice (ICJ).

A paper was filed in the LHC asking that the U.S. be made a party to the case over diplomatic immunity. A second filing requested that the immunity issue not be transferred to the ICJ.

http://www.dawn.com/2011/03/01/petition-filed-to-make-the-us-party-in-davis-immunity-case.html

http://www.dawn.com/2011/03/02/davis-case-lhc-admits-petition-on-media-reports-for-hearing.html

The ICJ is the court part of the United Nations.

http://www.icj-cij.org/

The Pakistani lawyers are taking the position that the U.S. withdrew in 2005 from a section of an optional protocol to the Vienna Convention on Consular Relations concerning Compulsory Settlement of Disputes, and so cannot move the jurisdiction -- the authority to hear a particular type of case -- from the LHC to the ICJ. The Optional Protocol gave the ICJ authority to settle disputes concerning the Vienna Convention on Consular Relations.

However, a big controversy erupted several years ago after the ICJ issued orders regarding some criminal cases with the death penalty in the U.S. in which the defendants, who were citizens of foreign countries, had not been told they could see someone from their consulate when first arrested. This raised the issue of whether States and State Courts would follow rulings from the ICJ. As a result, Secretary of State Condoleezza Rice for the Bush jr. administration reportedly gave a letter to the U.N. withdrawing from the optional protocol concerning the compulsory settlement of disputes in that regard.

Phil Giraldi

Willmann - I am somewhat confused by this. It is not clear any longer what the US case is for maintaining that there was diplomatic immunity as he was not registered with the foreign ministry and was not engaged in a consular task. It is also my understanding that the US does not recognize the international court of justice in the hague because it would open the door to prosecuting Rumsfeld/Bush/Cheney/Wolfowitz/Feith etc etc. Denying the legitimacy of the court is a way to shield them from prosecution.

I believe the death penalty case you refer to involved a Mexican citizen, with the Mexican government going to the ICJ to pressure the state government involved (Arizona?). Don't recall the outcome.

William R. Cumming

robt willman! If memory serves me correctly the Rice action followed a SCOTUS ruling allowing a murder trial to proceed even when the non-citizen defendant had not been informed of his consular rights.

The Twisted Genius

This is a classic case of being hoisted by one's own petard. Our refusal to recognize the international court of justice in the past is now hampering our legal options in getting Davis back. It would be truly sweet if our new found love for the ICJ would open the door to prosecuting Rumsfeld, Bush, Cheney and others as Phil Giraldi pointed out.

Our willingness to even try this avenue shows how desperate we are to get Davis back. Whatever he was doing or knows must be juicy.

Twit

Mr Giraldi,

The US actually does recognize ICJ jurisdiction (http://www.icj-cij.org/docket/index.php?p1=3&p2=2), albeit only on a case-by-case basis. The US does not recognize the jurisdiction of the International Criminal Court (ICC), also in the Hague, which would be the venue in which Rumsfeld/Bush/Cheney/Wolfowitz/Feith etc etc could be prosecuted.

William R. Cumming

Twit! You are correct!

Fred

Twit,

obviously the ICJ needs to change venues for trail of the aforementioned...!

Tosk59

WRC: "If memory serves me correctly the Rice action followed a SCOTUS ruling"

Yup, the case was Medellin v. Texas in 2008, Medellin subsequently executed...

http://www.ph2dot1.com/2008/03/medellin.html

Twit

Fred,

I'm not sure what you mean? The ICJ and ICC are two different institutions in two different locations.

Without getting into to too much arcana of international law, the ICJ (aka "the World Court") is part of the United Nations. It is a civil court that decides on disputes between states (i.e. members of the UN). The authority of the ICJ comes from the UN Charter. The US is party to the UN Charter and therefore the ICJ does in theory have jurisdiction over the US (i.e. to adjudicate disputes between the United States and other countries). However, in practice the US often - but not always (see e.g. the Gulf of Maine dispute with Canada) - simply refuses to cooperate with the ICJ.

The ICC on the other hand is not part of the UN. It is a criminal court that exists to prosecute individual people (i.e. not states) who have committed crimes - specifically genocide, crimes against humanity, war crime, and aggression - so serious that they impact the international community. The authority of the ICC comes from the "Rome Statute," a treaty of which the US is not a party. The ICC thus has no jurisdiction over US citizens, unless a US citizen commits one of the above crimes in one of the 114 other countries that are party to the Rome Statute, or if the UN Security Council refers the US citizen to the Court (which probably won't happen since the US has a veto in the UNSC).

Therefore, and since it's unlikely for them to ever see the inside of courtroom here in the US, rather than the ICC, the best hope for Rumsfeld, Bush, Cheney, Wolfowitz, Feith to answer for their crimes is via what's called "universal jurisdiction," which many countries assert for crimes like genocide, war crimes, crimes against humanity, and systematic policies of torture. The crux of UJ is that one can be prosecuted for such crimes no matter where they were committed and no matter what nationality the accused is. See http://en.wikipedia.org/wiki/Universal_jurisdiction for examples.

Apologies for the long reply to a very short comment!

