The University of Chicago Law School Faculty Blog

Sudan: Does International Criminal Law Help or Hurt?

Last week the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Al-Bashir, confirming charges of war crimes and crimes against humanity but rejecting the prosecutor’s charge of genocide.  The immediate response has been for Al-Bashir to dig in, expelling 13 international aid groups as “spies” and severely worsening the humanitarian situation. This raises the issue of whether or not international criminal law deters or exacerbates human rights violations.  Professors Ku and Nzelibe argued for the latter in an article a couple years ago; the vast majority of international criminal law scholars seem to believe the former.

What is clear is that this is a make-or-break decision for the ICC, as I explore recently in an article our Chicago Journal of International Law. Some optimists believe that Al-Bashir will be turned over by his own countrymen.  But the more likely outcome, given the negative reaction to the indictment by the African Union, China and much of the Arab World, is that Al-Bashir will continue to be able to defy the Court. With a Chinese veto, the Security Council is unlikely to approve new sanctions or to take collective steps for Al-Bashir’s arrest.  This puts the West in the position of ratcheting up costly sanctions on the Sudan (unlikely to be effective without Security Council support) or else appearing impotent in the face of a severely deteriorating humanitarian situation.  In the short run, then, I am afraid Ku and Nzelibe seem to have the better argument.

Ginsburg and New Website Connect Constitutional Scholars and Drafters

The U.S. Institute of Peace and the Comparative Constitutions Project (CCP) have announced the launch of constitutionmaking.org, a site intended to provide people engaged in constitutional drafting access to essential materials, insights, and expertise.

Constitutionmaking.org was created by a team of scholars and drafters—including the University of Chicago Law School's Tom Ginsburg—with the guiding principle that those writing constitutions should have access to (1) a variety of options for constitutional design and (2) analysis of the consequences of design choices.  To this end, the site features three basic components:

• OPTION REPORTS.  This section includes a series of reports on a wide-ranging set of topics that are central to historical and contemporary constitutions.  These reports provide sample provisions and information on trends and patterns in the use of different constitutional provisions.  The data and analysis for these reports come from an original set of data on the content of constitutions that the researchers have been collecting since 2005.
• CONSTITUTONAL REPOSITORY.  The site also includes a growing repository of constitutional texts.  The researchers have identified the major constitutional changes for each independent state since 1789 and have collected 95% of the documents associated with these amendments and replacements.  Some of these documents are under copyright, but the repository will include all publicly available materials. 
• FORUM.  A third component of constitutionmaking.org features regular commentary from scholars on issues and events surrounding constitutional design. The goal is the same as that for constitutionmaking.org more generally: to connect scholars and drafters.  The forum endeavors to bring to light two sorts of information: (1) reports of constitutional deliberation (and challenges therein) from various corners of the world, and (2) reports of noteworthy research on the subject. The ideas are serious but the tone is direct and lively.  Posts have covered recent constitutional activity in Bolivia, Venezuela, Thailand, and Burma.

Hugo Chavez and the Rule of Law

Hugo Chavez goes to the polls in his second bid to amend the Venezuelan Constitution to eliminate presidential term limits. Should he lose, he has vowed to leave office when his current term ends in 2012; should he win, he hopes to rule for life. Chavez’s success seems likely because he has learned to manipulate the rule of law in his favor.

Chavez’ power grab, pursued through perfectly legal channels, exposes the Achilles’ heel of the rule of law: so long as you abide by its principles, you can do just about anything, including changing the rules to extend your control. The rule of law, as conventionally defined, requires that laws be clear, open, and equally applied to individuals and government alike. In recent years, it has become the subject of overlapping international consensus, such that dictatorships and democracies from Beijing to Burundi proclaim its virtues. The World Bank and other international donors have poured billions of dollars into improving the rule of law around the world. Everyone likes the principle because it promises procedural order and straightforward implementation of the rules, whatever they might be.

Thailand's Court resolves crisis--for now

I had just cancelled my flight to Bangkok, where I was due to attend a conference this coming weekend, when I learned that the Constitutional Court had issued a long-awaited decision disbanding the ruling party (the PPP). The decision had been widely anticipated, given the apparent violations of electoral law by the PPP. It assumed greater importance, however, because of the crisis perpetuated by anti-government protestors. With tacit support from the police, military and monarchy, they had occupied Bangkok’s airports, stranding hundreds of thousands of tourists and causing serious economic pain (not to mention the cancellation of my conference!)

There are two points of general interest illustrated by this affair.  First, like many other countries, Thailand has experienced “judicialization” with the courts resolving major political issues. In a forthcoming article available here, I argue that Thailand’s constitutional order is just an extreme case of a general trend toward “post-political” constitutions, reflecting a distrust of politics and a faith that technocratic institutions, like courts, counter-corruption commissions and ombudsmen, can somehow resolve problems in a neutral manner. 

Second, courts seem to respond to signals of public opinion in such circumstances. Had the protests been put down or been less enduring, the Court might have sided with the PPP and found the violations of law de minimis. Some years ago, the Court’s predecessor had essentially taken this approach with regard to the party associated with now-discredited premier Thaksin Shinawatra. This time, the Thai Constitutional Court said it had “no choice” but its decision can also be read as furthering its own institutional interest in remaining relevant in the light of great public pressure. The Court’s prestige has arguably been enhanced by the whole affair. 

As a normative matter, this state of affairs leaves much to be desired. Don’t like the government? Simply organize a large scale protest, bring the government to a halt, and then accuse it of not providing leadership. If the protest is big enough, the courts will have no choice to side with you. The key, of course, is to have enough support that law enforcement takes your side. But technocratic institutions like courts, the military or police, are no substitute for political institutions. I suspect this is not the final round of Thailand’s political crisis, as the government party will emerge again in some reconstituted form.

Kabul Report

I had not been to Kabul in five years, and the city looks more or less unchanged. There seem to be fewer women in burqas, and a few more cars. There are quite a few more private shops on the streets, especially beauty parlors and barber shops. But things appear basically the same. 

The mood, on the other hand, is not. When I was here in early 2003, there was a halting sense of hope, but little has materialized from the Karzai government and people are overwhelmingly pessimistic. Streets are still potholed. Jobs are scarce. Prices are rising. Things are moving backward steadily, and the Taliban have attacked places as close as 30 miles away. Literally no one has a good thing to say about Karzai (the "mayor of Kabul") and the government.  Movement is restricted and armed guards protect any place frequented by foreigners or Afghans who can afford the protection.

Why China Allows its Citizens to Sue the Government

Earlier this year I gave a talk to the students, available on the podcast section of the website, on Why China Allows its Citizens sue the Government. The talk focused on the growth of administrative litigation under the Administrative Litigation Law, in force since the early 1990s , under which citizens routinely sue and win cases against the Chinese government. To a lesser degree I talked about quasi-constitutional litigation (so-called because the Chinese Constitution is not formally justiciable) under which lawyers and judges invoke the Chinese Constitution in support of other legal claims that have a public law character.  Why would a dictatorship like China tolerate, and even encourage, such challenges to state action?