International Territorial Administration and the Emerging Obligation to Prosecute
Clanton, Sarah M., Texas International Law Journal
Sarah M. Clanton's article explores the interplay between international territorial administration and international criminal practice. Case studies selected by the author involve the territorial administrations and international courts arising out of conflicts in the former Yugoslavia, Kosovo, East Timor, Sierra Leone, and Iraq. The article analyzes the mandates of the United Nations and other international organizations that gave rise to the administrations and the judicial processes and tracks developments in the prosecution of persons accused of committing serious crimes. The author contends that the former entitlement to prosecute is being replaced as a result of these events with an emerging obligation to prosecute in limited circumstances. The practical and normative consequences of the shift from elective prosecution and amnesty to an obligation to prosecute are considered, and the author concludes that the emerging trend is advancing the goals of criminal justice while trying to meet the special needs of post-conflict nations.
During the last decade, international organizations including the United Nations and the European Union have engaged in various "missions" and "transitional administrations" of territory, most famously during the dissolution of the former Yugoslavia. The conflict in the former Yugoslavia led to intervention by three separate international organizations: the U.N. and the activities of the U.N. Protection Force (UNPROFOR) and later the U.N. Mission in Kosovo (UNMIK), the EU and the activities of the EU Administration of Mostar (EUAM), and the installation of the Office of the High Representative (OHR) for Bosnia and Herzegovina following the Dayton Peace Agreement.1 Ralph Wilde has suggested that these instances of international organizations administering territory are examples of a distinct policy institution, called international territorial administration (ITA).2 It is the contention of this author that ITA has helped inspire the establishment of international courts to try those persons accused of serious crimes. The installation of these judicial bodies has facilitated an emerging obligation to prosecute.
In 1993, two years before the Dayton Peace Agreement, the U.N. security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), acting under Chapter VII of the U.N. Charter.3 The Security Council created the tribunal "for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia" after January 1, 1991.4 The Security Council hoped that the creation of the tribunal would curb serious crimes including widespread rape and ethnic cleansing. Resolution 827 includes provisions aiming to bring those responsible for these offenses to justice, and restoring and maintaining peace.5 The resolution states that all countries shall cooperate fully with the tribunal.6 In 2006, the Office of the Prosecutor expects to have thirty-three accused on trial.7
The ICTY does not represent the first effort to create an international criminal tribunal. After World War II, the Allies established two ad hoc tribunals, the International Military Tribunal at Nuremberg (Nuremberg Tribunal) and the International Military Tribunal for the Far East (Tokyo Tribunal).8 These courts tried major German and Japanese war criminals, while other Allied tribunals and national courts tried thousands of lesser war criminals.9 The tribunals derived their mandates and legitimacy from the Allied governments. The development of tribunals designed to bring war criminals to trial after World War II represented a first step forward for international law, particularly regarding legal notions of individual culpability and superior responsibility.
The establishment of the ICTY was the first instance in the post-cold war era in which the international community, via the U.N. Security Council, authorized an ad hoc international judicial body to prosecute individuals for serious crimes. The installation of the ICTY occurred before international territorial administration began in Bosnia and Herzegovina, and predated the conflict in Kosovo by six years.
In the years following ITA in the Balkans and the establishment of the ICTY, ITA has been employed in East Timor, Kosovo, Sierra Leone, and arguably in Iraq10. In each of these places, ITA has been performed concurrently with international or semi-international judicial proceedings. In East Timor and Sierra Leone, special hybrid courts have been established by the U.N. to try those indicted for human rights violations following the East Timorese referendum for independence from Indonesia11 and the decade long civil war between the Revolutionary United Front (RUF) and the government of Sierra Leone,12 respectively. Following the NATO bombing campaign in Serbia in 1999, the Security Council passed Resolution 1244, establishing UNMIK and decreeing full cooperation with the ICTY.13 The extent of unrest in Kosovo, due largely to the earlier persecution of Kosovar Albanians by the Serb minority and subsequent reprisals by the Kosovar Albanians, led to the introduction of international judges in local courts, forming hybrid tribunals.14 Finally, following Operation Iraqi Freedom, the Coalition Provisional Authority (CPA), temporarily ceded authority to the Iraqi Governing Council to enact the Statute of the Iraqi Special Tribunal (Special Tribunal) to try members of the Ba'athist regime accused of atrocities and war crimes.15
This Article will begin by explaining ITA and explore how one of its functions, laid out in mandates for the forces on the ground, has been to apprehend serious crimes suspects in Bosnia and Herzegovina, Kosovo, East Timor, Sierra Leone, and Iraq.16 This part of the Article is largely descriptive to provide the reader with information necessary to understand the relationships between these five case studies. I will also highlight developments in the task of apprehension, exploring how ITA is both suitable and unsuitable for apprehending war crimes suspects. This descriptive section supports my conclusion: In view of the fact that ITA has been utilized to apprehend war crimes suspects who are subsequently handed over to the specially created courts mentioned above to be tried for violations of international humanitarian and criminal law, I propose that ITA supports an emerging obligation to prosecute.
