20 February, 2017

Internment in World War 2 and later

Over the years, democratic nations have introduced powers to detain those whose presence is considered to be inimical to public safety.  The use of such powers has, at times, been without adequate legal safeguards.  Considerable injustice and tragedy has arisen particularly when the powers have been directed at a whole section of the population such as those of Japanese descent living in the USA in the 1940s.

7th December 1941 was a "Date which will Live in infamy."  Those were the words of President Franklin D. Roosevelt in his famous speech to Congress following the attack by Japanese forces on the United States naval base at Pearl Harbour, Hawaii.   One consequence of this was that President Roosevelt issued Executive Order 9066 - dated 19th February 1942.   The Order authorised the Secretary for War to prescribe "Military Areas" in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion."  This exercise of Presidential power was justified in the Executive Order on the basis that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities."  A further Executive Order was issued in 1942 creating a "War Relocation Authority.

States of Washington and Minnesota v Donald J Trump (3)

The Appeals Court for the Ninth Circuit was going to hold an en banc hearing of the appeal against the Temporary Restraining Order issued by Judge James L. Robart on 3rd February 2017.  The en banc procedure is explained here.  In the event, it seems that the President has decided (or been advised) to issue a new Executive Order.  Meanwhile the en banc hearing is "on hold" - read the court's announcement.

Executive Order No. 13769 of 27th January 2017 - "Protecting the Nation from Foreign Terrorist Entry into the United States".

Documents etc filed in the case may be seen via - State of Washington and State of Minnesota v Trump
Executive Orders issued by various Presidents may be seen via the Federal Register.

A useful explanation of Executive Orders is available at CNBC - Executive Orders: what they are and how they work

08 February, 2017

States of Washington and Minnesota v Donald J Trump (2)

A hearing, by telephone, was held on 7th February 2017 by the Court of Appeals for the 9th Circuit - (Judges Michelle T Friedland, William C Canby and Richard R Clifton).  The hearing may be heard via this LINK.  In the appeal, the Federal Government was asking the Appeals Court to STAY the Temporary Restraining Order (TRO) issued by Judge Robart - previous post.  A Stay would fully reinstate the President's Executive Order No. 13769 of 27th January 2017 - "Protecting the Nation from Foreign Terrorist Entry into the United States"

Documents etc filed in the case may be seen via - State of Washington and State of Minnesota v Trump

The decision:

The Courty of Appeals refused the Stay requested by the Federal Government - see Judgment of 9th February (29 pages pdf).  The BBC 10th February - Trump loses appeal court bid to reinstate travel ban

05 February, 2017

States of Washington and Minnesota v Donald J Trump

A considerable number of legal actions have commenced in the USA against President Trump's Executive Order No. 13769 of 27th January 2017 - "Protecting the Nation from Foreign Terrorist Entry into the United States".   The challenges to the order are based on a number of grounds including arguments that the order is unconstitutional.

The actions include one brought by the States of Washington and Minnesota.  On 3rd February, in the US District Court for the Western District of Washington, Judge James L. Robart issued a temporary restraining order enjoining the enforcement of the executive order nationwide, and entered a temporary ban regarding immigration restrictions, then directed the parties to the action to file any briefs in support of a preliminary injunction by 6th February 2017.   See VIDEO of the hearing.

President Trump took to Twitter to comment - " "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!"

02 February, 2017

SCOTUS ~ President Trump seeks to fill the vacancy

President Trump has nominated Judge Neil Gorsuch to fill the Associate Justice vacancy in the Supreme Court of the USA created by the death, in February 2016, of  Associate Justice Antonin Scalia.  Judge Gorsuch is currently serving as a Federal Appellate judge in the United States Court of Appeals for the Tenth Circuit.

In March 2016, President Obama nominated Judge Merrick Garland  to fill the vacancy but, for entirely political reasons, this did not proceed to the required nomination hearing - see CNN Politics 16th March 2016.  Judge Garland’s nomination lapsed on 3rd January 2017 at the end of the 114th Congress.  Judge Garland appears to have behaved with exemplary dignity in the face of all of this. 

Sally Q Yates and the disagreement with President Trump

In the United States of America, the Supreme Court was created by Article 3 of the Constitution:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

The Judiciary Act 1789 established the structure and jurisdiction of the system of Federal Courts and the Act also created the Office of Attorney General of the United States.  At the present day, the Attorney General is head of the Department of Justice.

Dismissal of Sally Yates:

28 January, 2017

Presidential Executive Orders in the USA ~ a note

On 20th January 2017, Donald J. Trump became President of the United States of America.  An interesting fact is that he did not win the popular vote but he succeeded in winning the Electoral College.  See the 2016 Election Results and this explanation of the Electoral College.

In the brief time since taking office, President Trump has issued important Executive Orders and Presidential Memoranda - see White House Presidential Actions.    The United States Constitution Article 2 vests the executive power in the President.

Executive Orders issued by various Presidents may be seen via the Federal Register.

