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Student Commentaries

Saving an Ancient Community

I.        Introduction

The Christian community in Iraq has survived conquests by Arabs, Huns, and Turks over the two millennia since the birth of Christianity. However, the latest danger to Iraq’s Christians, who include Assyrians, Chaldeans, and Catholics, poses the largest threat that this community has faced yet. In post-Saddam Iraq, a lethal combination of a Western “other” Christian identity, Islamic extremism, and a depressed economy has taken an enormous toll on Christians in Iraq. Their communities all over the country have been devastated by violence against men, women, children, and community symbols like priests, bishops, and churches. Because they only numbered about 1.5 million before the fall of Saddam Hussein, these attempts to terrorize and scare away Christians threaten the very existence of Christianity in Iraq.

In response to violence inside Iraq, many Christians have fled the country or become internally displaced, fleeing to traditionally Christian areas in Northern Iraq. Though their situations outside Iraq as registered or unregistered refugees may be difficult, those who are a part of the Christian Iraqi diaspora are hesitant to return to their homeland due to the systematic violence and discrimination they have faced and may face again. Can international action or internal, government programs do anything to save Christianity in Iraq?

To answer this question, I will address a number of issues. First, I will explore the underlying causes of the historical violence against Christians, taking a deeper look at the construction of the Christian identity as the Western “other.” Second, I will consider the current situation facing Iraqi Christian refugees and internally displaced peoples. Finally, I will propose remedies that seek to encourage Christian Iraqis to either remain in or return to Iraq. These remedies include 1) deconstructing Christians’ “other” identity through constitutional changes and civil society initiatives, 2) creating a semi-autonomous “safe haven” for Christians inside Iraq, and 3) encouraging international economic assistance to revive devastated Christian communities. Though my suggestions are to promote a continuing Christian presence in Iraq, they are by no means a definitive solution. There is still time to save Christianity in Iraq, but it remains uncertain whether the community will ever fully recover from the devastation of the last ten years.

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Article Responses

One Step Forward, Two Steps Back?

I.        Introduction

Kevin Heller’s essay A Sentenced-Based Theory of Complementarity marks a significant contribution to the growing scholarship on the International Criminal Court (ICC) and complementarity.[1] His proposed re-thinking of the complementarity regime is original and helpful in highlighting existing policy dilemmas of ICC practice. A “sentence-based” heuristic is appealing in its clarity and its objective to facilitate effective repression. Nevertheless, like Darryl Robinson,[2] I share some hesitation regarding the central claim of this theory. In my view, the argument that the ICC should focus “exclusively on sentencing” when determining whether “ordinary” crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability.

II.     Underlying Assumptions

Heller’s case for a deviation from existing approaches relies on four basic premises: (i) the claim that the ICC admissibility test[3] creates undue pressure to charge international crimes under an international label, (ii) the alleged disadvantages of domestic prosecution of international crimes, (iii) the advantages of a “sentencing” heuristic over threat-based compliance, and (iv) the assumption that “higher” sentences might create “better” justice.[4] All four key assumptions merit further critical reflection.


[1] See Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L.J. 85 (2012).

[2] See generally Darryl Robinson, Three Theories of Complementarity: Is it About the Charge, the Sentence, or the Process?, 53 Harv. Int’l L. J. Online 165 (2012).

[3] For a survey, see Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (2008); 1 The International Criminal Court and Complementarity: From Theory to Practice (Carsten Stahn & Mohamed M. El Zeidy eds., 2011); Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law (2008); Darryl Robinson, The Mysterious Mysteriousness of Complementarity, 21 Crim. L.F. 67 (2010).

[4] See Heller, supra note 1, at 87–88.

Article Responses

Three Theories of Complementarity

The principle of complementarity, which governs the International Criminal Court (ICC), will inevitably require some difficult determinations about whether a national proceeding warrants deference. One may discern in the literature three major theories about what the ICC should scrutinize when it assesses a national proceeding: the nature of the charges laid, the severity of the sentence imposed, or the quality of the process adopted. These three approaches are not necessarily mutually exclusive; they can be combined in different ways and with different emphases to create plausible schemas.

Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion.[1] He advances an important and convincing critique of approaches that would focus on the domestic or international nature of the charges or on the relative gravity of the charges.[2] He proposes to replace such approaches with one focused on the sentence.[3] While Professor Heller may be successful in showing that a sentence-based approach is superior to a charge-based approach, I will argue that a sentence-based approach also raises some serious difficulties that have not been addressed. I will therefore suggest a third option, a process-based approach. I believe that a process-based approach is not only the best fit with the Rome Statute (the positive law); it is also the most elegant theory.[4] Under a process-based approach, the Court can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process.

