Wednesday, July 02, 2008

In which I have another reason the be peeved at the US "justice" system

Before I even get to the articles there are some problems.

First, clearly, the court could hear Arar's case if it was so inclined. I am willing to admit that there may be a microscopically small range of instances where a government may be justified in screwing someone over on the grounds of national security, but I am awfully tired of the "Aw shucks, there were nuthin' I could do" attitude when they do so. This is not only a criticism of the United States (although they are major offenders). The least you could do is to own the fact that your national security trumped an individual's fundamental rights. If you truly were justified in your actions, the analysis will show that the choice--and it is always a choice--was the correct one (or at least a reasonable one).

Second, "alleged" rendition victim? "Alleged"? Here are some sunglasses, Denver Post--your eyes must be light-sensitive from so many years living in that cave.

Now, here's my concern with the actual substance of the decision: "...Arar, as a foreigner who had not been formally admitted to the U.S., had no constitutional due process rights." (CBC) If you read "constitutional due process rights" to mean "dotting all the i's and crossing all the t's of procedural niceties", then yeah, like it or lump it, these have never been available to non-legal residents of any country. Traditionally, for political reasons, one would try not to mistreat the nationals of other states who were transiting through.

On the other hand, if you read "constitutional due process rights" to mean "not imprison someone, hide them from their own consulate, and then without warning ship them off to a hole in the desert to be tortured and mistreated for months" then generally speaking this is considered dirty pool regardless of the person's nationality.

That's why HUMAN Rights and CIVIL Rights are two different things.

1 comment:

Amaury said...


Im from dominican republic and just discovered you blog, and i love it. Feels good to find someone with the same "unhealthy" love for international criminal law as me. Its a pleasure to meet you. Fron now on i am faithfull reader.

I concurr with you statement, regards the U.S Federal Court of Appeals rulling. I sadly think its joins (the decision) with the U.S Supreme Court jsutice Scalia et Al. in what i Call the "Due Process Kill Americans Doctrine". I am totally concerned with this U.S ruling, in fact feels like a step back in the doctrine expressed by the majority - in the hand of Justice Kennedy deleviring the majority opinion - in Boumediene et Al v. Bush (U.S Supreme Court - June 12 2008): "The laws and Constitution are designed to survive, and remain in force, in extraordinary times" "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is." (Quoting Marbury v. Madison). I strongly belive that the US Federal Court decision will be reversed if it gets to the US Supreme Court, of course, that only will be possible if they respect the stare decisis doctrine but, "amazing" things happen with the american judicial system.

In fact, in the Advisory Opinion of the Inter-american Human Rights Court regarding the consular assistance (OC 16/99 Oct. 1st 1999), it helds that it must - again - must enable all the due process guarantees in favour of whom are in a position where his/her determination of his/her civil/criminal rights or obliagtions requiered so. In this order, recently, the European Court of Human Rights (Saadi v. United Kingdom on January of 2008 - this decision is also controversial) held due procees of the gaurantees under the art. 6 and 5 are enable for aliens also. Even so, the same court held (C.G and others v. Bulgary on april of 2008) that even on national security issues must be an contradictory process before an competent authority. (Same conclusion was hold by the Interamerican Human Rights Court on the Lori Berenson Case v. Perú).

They are some rights and resposnabilities that for the importance role that play on the daily development of the individual, it can not be undermine by any anymore or anything. Due Process Rules and also Judicial Effective Protection are not subject to any limitation. (Vid. Interamerican Human Righs Court - Zambrano Velez Case v. Ecuador; brogan and others v. United Kingdom; mutantis mutandis ICJ, Barcelona Traction Case).

This was just to express some of the pratices regards human rights. But the same practice could be seem in the inetrnational criminal tribunales (ICTY, ICTR AND ICC). Specially the ICC, Fair Trial issues, as an interpretation from the Internationalized Human Rights (21 - 3, Rome Statue; Vid. Appeals Chamber Decision from December 14 2006; Trial Chamber - Lubanga Case - Decision from June 13th 2008 and its july 2nd decision on Lubanga release.)

In another words, i totally agree, respect and defent your opinion.

Best Regards,

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