The careful reader may ask why I have characterized the obligation to prosecute as an emerging obligation, despite the fact that these ITA projects and the accompanying judicial bodies are not the first of their kind. It is appropriate because the post-World War II courts represented the first realized efforts in international courts, and as such, cannot be viewed as part of a preexisting trend.17
While there is no general obligation to prosecute and there are still instances of amnesty, the exercise of ITA and subsequent international prosecution support an emerging practice, namely that states no longer have an entirely free hand in deciding how to proceed against those suspected of serious crimes. The ITA operations in the post-cold war era demonstrate that states are not issuing amnesties and establishing investigatory commissions18 without also establishing judicial bodies for prosecution. The final section of this Article will survey the implications of this obligation, both in practice and in principle.
IV. WHAT IS INTERNATIONAL TERRITORIAL ADMINISTRATION?
Before exploring the emerging obligation to prosecute, it is necessary to understand the concept of international territorial administration. In his forthcoming book, Ralph Wilde puts forward his theory on the administration of territory by international organizations. He classifies ITA as a policy institution because it is an established practice that operates in a common way on a purposive level.19 This means that each administration project involves the same activity and that these activities form a practice to achieve certain common ends.20 Wilde reviews the history of ITA, beginning with the projects of the League of Nations in the early 1920s and concluding with the administration of Iraq by the CPA in 2003-2004.21 This review supports his assertion that ITA is nothing new,22 but rather an established practice regarding both the actions taken by the administering organization and the policy goals in mind.
To support his finding that there is an established practice regarding the policies that are supported by ITA, he posits that contrary to previous scholarship,23 ITA has never occurred as part of the enjoyment of sovereignty in the sense of title by an international organization.24 Wilde notes that ITA is employed to redress two different policy problems: a sovereignty problem or a governance problem.25 A sovereignty problem concerns the presence or absence of local actors exercising control over territory, while a governance problem relates to the conduct of local actors while governing.26 Perhaps the easiest way to understand the distinction between these two purposes served by ITA is to identify a sovereignty problem as one concerned with the identity of the local actors, and to consider a governance problem as one created by the quality of governance exercised by the local actors.27 Wilde uses these two distinctions to categorize ITA projects from the League of Nations to the present day as responding to one or both of these problems.28
A final important characteristic of ITA is its intrusive nature. ITA is distinguishable from other forms of international action because it does not rely on the state itself to act.29 International scrutiny bodies, including judicial tribunals and all forms of sanctions regimes, are trying to pressure a state to change its behavior or impose a legal mandate to correct undesirable behavior.30 ITA directly takes over those functions that are not being adequately performed by local actors.31 Wilde concludes that since ITA is acting as the state, it functions in the same manner as the military component that usually accompanies it, for example the NATO-led KFOR forces in Kosovo.32 Based on this analysis, ITA is more effective at enforcement because it is not reliant on the state to act because it is operating as the state.33
V. ITA AND THE APPREHENSION OF WAR CRIMES SUSPECTS
Accepting ITA as a policy institution, I will now begin the first of five brief case studies where ITA has been accompanied by the establishment of a judicial body to adjudicate allegations of serious crimes.