While I have reservations about the more radical proposal to adopt a new approach to complementarity that focuses exclusively or even primarily on sentence severity, I believe that A Sentence-Based Theory of Complementarity offers two important insights. The first demonstrates the very limited role that should be accorded to “charges.”[5] The second demonstrates the potentially important role that can, in some circumstances, be accorded to “sentences.”[6] I would absorb these insights into a process-based theory.

Heller also raises concerns about the “same conduct” test adopted by the ICC.[7] Similar concerns have been raised in other recent thoughtful scholarship,[8] so it is valuable to inspect the concerns here. While I agree that some flexibility is needed, I hope to show that the problem is actually much narrower than is often perceived in the literature. The Rome Statute already provides solutions to the scenario where a state wishes to prosecute a person for a different crime. These solutions include a consultation mechanism to prioritize cases as well as the “interests of justice” test. In my view, stretching the admissibility regime to cover such scenarios is not only unnecessary but would generate incoherencies. Thus, while I partly agree with the concerns raised by Heller and others, I will argue for a much narrower solution.

All references to “admissibility” in this comment concern the complementarity aspects of the Rome Statute—Article 17(1)(a)–(c))—and not the distinct issue of “gravity” (Article 17(1)(d)).

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[1] Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L.J. 85 (2012).

[2] Id. at 88–107.

[3] Id. at 107–30.

[4] Rome Statute of the International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, 2187 U.N.T.S. 90 [hereinafter Rome Statute].

[5] See generally Heller, supra note 1.

[6] Id.

[7] Id. at 107–30.

[8] See infra note 53.

Article Responses

A Response to David Landau

David Landau’s article, The Reality of Social Rights Enforcement,[1] is an important contribution to a growing literature on the judicial role in enforcing social and economic rights. He joins others in noting that debate has ended over whether constitutions should include such rights and whether, if included, those rights should be judicially enforceable.[2] Not “whether,” but “how” is the question now on the table among serious scholars and judges.

Landau’s article presents the “how” question in a new light. Drawing together numerous strands in the literature, he helpfully identifies four remedial forms—individual actions primarily seeking individual-level affirmative relief,[3] negative injunctions, weak-form review, and structural injunctions—and assesses their likely effects on the distribution of the material goods that social and economic rights are designed to secure.[4] Proponents of such rights seek them primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity.

As Landau observes, effective implementation of social and economic rights for the least advantaged faces formidable obstacles.[5] Many of the world’s poorest nations have severely limited internal economic resources.[6] Political obstacles are substantial even when resources are available or could be made available through tax increases. Those already advantaged typically have a favored position in national politics, allowing them to block redistributive initiatives (whether from the legislature or from the courts). The least advantaged may be quite numerous, but they face resource constraints in mobilizing politically or in litigation. The prospects for achieving substantial improvements in the material conditions of the least advantaged through political or judicial action are inevitably small.[7]

One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights. Yet, as Landau persuasively argues, individual actions are likely to provide social and economic rights primarily for those in the middle classes, not for the least advantaged.[8] The reason is that those in the middle classes are more likely than the least advantaged to have the ability to mobilize the legal system in an individual action. They have the requisite knowledge and have access to legal assistance to bring these actions. In short, they have a better “support structure” for securing rights, to use political scientist Charles Epp’s term.[9] Landau acknowledges that nongovernmental organizations and similar agencies, some associated with the state itself, can provide education about legal rights and legal assistance to the least advantaged.[10]However, the resources devoted to such efforts are unlikely to overcome the structural advantages the middle classes have in individual actions.

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[1] David Landau, The Reality of Social Rights Enforcement, 53 Harv. Int’l L.J. 189 (2012).

[2] The United States is an exception for two perhaps related reasons. First, the U.S. Constitution is an old one, written before the political and ideological developments that fueled the inclusion of social and economic rights (and, now, cultural and environmental rights) in more recently written ones. Its text provides fewer resources for developing constitutional arguments for judicially enforceable social and economic rights. “Fewer,” though, does not mean “none,” and Cass Sunstein has suggested that only Richard Nixon’s narrow victory over Hubert Humphrey in 1968 prevented the Supreme Court from crafting a substantial jurisprudence of social and economic rights. Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever 149–72 (2004). Second, the general weakness of the social democratic tradition in the United States, which is both political and ideological, has meant that advocacy of judicially enforceable social and economic rights has been limited.

[3] I assume that individual damage actions would have characteristics similar to those Landau associated with individual-level affirmative relief.

[4] Landau, supra note 1, at 201.

[5] See generally Landau, supra note 1.

[6] For that reason, typical formulations of social and economic rights refer to their progressive realization within available resources.

[7] I note that fairly strict market-oriented policies might be the best ones to achieve the progressive realization of social and economic rights, at least on the level of political and economic theory. Advocates for social and economic rights usually reject that theoretical case. Notably, even that case might commend some judicial intervention in support of market-oriented policies—of the sort typically associated in the United States with Lochner v. New York, 198 U.S. 45 (1905).