JYD

I must express my skepticism with this "they are out to steal our nukes" theory about this Davis affair.

If such a US black ops team aimed at grabbing Pakistan's nukes really exists, they surely wouldn't be sending a lone operative out into the ether as Mr. Davis was found in.

More realistically, Davis was likely a security cover man for a CIA team gathering intel on jihadists that the ISI WON'T provide i.e. the "good" jihadis as seen by Gen. Kayani and his people.

The old Lahore neighborhood where Davis was confronted by the ISI tail happens to be a shouting distance away from the headquarters of the Lashkar-e-Taiba. Nuclear facilities are probably the last thing you'd find in the old city. The jihadi angle also explains why Davis may have freaked out when cornered in that area by people who he must have believed to be part of the jihadi group he was snooping on. He'd surely not want to be Daniel Pearled.

I do agree that the Davis incident likely represents a line in the sand for Gen. Kayani. But rather than nukes, it was probably because he wants to keep his favorite jihadis from the prying eyes.

However, it is more palatable to others and easier to rally the faithful with a "they're out to get our nukes" theory than to say "they came too close to our pet terrorists"

Twit

PS: If you are ever in or near the Netherlands, I highly recommend observing a trial at the ICC or one of the other international criminal tribunals in the Hague. They are free and open to the public, and it is a powerful thing to witness truly wicked men be ground up in the slow, sterile wheels of international judicial bureaucracy.

I observed one trial at the ICTY (for the former Yugoslavia) with two defendants in the dock, one quite grandfatherly and benign looking and the other the living stereotype of a fat, ugly Eastern European war criminal (both were accused of planning and leading the annihilation of several towns and villages). What was interesting was that during the opening formalities they made a big show of their contempt for the process, reading newspapers, putting the feet up on the desk, talking to each other, etc; but then when the testimony started they turned to the gallery and made another show of staring down and mentally registering each member of the audience. The ICC is very different in that all the cases are from African countries, and the only show the defendants (who were mostly accused of mass murder and mass rape) put on was one of almost obsequious respect and politeness to the judges, lawyers, and the court. These defendants never looked at the audience.

The Twisted Genius

JYD,

I don't think the Pakistani government, military or ISI have ever mentioned nukes. That's a theory advanced by some of us here at SST. And it is just a theory. Whatever Davis and apparently many other Americans are doing in Pakistan is not endearing them to General Kayani.

Fred

Twit,

I appreciate the detail. I should apologize for being a smart a&* with the last comment, though your response gives me a bit of eduction. I'll have to read up on both ICJ and the ICC so I have some idea of what I'm talking about.

The beaver

Interesting paragraph that confirms Brigadier Ali's opinion about the Pakistani Embassy in DC opening the visa tap for US agents:

http://www.economist.com/node/18289296?story_id=18289296&fsrc=rss


As relations soured, Pakistani intelligence, which already feels humiliated by America’s widespread drone attacks against the Afghani Taliban on Pakistan territory, tried blocking the arrival of American agents by vetoing visa requests. The Americans (and Mr Zardari) responded, last year, by arranging for Pakistan’s embassy in Washington to hand out visas independently. Dozens of American contractors reportedly flocked into Pakistan.

Furious, the ISI targeted the CIA, leaking the name of the station chief to the Pakistani press in December and so forcing him out. American intelligence in turn briefed friendly journalists that the ISI was responsible for the leak. Most strikingly, the ISI is now rumoured to be behind efforts to arrest more Americans. Aaron DeHaven, with connections to the security industry, was detained in Peshawar in late February for overstaying his visa. Leon Panetta, the CIA head, calls the fraught ties with Pakistan “very complicated”.

robt willmann

Irony has raised her beautiful head again, it seems.

I agree that the U.S. claim that Davis has diplomatic immunity is really stretching the silly putty, but apparently it is still being asserted.

The U.S. ratified the Vienna Convention on Consular Relations in 1969, and also approved the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention.

The International Court of Justice (ICJ) is the court for the United Nations, and the Optional Protocol to the Vienna Convention required that the ICJ would be the place where disputes about the interpretation or application of the Vienna Convention would be decided.

I have read -- but have not seen the source documents -- that the U.S. was the first country to use the optional protocol when it successfully sued Iran in the ICJ regarding consular relations over Iran's taking of U.S. hostages in Tehran in 1979.

The U.S. Supreme Court in Medellin v. Texas, No. 06-984 (2008), described the ICJ arrangement and the issue of consular relations.

A nation can consent to the authority of the ICJ in two ways. It may agree generally to jurisdiction on any question arising under a treaty or general international law, or it may consent specifically to jurisdiction over a particular category of cases or disputes pursuant to a separate treaty. The U.S. originally consented to the general jurisdiction of the ICJ in 1946, but withdrew it in 1985. Since the U.S. agreed to the optional protocol to the Vienna Convention, it still consented to the ICJ's jurisdiction concerning cases involving consular relations.

Things were rocking along just fine until Mexico sued the U.S. in the ICJ in 2003 concerning 51 Mexican Nationals on death row in the U.S. who were not told they could contact their consulate after they were arrested, as the Vienna Convention required. In 2004, the ICJ ruled in the Avena case against the U.S. and said that the defendants were entitled to have their convictions and sentences reviewed and reconsidered.