A. Former Yugoslavia
The conflict in the former Yugoslavia, beginning in early 1992, included infamous human rights violations. In August 1992, the Security Council expressed grave alarm at the reports coming from the Balkans of widespread violations of international humanitarian law and attacks targeting civilians including ethnic cleansing.34 In 1993, acting on a recommendation by the Commission of Experts, the ICTY was established.35 Hostilities continued after the establishment of the tribunal, and in November 1995 representatives of Bosnia and Herzegovina, Croatia, and the Federal Republic of Yugoslavia (FRY) signed the Dayton Peace Agreement.36 The security Council endorsed the creation of the Office of the High Representative (OHR) for Bosnia and Herzegovina, a sui generis institution formed to implement the civilian components of the agreement.37 NATO troops were sent to Bosnia to enforce compliance with the military requirements of the agreement. This multinational contingent was named IFOR, for Implementation Force, (later Stabilization Force or SFOR) and given the authority to use military force, including to search for and arrest persons indicted by the tribunal.38
The question of whether there was an obligation to apprehend war crimes suspects has been considered by many commentators. Walter Gary Sharp has identified the sources of obligation to search for and arrest war criminals in customary international law and in international agreements.39 He suggests the following sources of obligation: The Four Geneva Conventions of 1949, the laws and customs of war, the Genocide Convention, U.N. General Assembly resolutions, and U.N. Security Council resolutions.40 In the case of the former Yugoslavia, the international community was further bound by Security Council Resolution 827, Article 29 of the International Tribunal Statute, Rule 56 of the Rules of Procedure and Evidence of the International Tribunal, Articles IX and X of Annex 1-A of the Dayton Peace Agreement, Article V 1.5 of Annex 1-A of the Dayton Peace Agreement, and Security Council Resolution 1031.41
Despite these sources of international legal obligation, NATO troops engaged in ITA did not arrest a single indictee between 1995 and July 1997.42 Official NATO policy was to arrest them if "encountered."43 This policy yielded unsatisfactory results, as the media reported indicted war criminals moving freely throughout their occupied hometowns,44 sometimes even continuing to hold public office.45
The reasons most often promulgated by NATO member nations for not actively pursuing war crimes suspects include the fear of casualties and inciting the local population.46 In 1993, eighteen American soldiers died horrific deaths televised around the world in the failed attempt to capture Somali warlord Mohammed Farrah Aidid.47 For the French, the image of their peacekeepers held hostage before the slaughter at Srebrenica in 1995 was fresh in their memories.48 A second reason put forth for not actively apprehending war crimes suspects is the fear that mounting military operations would be in direct opposition to IFOR's role in the maintenance of order and stability, as IFOR was created as an international peacekeeping body, not as a domestic police force.49 These excuses were increasingly indefensible as it became clear that the risk of retaliation could be mitigated by actively arresting indictees from different ethnic groups, and that the Security Council had imposed an obligation on the international community, not just domestic police forces, to comply with the ICTY.50
After repeated calls from Prosecutor Richard Goldstone51 and other international leaders,52 the first arrests were made in the summer of 1997. After the change in the British government and the accession of Tony Blair as Prime Minister, British forces led the charge, performing twelve of the first twenty arrest attempts.53 The change has also been attributed to the leadership change in July 1997 within NATO. General George Joulwan, overall NATO commander, left his post and was replaced by General Wesley Clark.54
This brief overview of the apprehension of war crimes suspects in the former Yugoslavia shows that with the passage of time, NATO troops have become more aggressive in the pursuit of suspects. Other measures designed to entice countries to comply with ICTY indictments, including economic sanctions, have been used to freeze assets or cut off aid.55 Yet, two of the most notorious figures of the wars, Bosnian Serb leader Radovan Karadzic and Bosnian Serb army commander Ratko Mladic, remain at large, very probably in the territory of the former Yugoslavia.56 In her November 2004 address to the Security Council, Prosecutor Carla Del Ponte stated that the lack of state cooperation in the arrest and transfer of indictees is the first obstacle in achieving the timeline of the Completion Strategy.57 She singled out Karadzic, Mladic, and Ante Gotovina as the three most important fugitives and condemned Belgrade, Prime Minister Kostunica, and Republika Srpska for not cooperating with the ICTY.58 She concluded her address by warning that the Completion Strategy may need to be revised if these three indictees are not arrested and transferred shortly.59
B. East Timor
In response to widespread violence and attacks on the staff and facilities of the U.N. Mission in East Timor (UNAMET) in August 1999, the Security Council, acting under Chapter VII powers, adopted Resolution 1264 which authorized a multinational force to restore order and facilitate humanitarian assistance in East Timor.60 The multinational force, called the International Force for East Timor (INTERFET), was led by Australia and had authorization to use all necessary force to restore peace and security until a U.N. peacekeeping operation could be installed.61 INTERFET filled the complete vacuum of policing and justice, and was responsible for arrests and detention until January 2000.62
The Security Council established the U.N. Transitional Administration in East Timor (UNTAET) one month after INTERFET commenced operations.63 Resolution 1272, which established UNTAET, reiterated the Security Council's condemnation of the violence and demanded that those responsible be brought to justice.64 As part of its mandate, UNTAET was charged with the administration of justice.65 UNTAET worked with INTERFET to secure forensic expertise and equipment and investigated the atrocities that occurred after the referendum.66 INTERFET helped UNTAET recruit any lawyers, law graduates, and law students remaining in East Timor by dropping leaflets from airplanes.67