[8] Landau, supra note 1, at 202–29.

[9] Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective ch. 3 (1998).

[10] See Landau, supra note 1, at 227.

Op-Ed

A Strategy for Syria Under International Law

The iron rule of the Asad dynasty over Syria’s people is forty-two years old. It began in 1970 when then Defense Minister Hafez al-Asad carried out a bloody coup against his own party colleagues and appointed himself president. Hafez, the family patriarch and dictator for life, killed or jailed companions he perceived as his rivals, supported violent extremism whenever he found it useful, and plundered Syria’s riches while arresting and torturing any dissenter. Over two generations of Asads, a brutal government in Damascus has been the main Mideast ally of an increasingly belligerent Iran. Bashar al-Asad, the son, has acted as the chief facilitator for Sunni extremist killers in Iraq over the past ten years. In Lebanon, Asad’s father and son have wrought havoc since 1975, killing in turn Palestinians, Muslim Lebanese, Christian Lebanese, and whoever dared help the return of stability to a country torn asunder. They assassinated the most prominent Lebanese leaders who stood in their way, including Kamal Jumblat in 1977, Bashir Gemayel in 1982, and in all likelihood Rafik Hariri in 2005. Operatives of self-proclaimed “Loyal to Asad’s Syria” Hizbullah are now under indictment before the Special Tribunal of Lebanon for Hariri’s murder, and scores of journalists and politicians along with hundreds of other innocent people have been assassinated, “disappeared,” or randomly killed.

Most tragically, the Asads never hesitated to commit mass murder against the Syrians. Hama’s historic center was leveled to the ground in 1982, and the relentless siege, bombardment, and mass killing continues to this day a pattern of ruthless governance across the country, with Homs the latest victim.

Both the future of the Middle East and the success of the formidable nonviolent mass movement in Tunisia, Egypt, Bahrain, and Yemen depend on what happens next in Damascus. If the dictatorship survives, if its main pillars are not brought to justice on the way to a democratic transition, Asad’s continued rule will doom domestic and international peace in the region and beyond. Why? Because the nonviolent movement will find it hard to recover from this blow.  Asad’s regime itself will have its own noxious effect on peace. Yet more deeply, more world-historically, it will be harder—much harder—to argue to any brave young man or woman cleaving to nonviolence that this path, although potentially bloody in sacrifice, is the right form of resistance to tyranny.

Our joint reflection seeks to bring recognition to the unparalleled bravery and sustained nonviolent resistance of Syria’s revolution and to provide concrete political means to help end the forty-two year long reign of death and fear. Drawing on the appropriate tools of international law and the strength of Syrian revolution, the ends and the means of the strategy proposed must remain worthy of the sacrifice of Syria’s thousands of nonviolent demonstrators.

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Student Features

Drafting a Joint Proposal for a U.N. Security Council Resolution on Israel-Palestine with Alan Dershowitz

On Wednesday, September 14, I happened to sit for lunch in the faculty common room of Harvard Law School (HLS) next to Professor Alan Dershowitz, whom I had not met before. Next to him was sitting Professor Robert Mnookin, with whom I had had previous discussions about the International Criminal Court (ICC), in particular whether the recognition of the State of Palestine by the United Nations General Assembly (UNGA) would allow the Palestinian Authority (PA) to secure the ICC’s jurisdiction over potential crimes committed in the Palestinian territories.

Both Israeli Prime Minister Netanyahu and the PA President Abbas were scheduled to speak before the General Assembly the following week. The conversation at lunch drifted naturally from ICC jurisdiction to the Palestinian statehood bid, which was scheduled for discussion in my Public International Law (PIL) class the following week as a live case for testing the criteria of government and state recognition. The discussion was heating up politically and in the press, with the announcement that the United States would veto it at the U.N. Security Council (UNSC), leaving a realm of uncertainty over whether the PA would seek full U.N. membership through an application to the UNSC, or recognition as a State from the UNGA.

As the discussion with Bob Mnookin started, I realized that my immediate neighbor was the famous (and in Arab and Palestinian circles, infamous) lawyer and professor who took on, and won, difficult and controversial First Amendment and criminal cases, and who is considered the most articulate defender of Israel in the United States. He told us he was seeing the Israeli Prime Minister for dinner on Friday, September 16, which made the conversation even more concrete. An immediate ice-breaking moment resulted from introducing myself as the lawyer of the Sabra and Shatila victims in their case against Ariel Sharon and others in Belgium. Alan Dershowitz’s reaction was nuanced, and he explained in a later conversation that he was on record saying that the 1982–83 Kahan Commission had not gone far enough because it did not contain a criminal prosecution component. In a further email exchange for the present article on December 6, he clarified his position as follows . . . .

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