Serbia and Montenegro off the hook. Sort of.

The headlines I read about the judgment announced today by the International Court of Justice all read something like "Court clears Serbia of genocide." After looking at this decision, and readings some commentary, I don't think it's quite that simple.

First, coming in at 351 pages (really half of that, as it's in both french and english), there's probably something to cheer and jeer at in here for everyone, just statistically speaking. I'm not going to lie to you, I haven't read this entire thing.

But, it does seem like a legally significant decision nonetheless (even if it doesn't really do much, see below, much to the chagrin of many a Bosnian). The Court does find that a state can be held liable for genocide itself, which is a bit surprising at first, given that it is traditionally seen as a criminal offense. While the treaty obligations only involve preventing and punishing those who attempt or commit genocide (more traditional State functions), the Court actually went a bit further and stated that a State could itself be held liable for genocide under the Genocide Convention. Which is intuitive, but not really stated explicitly in the treaty. State responsibility could likely be easily established via customary int'l law or an obligation erga omnes, but the Court is somewhat confined to the four corners of the treaty because it only has jurisdiction under Article IX of the Genocide Convention. It also finds that criminal convictions are not a necessary prerequisite for a finding of state responsibility.

The Court declines to attach state liability to Serbia for genocide, stating that there was a lack of sufficient evidence to prove the specific intent necessary under the Convention. I think this is kind of odd. How does an entire State have "specific intent" The Court looks to the individual criminal defendants charged in the ICTY, but how many findings of specific intent would be necessary to have state liability attach?

BUT, the Court did find that Serbia was in violation of the treaty by not preventing the genocide and by not fully cooperating with ICTY. But, there was no nexus with the eventual massacre at Srebrenica, so the Court found financial compensation not to be the most appropriate form of reparation.

What were the eventual remedies? The declaration (i.e., this judgment) that Serbia had violated its treaty obligations (aka "satisfaction"), an order that Serbia has an obligation to turn over suspected criminals to the ICTY, and noted that "direction to provide assurances and guarantees of non-repetition, would be appropriate."

So basically, after all this, Serbia and Montenegro has to say "sorry" and promise that it won't do this again. Wow. Not very satisfying. But, as many have said, it might be best to lay this to rest rather than stir up any more animosity in the region.

The persistence of...uh...whatever that thing is..

Well, it happened. The number next to "Age:" on my profile page just increased by one. It was inevitable. Really, it was. I mean, I know I say that a lot, as in "I was so drunk, it was inevitable that I fell down the stairs" or "that shirt was so incredibly ugly, it was inevitable that I would make fun of the guy wearing it." But this time I really mean it. There was nothing I could do to stop it. Well one thing I guess, but that would make this post awfully depressing and I don't intend to go that far to avoid the..uh..inevitable.

So instead I will list some of the people who share my birthday. Let me know if you see a theme.

W.H Auden
Anais Nin
William ("Billy") Baldwin
Kelsey Grammer
Jennifer Love Hewitt
Nina Simone
Roberto Gomez Bolaños

NYC: Cool and Yet Frigid

I love New York City. I love the hipsters. I love the people from Brooklyn who are really from Brooklyn. I love the art, and I love the "art." I love how there are people everywhere constantly. I love the smells and I love the flavors, and I love how you never actually know what's going to happen to you on any given day. Maybe it's because I don't actually live there that I am so fond of it all. I also miss my girlfriend who I visited for four days.

But holy crap was it cold!!!

Federal Courts lack jurisdiction to hear (pending) habeas petitions of Gitmo detainees

To those of us that think the Bush Administration is shameful in trying to detain foreign nationals indefinitely and (arguably) in violation of international law in a place specifically chosen so that federal jurisdiction would be a tricky issue, a blow was delivered today by the D.C. Court of Appeals. In today's 2-1 decision, the panel held that 1) the Military Commission Act stripped federal courts of jurisdiction over habeas petitions, and that there is no Suspension Clause violation as the right of habeas does not apply to aliens outside the United States (i.e., there are no constitutional problems with the MCA).