This decision hit the hornet's nest of U.S. death penalty politics.

Jose Medellin, one of the 51 Mexicans in the ICJ ruling, had been convicted of an ugly gang rape and murder of two teenage girls in Houston, Texas, and was given the death penalty.

The Bush jr. administration tried to cover the bases (and itself politically) and in 2005 sent out a memo after the ICJ decision that the State courts would give effect to the decision and sent out Condoleezza Rice with a letter to the U.N. that the U.S. was withdrawing from the optional protocol consenting to ICJ jurisdiction in consular relations cases.

Then Medellin went back to court in Texas via a writ of habeas corpus to try to reopen his case in light of the ICJ ruling and Bush jr's memo. The Texas court said "no", and so this hot potato ended up in the lap of the U.S. Supreme Court in the October 2007 term and was decided in 2008.

http://www.supremecourt.gov/opinions/07pdf/06-984.pdf

The Supreme Court ruled that the ICJ decision and Bush jr's memo did not bind domestic law and State courts. The Supremes said--

"As a signatory to the Optional Protocol, the United States agreed to submit disputes arising out of the Vienna Convention to the ICJ. The Protocol provides: 'Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice'."

And then, the punch line--

"Of course, submitting to jurisdiction and agreeing to be bound are two different things."

A professor in law school who had been a law clerk to Supreme Court Justice William O. Douglas candidly told us in class one day, "the definition of a legal mind is a mind that can think of one of two interrelated things without thinking of the other one!"

So as it turned out, Condi would not have had to send her letter in 2005 to the U.N., but the Supreme Court did not neutralize the issue until March 2008. Medellin was executed in August 2008, after a final application for a stay of execution was denied by the Supreme Court with written opinions, instead of the usual short denial.

http://www.supremecourt.gov/opinions/07pdf/06-984a.pdf

The U.S.A. starts out as a champion of the Vienna Convention on Consular Relations and a big supporter of the optional protocol to have disputes about it decided at the ICJ, and uses it against Iran concerning the 1979 taking of hostages. Who would have guessed that the treaty on consular relations would be creatively used to attack death penalty convictions under domestic law in State courts? When that happened, the U.S. rushed to bail out of the optional protocol during the Bush jr. administration, but of course not out of the Vienna Convention itself, desiring the diplomatic protections (and covers!) it affords.

Then about three years later, the Supreme Court "takes care of" the ICJ's controversial decision, ruling that it has no effect on State courts.

And now, as Raymond Davis sits in jail in Pakistan while its government is on the political hot seat about a notorious murder case, the U.S. is looking around for a way out and sees ... the ICJ.

Assuming Pakistan signed onto the optional protocol to the Vienna Convention or has consented to the general jurisdiction of the ICJ, the U.S. with a gleam in its eye can rub its hands together and start writing up papers to move the issue of diplomatic immunity from the Pakistani court to the ICJ and the politics of the U.N.

Except there is this one little problem: the letter from Bush jr. and Condi telling the ICJ we're not going to play there any more about consular relations.

Somebody go find a copy of that letter and let's parse every one of Condi's words and every word in the Vienna Convention and U.N. Charter and see if we can split hairs all the way to the molecular level.

William R. Cumming

Thanks Tosk59!

Jackie

Twit: A quick question. Under what jurisdiction or law did the US use to try Charles Taylor for war crimes? And I'm only asking, because at the time, Bush was president and I thought it was kind of farcical or something.

Twit

RW: Very interesting points. And "the definition of a legal mind is a mind that can think of one of two interrelated things without thinking of the other one!" is a great quote!!

Jackie, Charles Taylor is being tried by the 'Special Court for Sierra Leone,' which was established as an ad hoc tribunal by a UN Security Council resolution. Special Courts are confined to crimes within a particular conflict, and the 'law' on which they are based generally are the Geneva Conventions. The SCSL simply 'borrows' the facilities of the ICC, but they are totally separate institutions. I don't believe the USG ever attempted to bring Charles Taylor to trial under US law, although his son ("Chuckie Taylor"- who is a US citizen) is serving a 97 year sentence in federal prison for violations of our own Torture Act he committed in Liberia (i.e. an example of universal jurisdiction).

William R. Cumming

Check out today's opinion article in WAPO entitled "A Treaty US Should Support"!

The beaver

It was a two-paragraph letter sent to Kofi Anan ( March 7 2005- same day Bolton became UN Ambassador).
This is the best source so far:
http://www.discourse.net/2005/03/us_announces_withdrawal_from_consular_convention.html


Dear Mr. Secretary-General:

I have the honor on behalf of the Government of the United States of America to refer to the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, done at Vienna April 24, 1963.

This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.

Sincerely,

Condoleezza Rice

Note:Some of the DB of the UN are PITA as far research is concerned.

The beaver

@ Jackie

This may give you part of the answer:
http://www.charlestaylortrial.org/2009/08/27/charles-taylor-and-the-icc-whats-up-with-that/

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