The Special Panels for Serious Crimes were established at Dili in East Timor by UNTAET.68 These hybrid judicial panels have jurisdiction over serious crimes including genocide, war crimes, and crimes against humanity, and other offenses committed between January 1, 1999, and October 25, 1999.69 International judges were appointed in July 2003, allowing the panels to operate at full strength and permitting the reopening of the Court of Appeals.70
In the first twenty-two months of operation, the Special Panels rendered twenty-four judgments.71 Approximately thirty-nine defendants are awaiting trial.72 Cooperation with Indonesia in securing individuals and evidence has challenged the General Prosecutor. Despite the emphasis placed by the Security Council on cooperation with Indonesia and the frequent negotiations between UNTAET and Indonesia, cooperation has been minimal.73 Defendants are often in Indonesian West Timor, which is beyond the subpoena power of the Special Panels.74 UNTAET cannot mandate the transfer of individuals from West Timor or the Indonesian mainland, despite having signed a Memorandum of Understanding with Indonesia.75 One public defender stated that "without subpoena power, the courts will only ever get the small fish."76
In addition to the Special Panels, UNTAET issued Regulation 2001/10 establishing the Commission for Reception, Truth and Reconciliation in East Timor.77 The Commission is charged with investigating human rights violations that occurred during the occupation of East Timor between 1974 and 1999.78 One of the objectives of the investigatory commission is to refer human rights violations to the Office of the General Prosecutor of the Special Panels if appropriate.79 The Regulation states that "[n]othing in the present Regulation shall prejudice the exercise of the exclusive prosecutorial authority of the General Prosecutor and Deputy General Prosecutor for Serious Crimes ... nor the exclusive jurisdiction over serious criminal offences of the Serious Crimes Panel of judges [emphasis added]."80 The investigatory commission aims to facilitate community reconciliation for those who committed lesser offenses and does not grant amnesty.81 Looting, burning, and minor assault are listed as examples of lesser offenses whereby an individual may be eligible to perform acts of reconciliation.82 However, the regulation lays out the terms for immunity, which while different than amnesty, allow the perpetrator to escape without civil or criminal liability.83 The regulation explicitly provides however, that there will be no immunity for serious criminal offenses, and that a deponent at the Reception, Truth, and Reconciliation Commission can still be prosecuted for other criminal acts.84
Despite the tenuous peace brokered by the parties to the Dayton Peace Agreement, hostilities in the former Yugoslavia peaked yet again in the late 1990s, this time in Kosovo, a semiautonomous region of southern Serbia, with a majority ethnic Albanian population. By the conclusion of the NATO bombing campaign to prevent genocide by the Serbs against the Albanians in Kosovo, 800,000 Kosovars had been displaced from the province and roughly 500,000 had been internally displaced.85 The threat of violence and humanitarian catastrophe loomed on the horizon, as relations between the ethnic Albanians and Serbs had hit an all time low.86 The Security Council adopted Resolution 1244 in June 1999. This binding resolution called for the deployment of an international civil and security presence.87 NATO supplied the military presence, known as KFOR, while UNMIK was charged with administration, institution building, providing humanitarian aid, and reconstruction.88 KFOR was charged with supporting and coordinating closely with the work of UNMIK. One of UNMIK's responsibilities under Resolution 1244 is to protect and promote human rights.89 Further, the resolution demands full cooperation by all parties with the ICTY.90
The extent of unrest between the different ethnic groups caused a need for an additional judicial process, besides the ICTY operating in The Hague.91 With the support of local Kosovar judges, tribunals with international appointees have been formed to hear charges of genocide, war crimes, and crimes against humanity.92 The international judges in these local courts form a majority of the justices on each case and final discretion to abandon a case falls to the international prosecutor.93 These hybrid tribunals are trying to "act within the framework of international human rights standards and principles of non-discrimination in the local prosecution of war and ethnic crimes and other serious violations of international law."94
The apprehension and detention of suspects has been mostly performed by KFOR. The American contingent of KFOR, Task Force Falcon (Task Force), arrived days after the Security Council issued Resolution 1244 and essentially became the police force for Kosovo, "ensur[ing] public safety and order until the international civil presence [could] take responsibility for this task."95 In addition to filling the deployment gap for UNMIK, the Task Force also filled the judicial gap, as Task Force judge advocates stepped in to do the work of Emergency Judicial System (EJS) teams who were stretched too thin.96 Even when the permanent judicial system was in place, the Task Force continued to perform a judicial role, with soldiers delivering subpoenas and serving as security detail for the court.97 The Task Force also ran the prison facility, providing food, water, showers, and medical care to the detainees.98
The work of the Task Force and also UNMIK, operating as cops, judges, and jailers,99 demonstrates that ITA functioned in Kosovo not just to restore order, but to support future prosecution, even before viable judicial bodies were available. By arresting suspects and detaining them, the Task Force allowed the international (ICTY) and hybrid judicial processes to have a chance at achieving criminal justice in the region.