I agree with the first part of the decision that Congress was unusually clear and intended to have the MCA apply to pending habeas petitions. The detainees arguments might have provided an escape route for a panel that was looking for a way to rule in their favor, but it was quite a stretch.

I think the bigger question here though is whether Congress can strip federal courts of habeas jurisdiction. Here, I disagree with the D.C. Circuit. While the Constitution might not extend to aliens outside the territorial United States, it should apply to aliens involuntarily detained within the United States. Saying that Guantanamo Bay is not within the sovereign territory of the United States is absurd (as was recognized in Rasul). And allowing the executive to evade federal jurisdiction through selective placement of prisoners is a horrific precedent.

I simply don't understand this footnote 11 in the majority opinion:

The text of the Suspension Clause also does not lend itself freely to extraterritorial application. The Clause permits suspension of the writ only in cases of “Rebellion or Invasion,” neither of which is applicable to foreign military conflicts.

So the logical consequence of that observation is that Congress cannot suspend the writ absent "Rebellion or Invasion." How does this support the proposition that Congress can suspend the writ.

The dissent makes an interesting distinction between individual rights contained in the bill of rights as compared to the constraints on Congressional Power contained in the Constitution, which reminds me of international treaty law (which treaties convey individually enforceable rights and remedies and which don't). The general presumption against the extra-territorial application of US (Constitutional as well statutory I would posit) law is to respect sovereign nations. Applying our laws on foreign soil could lead to some tricky foreign policy issues (and it often does). But here, the US runs a prison on land it leases from Cuba indefinitely. For all intensive purposes, it is U.S. land. There are no Cuban authorities involved here, no tricky questions of foreign criminal law. These are people in US custody on U.S.-leased land, they should be entitled to the protection of US law and US courts.

Great posts at
National Security Advisors
Balkanization
Opinio Juris

What Does Parody Taste Like?

New ice cream named for Stephen Colbert
at yahoonews

Ok, so if he's actually a liberal who pretends to be a neo-conservative to illustrate the latter's absurdity and hypocripsy through parody, what will his ice cream taste like? Will it really taste like fudge covered waffle cone pieces and caramel swirl? Or will it merely say that it tastes like fudge covered waffle cone pieces and caramel swirl and then show you why that combination is actually a really repugnant flavor, make you question everything you've ever known about fudge covered waffle cone pieces and caramel swirl and ice cream and general, and think about if it's really even all that different from Dreyer's Dreamery Coney Island Waffle Cone, so that you only come to the conclusion that, after all, maybe you just like sprinkles and chocolate syrup.

Come si dice "hooligan" in Italiano?

After a policeman was killed during a riot last week after a football match in Catania, the Italian government stepped in and ordered that several games had to be played behind closed doors over the weekend, and that all stadiums had to implement certain safety features. After putting in place such safety measures, most stadiums are open again to fans, but at least one (Catania) will be closed for the remainder of the season.

I have been to rowdy college (American) football games, but I don't think anything can compare with the pure animosity that can exist between clubs or national sides. It's not just Italy. Paris accused Marseille of poisoning their locker room, not too long ago, and Britain is notorious. What is it about the beautiful game that brings out such violence at football matches? Granted, Raiders fans are nuts, but it seems when a national sport is involved, there seems to be a role reversal; Europeans seem to be the more violent ones (although the fans don't usually have guns, thank god). At least they limit it to sports. Two people were shot and killed near my neighborhood over the weekend. Here's a fun quote. Notice what the fans throw at him. That takes planning.

Ascoli keeper Gianluca Pagliuca said he would have preferred it if his team's match at Sampdoria had been played behind closed doors.

The former Italy international, who spent eight seasons at Sampdoria before spells at Bologna and Inter, was continually abused by the home fans.