A useful explanation of Executive Orders is available at CNBC - Executive Orders: what they are and how they work

Links of interest:

International Bar Association 10th December - Open letter calls on President-elect Trump to address declining human rights in the United States

The Advocates for Human Rights responds to White House Executive Orders on Immigration

17 November, 2016

International Criminal Court - is the system breaking apart?

Is the International Criminal Court (ICC) system - which began with the 2002 Rome Statute - breaking down?

On 21st October 2016, the Republic of South Africa served notice of withdrawal - see the Statement by the President of the Assembly of the ICC.   Burundi and Gambia have also served similar notice.

It is reported that the Russian Federation is also to withdraw - Independent 16th November  and also that withdrawal is under consideration by The Phillipines - Independent 17th November 2016.

Some States never signed up to the court's jurisdiction - notably the United States of America, China, India, Pakistan, Indonesia and Turkey.  Some other States signed the statute but have not proceeded to ratify it - notably Russia, Egypt, Iran and Israel.

The UK:

The United Kingdom is a party to the statute and, under the UK's dualist system, effect was given to the ICC's jurisdiction by the International Criminal Court Act 2001 the long title of which states that it is:

"An Act to give effect to the Statute of the International Criminal Court; to provide for offences under the law of England and Wales and Northern Ireland corresponding to offences within the jurisdiction of that Court; and for connected purposes."

ICC work so far:

To date there have been 23 cases before the Court, with some cases having more than one suspect. 

ICC judges have issued 29 arrest warrants. Thanks to cooperation from States, 8 persons have been detained in the ICC detention centre and have appeared before the Court. 13 persons remain at large. Charges have been dropped against 3 persons due to their deaths.  ICC judges have also issued 9 summonses to appear. The judges have issued 4 verdicts: 3 individuals have been fou​nd guilty and 1 has been acquitted. ​

05 August, 2016

ICTY - Radovan Karadžić and Slobodan Milošević

In March 2016, the International Tribunal for the Former Yugoslavia (ICTY) gave judgment in the case of Radovan Karadžić, former President of Republika Srpska (RS) - see the Tribunal's judgment [pdf 2615 pages], this Information Sheet and the earlier post of 24th March

The Tribunal's Press Release of 24th March states:  "Trial Chamber III of the International Criminal Tribunal for the former Yugoslavia (ICTY) today convicted Radovan Karadžić, former President of Republika Srpska (RS) and Supreme Commander of its armed forces, of genocide, crimes against humanity and violations of the laws or customs of war committed by Serb forces during the armed conflict in Bosnia and Herzegovina (BiH), from 1992 until 1995. He was sentenced to 40 years’ imprisonment.

Karadžić was convicted of genocide in the area of Srebrenica in 1995, of persecution, extermination, murder, deportation, inhumane acts (forcible transfer), terror, unlawful attacks on civilians and hostage-taking. He was acquitted of the charge of genocide in other municipalities in BiH in 1992."

Karadžić has lodged an appeal - see here

The judgment in Karadžić is analysed in this article by Andy Wilcoxson and it highlights aspects of the Tribunal's judgment concerning Slobodan Milošević.

13 July, 2016

Permanent Court of Arbitration ~ South China Sea case

Dating from 1899, the Permanent Court of Arbitration (PCA) is an inter-governmental organisation of 121 member States.

The PCA has delivered its award in the South China Sea case of Republic of the Phillipines v The People's Republic of China.

The Press Release (11 pages pdf) notes:

"This arbitration concerned  the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were
alleged by the Philippines to violate the Convention

In light of limitations on compulsory dispute settlement under the Convention, the Tribunal has emphasized that it does not rule on any question of sovereignty over land territory and does not delimit any boundary between the Parties."

The actual award may be read here - 501 pages pdf. 

See also Hague Justice Portal

07 July, 2016

Iraq Inquiry report (6th July 2016)

The Iraq Inquiry report was issued today (6th July).  The report has an Executive Summary and 12 Volumes.  The Inquiry Chairman - Sir John Chilcot - made this statement immediately prior to the publication of the report.

The Inquiry did not express a view on whether military action was legal.  Sir John noted that this could only be resolved by a properly constituted and internationally recognised court but the inquiry did conclude that "the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory."

Here is a link to Volume 5 of the report where the legal advice is considered - Advice on the legal basis for military action, November 2002 to March 2003


Statement from the Office of Tony Blair - 6th July 2016

Blair's statement at press conference - 6th July 2016

Prime Minister's statement to the House of Commons - 6th July 2016

Elizabeth Wilmshurst - The Guardian 7th July - We ignored the rule of law: the result was Iraq

24 April, 2016

House of Commons - Daesh and Genocide

It has taken a long to come but on 20th April the House of Commons resolved by 278 votes to zero that:

"That this House believes that Christians, Yazidis, and other ethnic and religious minorities in Iraq and Syria are suffering genocide at the hands of Daesh; and calls on the Government to make an immediate referral to the UN Security Council with a view to conferring jurisdiction upon the International Criminal Court so that perpetrators can be brought to justice."

In February, the European Parliament passed a similar resolution.

The British government,