Following the U.S. and UK-led invasion of Iraq in March 2003, the representative to the U.N. from the UK, Sir Jeremy Greenstock, and the representative from the United States, John Negroponte, established the Coalition Provisional Authority (CPA) to administer Iraq and create an environment in which the Iraqi people would be able to determine their future status.100 Among the stated aims of the CPA was to "promot[e] accountability for crimes and atrocities committed by the previous Iraqi regime."101 The Security Council recognized the CPA and verified that there was an expectation among the Iraqi people to bring culpable Ba'athist regime members to justice.102 Resolution 1483 called upon member states to actively support the process of apprehending war crimes suspects and otherwise assist in bringing them to justice.103 The Security Council also established the U.N. Assistance Mission for Iraq (UNAMI) as a follow-up to the oil for Food Program; however, since the security situation deteriorated markedly in the fall of 2003, UNAMI workers relocated to Amman, Jordan.104
The administrator of the CPA, L. Paul Bremer, temporarily ceded authority to the Iraqi Governing Council to enact the Statute of the Iraqi Special Tribunal (Special Tribunal) in December 2003.105 The order cites the call for accountability in Resolution 1483 and notes the "general concerns and interests of the Iraqi people . . . to establish a Special Tribunal to try members of the Ba'athist regime accused of atrocities and war crimes."106 The Special Tribunal has jurisdiction over an Iraqi national or resident of Iraq who committed the crime of genocide, crimes against humanity, war crimes, or certain violations of Iraqi law between 1968 and 2003.107 The judges, prosecutors, and defense counsel must be Iraqi nationals, but foreign observers are permitted to assist officials and advise on due process standards.108 The judges and prosecutors received training in London by the U.S. Justice Department's Regime Crimes Liaison Office.109 The United States paid the tribunal's budget of $75 million for 20040 -2005."110 In July 2004, the Iraqi public was riveted when twelve high-ranking members of the Ba'athist regime, recently deposed, appeared before an Iraqi judge, including Saddam Hussein.111 In December 2005, after nine weeks of testimony concerning the 1982 executions in the town of Dujail, Chief Judge Rizgar Muhammad Amin, announced that the trial would resume in late January, after Iraq's New Year's celebrations and the annual Muslim pilgrimage to Mecca.112
Since the dissolution of the CPA and the handover of sovereignty, the multinational forces have a joint role. They are the security presence, actively battling the insurgency, and they are also apprehending and detaining Ba'athist regime officials.113 There is an additional dimension to apprehension in Iraq. In addition to the apprehension of suspected war criminals, multinational forces have also arrested and detained suspects in the war on terror. In June 2004, Human Rights First (formerly the Lawyer's Committee for Human Rights) released a report called Ending Secret Detentions which detailed the extent of secrecy surrounding the detention of suspected terrorists.114 As documented in the report, in many cases it is unknown exactly who has been detained and where they have been transported and for what specific reason. It is known that many detainees have been sent to Guantanamo Bay, Cuba, but their numbers, legal status, nationality, and identity are not in the public record. In addition, the Iraqi Police are estimated to have arrested and detained between 99 and 270 foreign fighters on suspicion of terrorism.115
E. Sierra Leone
While the events that preceded U.N. intervention in Sierra Leone have been documented elsewhere,116 this brief review is intended to reveal the position of the international community vis-à-vis the civil war that began in 1991. Pursuant to the peace agreement at Lomé in July 1999 between the government of Sierra Leone and the Revolutionary United Front (RUF), the U.N. established the United Nation's Mission in Sierra Leone (UNAMSIL) to carry out the provisions of the accord.117 Within several months, it became clear that the RUF, lead by Foday Sankoh, did not intend to comply with the terms of the accord. In response, the Security Council increased the number of UNAMSIL military personnel from 6000 to 11,100 and expanded the mandate of UNAMSIL to include coming to the assistance of Sierra Leone law enforcement authorities.118 After attacks by the RUF against UNAMSIL personnel in May 2004, the President of the Security Council announced that Foday Sankoh was responsible for these acts and that "he must now be held accountable, together with the perpetrators, for their actions."119 This pronouncement gave UNAMSIL, along with the international community, the task of bringing those responsible for the conflict to justice.