"A Sunday of silence? Not for me. I was insulted for 45 minutes from the Sampdoria fans behind the goal," he complained.

"Whenever I come back here, they have it in for me. Right now, when everybody is talking about violence, I feel even more depressed after being abused for 45 minutes.

"I don't know why they do it. In 1999, in an Italian Cup match, they even threw bathroom taps at me, just because I was playing for Bologna, a team they hate."

Whole article found at espnstar.com

How do I get on these email lists?

Although I do have a confession to make. When I was a kid, I asked my Dad if I could get a My Little Pony. And he told me "no." I didn't understand at the time, I think western movies threw me off (men with guns having special relationship with horse, that was ok). Looking back...yeah, that must have been pretty weird for him. Wow, I can't believe I just admitted that.

Does Anyone Else Find This Disturbing?

(Found on Fuggers)

I don't know about you guys, but I kind of grew up with Full House. I mean, when I didn't have band practice after school, I would totally watch it. What happened? I'm not going to pretend to know which is which, but one looks like she just walked out of an audition for the movie "Curella DeVille: the Beginning" and the other looks like a butch German WWI bomber pilot; one that definitely wont put up with any of your shit. Now that I think about it, didn't one of these two do a stint in rehab like our good mayor for something awhile back? Oh yeah....

Rehab Meetings New Place "To Be Seen"

Newsom has now announced that he is seeking alcohol counselling from Mimi Silbert, head of San Francisco's famous Delancey Street Foundation. Sort of.

While Jaye referred to Newsom's treatment for alcohol dependency as counseling, Silbert disagreed with the characterization. "I don't know if I would use the word 'counseling,' but I will be helping the mayor," she said. Silbert said Newsom had contacted her Saturday about getting help.

From SFgate.com

So let's see, that's Gavin (plus the lady in question was in rehab, which is why she came clean), Lindsay, Mel, Kramer, Miss USA...whether by court order or not, it seems like everyone needs some help these days for doing stupid shit.

Blimey that's a big boat!

I actually didn't know this was happening today, but apparently the Queen Mary 2 became the largest vessel to enter San Francisco Bay. Wow..that boat is HUGE!

(pics from SfGate.com)

In other local news, Mayor Newsom Got Some

AIDE QUITS AS NEWSOM'S AFFAIR WITH HIS WIFE IS REVEALED
(from SFgate)Looks like our mayor pulled a" pseudo-Clinton" or a "full-Berlusconi," or what ex-French President François Mitterrand called "Tuesday"

But he was going through a nasty divorce, so I can understand why he might not have a real healthy attitude toward marriage, or respect it as an institution. His ex-wife remarried in early 2006 and was expecting a child...that had to be tough. I mean, look at what he did to his hair a while ago.

Things were definitely not going well. For those of you who might say, "Wait, I like his hair better that way, it looks like yours when you were in high school, Default Attorney!," I agree with you, but such a drastic change was a sign that something was not right. Either he couldn't bear to go out in public to buy his drum of hair gel, which suggests depression, or he wanted a big change, to be a New Newsom, to distance himself from the...uh...old Newsom. Either way, it is Gavin's hair gel that holds this city together, and its absence was the cause for some concern around here.

Gavin, if you read this, I support you. I didn't not vote for you because I thought you were a saint. You've done a good job in office, other than the whole public transportation mess we have, and I will not hold this affair(e) against you. I don't condone it, but we all make mistakes. I mean...you were single...she was pretty and probably high out of her mind.

Good luck Mr. Mayor.

S.F. Thinks Terrorism is Cool

The guerrilla marketing tactics employed by TBS and the Aqua Teen Hunger Force met with less of a police response here than elsewhere, where two men have been arrested and charged. The Clement Street art gallery and design store owner who found it on his roof left it there because he "thought it was cool."

Apparently the guys in Boston put at the foot of several bridges though, so I can see why that would set off a few more alarms.

That show is pretty bat-shit insane anyway.