As part of the Lomé agreement, the Parliament of Sierra Leone established a Truth and Reconciliation Commission.120 The investigatory commission was functional by July 2002 and had jurisdiction for violations committed between the beginning of the war in 1991 and the signing of the agreement in July 1999.121 The language establishing the investigatory commission was otherwise vague and failed to require any of the parties to participate.122 The final report of the Truth and Reconciliation Commission was submitted to the President of Sierra Leone on October 5, 2004.123
Under the Lomé agreement, Sankoh was pardoned and other combatants received unconditional blanket amnesty.124 Significantly, the UN representative present at the signing of the accord added a reservation stating that the UN would not apply the amnesty to charges of genocide, crimes against humanity, war crimes, or other violations of international law.125 This loophole in the blanket amnesties of Lomé coupled with the killing and hostage-taking of UNAMSIL personnel and demonstrated interest in the international community,126 led to Resolution 1315 in August 2000.127 Resolution 1315 called for the creation of a Special Court for Sierra Leone (Special Court) to try those persons who "bear the greatest responsibility" for serious crimes taking place after November 30, 1996, with the hope that establishing a legitimate judicial system in Sierra Leone will end impunity, facilitate national reconciliation, and promote peace.128
Unlike the ICTY, the Special Court was formed by treaty between the U.N. and the government of Sierra Leone and is not a subsidiary organ of the U.N. It is not endowed with Chapter VII powers, but is an international court for purposes of immunity.129 In its Decision on Immunity for Jurisdiction for Charles Taylor, former head of state of Liberia, the Special Court cited the mandate of the court as given in Resolution 1315 to support its conclusion that the court is "part of the machinery of international justice."130 However, the court only exercises primacy over the national courts of Sierra Leone, and not the national courts of other states.131 The Special Court cannot demand the extradition of an indictee from a third state.132 Likewise, UNAMSIL troops assisting the Sierra Leone law enforcement bodies cannot arrest suspects outside the court's jurisdiction. This is a significant omission, especially considering the history of non-cooperation with the peace process on the part of Liberia and Burkina Faso.133 The Secretary-General addressed this problem and asked the security Council to consider vesting the Special Court with Chapter VII powers to obtain indictees residing outside the jurisdiction of the court.134 The Security Council has not taken up this suggestion and some commentators have speculated that the Security Council does not want it to appear that the Special Court is a subsidiary organ of the U.N. and therefore entitled to a share of the U.N.'s budget.135
VI. THE OBLIGATION TO PROSECUTE-GENERALLY
International prosecutors have given many reasons why it is necessary to prosecute persons accused of serious crimes.136 Reasons include discouraging future offenders from committing human rights atrocities, avoiding vigilante justice, the promotion of healing and reconciliation for victims, and guaranteeing respect for the rule of law.137 Given these honorable reasons for prosecuting war criminals, are states obligated to prosecute?
Michael Scharf has explored the possible sources of an obligation to prosecute both in treaty law and customary international law.138 States must prosecute because of the Geneva Conventions "[w]here atrocities occur during an international armed conflict."139 States must prosecute under the Genocide Convention if widespread violence is targeted at ethnic, racial, national or religious groups.140 States must prosecute torture in countries that are party to the Torture Convention if "persons under the color of law" engage in acts of torture.141 The conditions attached to the application of these conventions limit the instances in which there is an obligation to prosecute. For example, the amnesty granted after President Jean-Bertrand Aristide of Haiti was forced into exile following a military coup in 1991 and 3000 Haitians were murdered, did not violate international treaty law.142 The Geneva Conventions were not triggered because the conflict in Haiti was not deemed an international conflict, the Genocide Convention did not apply because the violence was not directed at ethnic, racial, national, or religious groups, and the Torture Convention did not apply because Haiti was not a party.143
Since the application of these conventions is limited, commentators have turned to the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights, and the American Convention on Human Rights to compel states to protect human rights.144 Despite promising judgments from the Inter-American Commission that states must do something to identify perpetrators and punish them, measures short of prosecution such as non-criminal sanctions have been deemed adequate.145
Customary international law allows permissive jurisdiction to try persons who have allegedly committed crimes against humanity.146 Scharf argues that despite calls from scholars and the proclamations of NGOs that there is an obligation to prosecute crimes against humanity, the assertion is based on "non-binding General Assembly Resolutions, hortative declarations of international conferences, and international conventions that are not widely ratified."147 To find that there is an obligation to prosecute under customary international law, there must be extensive state practice. Rather than finding prosecution as state practice in the modern era, state practice reveals widespread impunity, beginning with the lack of effective sanction by the international community during and after the genocide of the Armenian minority by the Turkish government during World War I.148
A final aspect of customary international law, jus cogens, has been considered as a possible source of the obligation to prosecute. Slavery, piracy, genocide, and aggression are commonly recognized as jus cogens norms, from which no derogation by treaty or objection can be granted.149 Scholars are reluctant to recognize new jus cogens norms, therefore, it is not likely that a duty to prosecute is a jus cogens norm.150 Despite the litany of instruments that have been suggested as measures to ensure prosecution for serious crimes, there is no obligation on states to prosecute that applies across the board, either in treaty law or customary international law.
VII. THE OBLIGATION TO PROSECUTE IN THE CONTEXT OF ITA
As has been discussed in earlier sections of this paper, in five administration projects that have taken place in the last thirteen years, international organizations working to administer territory have contributed to the work of judicial bodies that hear cases concerning human rights violations, largely by apprehending indictees and delivering them to the tribunals. These tribunals are not based on one model, for example the ICTY is an ad hoc international tribunal formed by Security Council resolution, whereas the Special Court in Sierra Leone was formed by treaty and follows the hybrid model utilized in Kosovo and East Timor. Another difference is the degree of support for the establishment of the courts offered by the host state government. The president of Sierra Leone petitioned for the Special Court, whereas some of the leaders of the former Yugoslavia did not recognize the ICTY in 1993 and still do not today. Despite these differences, the creation of the tribunals supports the assertion that ITA plays an important role in furthering criminal justice.
The previous section disclosed that there is no general obligation to prosecute. In place of prosecution, impunity has prevailed, and amnesties have been issued. Many countries including Argentina, Algeria, Romania, Haiti, El Salvador, Mozambique, and South Africa have issued amnesties despite evidence of human rights violations.151 Amnesties have been employed in a variety of situations and can be classified as either self-amnesties, transitional amnesties, or post-conflict amnesties.152 Self-amnesties take place when governments pass amnesty laws exonerating themselves.153 This happened in Argentina before Pinochet left office in 1990, but the amnesty was subsequently nullified, opening the door to the stripping of his immunity.154 Transitional amnesties are granted when a new government offers amnesty to members of the previous government because they fear civil unrest and desire stability.155 The Truth and Reconciliation Commission in South Africa was established to prevent loss of life when the apartheid government and the African National Congress wrote a new constitution and a new government took power.156
The final type of amnesty, post-conflict amnesty, is most relevant to this discussion of ITA and prosecution. Post-conflict amnesty is offered by a state to end a conflict and persuade the parties to disarm.157 This happened in Mozambique, Algeria, and in Sierra Leone.158 This type of amnesty would arguably have been possible for the indicted war criminals in Bosnia or Rwanda. The situation in Iraq could have led to either transitional amnesty or post-conflict amnesty, as there was both a change in government and a military conflict. However, citing the need for accountability for past and ongoing crimes, the international organizations administering Bosnia, Kosovo, and Iraq opted not to issue amnesties for serious crimes.
While amnesty is a valid legal concept and amnesties have been widely employed, at least one commentator has proclaimed that multilateral interventions, particularly when prompted by violations of international humanitarian and criminal law, must lead to prosecution.159 This author agrees with that assessment and argues further that the five case studies utilized in this paper support the contention that there is an emerging obligation to prosecute in the context of ITA.
But, as noted earlier, East Timor and Sierra Leone have investigatory commissions. These commissions operate alongside prosecutorial bodies. If there is an obligation to prosecute for violations of human rights that accompanies ITA, then one might ask why we have the commissions. The organization of the commissions is telling; we see that the commissions are not designed to allow human rights violations to go unpunished in exchange for stability or resolution of a conflict. UNTAET Regulation 2001/10 says that jurisdiction for serious crimes resides exclusively with the Special Panels.160 Therefore, the jurisdiction of the investigatory commission is limited to nonserious crimes. This is a departure from previous amnesties in countries that did not experience ITA. In those countries the amnesties protected persons accused of violations of human rights.161
The history of the investigatory commission in Sierra Leone supports the position that there is an obligation to prosecute violations of international law in certain circumstances. The blanket amnesty for combatants and the pardon of Foday Sankoh in the Lomé accord sparked widespread condemnation by NGOs and others in the international community.162 Many warned that trying to establish peace without implementing judicial mechanisms for justice would result in a short term cessation of hostilities, but not lasting peace.163 The U.N. was in a precarious position, forced to defend its role in the negotiations at Lomé that produced the amnesty, but it was the U.N. representative who inserted the clause stating that the U.N. did not recognize amnesty for serious crimes, thereby preserving the possibility for later prosecutions. The U.N. High Commissioner for Human Rights, Mary Robinson, argued that the amnesty was only applicable under national law, and that it did not apply for crimes against humanity, thus necessitating an international investigation of the charges.164
Resolution 1315, which created the Special Court, acknowledged the contribution of the investigatory commission to the rule of law in Sierra Leone, yet concluded that the country was experiencing a "pressing need for international cooperation to assist in strengthening the judicial system" and needed "a credible system of justice and accountability."165 The Security Council could have decided to broaden the scope of the investigatory commission by narrowing the circumstances in which a combatant could receive amnesty. This would have indirectly pressured combatants by raising the specter of criminal liability in the domestic courts of Sierra Leone. They might have decided to use the commission to address gross violations, as has been done in many states previously. This would have saved the U.N. the expense of implementing and supporting the Special Court and also would not have required international observation, as the Truth and Reconciliation Commission was a domestic body. In spite of these practical advantages, the Security Council did not select any of these alternatives.
It is worth noting that the Special Court and the Truth and Reconciliation Commission operate separately, though they share common administrative services.166 In principle, the two bodies are not supposed to share information, though it may be permissible in exceptional cases.167 This shows that the work of the Special Court and the work of the Truth and Reconciliation Commission are deliberately separate, and that the sentences handed down by one are not intended to apply to defendants in the other.
The chronology of the Truth and Reconciliation Commission and the Special Court also demonstrates that the solution reached in Lomé was ultimately unsatisfactory for the parties and that after ten years of a brutal civil war, prosecution was chosen as the means to provide justice and a sense of restitution for the terrorized civilian populace.168 Citing "deep concern" with the serious crimes committed in Sierra Leone and the "prevailing situation of impunity," the Security Council requested the formation of an independent court, not part of the Truth and Reconciliation commission, and not part of the domestic judiciary.169 The Special Court clarified its character as an international body in the Charles Taylor decision described in Part V.
Some commentators have defended the amnesty in the Lomé accords as the "only option" for Sierra Leone.170 Perhaps the amnesty in Lomé was the only option for ending the fighting, though this is uncertain since fighting resumed despite the pardon for the RUF leadership. What is apparent from the experience of Sierra Leone is that amnesty is not the "only option" or the preferred option to redress grievances in a post-conflict setting. While amnesty may have been the original idea in Sierra Leone, the installation of the Special Court demonstrates that imposing criminal liability for human rights violations is possible even when amnesty was on the table in the past.
The developments of the past decade in ITA suggest an emerging trend. With five171 of the major ITA projects, judicial bodies have been established to hear cases of human rights violations. There had not been ITA since the end of the cold war, with the exceptions of UNOSOM II in Somalia and MINURSO in the Western Sahara, which was not accompanied by the establishment of international courts.172 Investigatory commissions, often criticized in the past for excusing gross violations and promoting impunity, were employed in East Timor and Sierra Leone, but the key difference is that they have been used alongside a judicial body, not as the sole means of addressing violations. The language used in the regulations governing the commissions in East Timor and Sierra Leone reflects the primacy of the prosecutorial bodies for all cases of serious crimes. This demonstrates that the drafters of the regulations, particularly in East Timor, were conscientious in observing that the capacity to redress serious crimes resides within the jurisdiction of the Special Panels for Serious Crimes at Dili.
VIII. WILL ITA CONTINUE TO SUPPORT AN OBLIGATION TO PROSECUTE?
The previous sections have explained how ITA has supported an emerging obligation to prosecute, namely by apprehending suspects and delivering them to international tribunals. The sentences from these tribunals have replaced the blanket amnesties issued in the past during governmental transitions or after a major conflict. Where investigatory commissions remain, they are complemented by judicial tribunals. This trend supports an emerging obligation to prosecute.
Is this a phenomenon of the last decade, destined to eventually be replaced by international apathy for deterrence and justice? Some would argue that the days of ad hoc international tribunals are numbered due to financial concerns, namely that the limited resources of international organizations would be better spent to reconstruct and rebuild institutions, rather than being used to hold lengthy and costly trials.173 While it is not the intention of the author to try to predict the future, and the ratification of the Rome Statute establishing the International Criminal Court may eventually obviate the need for multiple international tribunals, it is probable that ITA, as it has been constituted since the end of the cold war, will continue, as will the duty of the forces on the ground to apprehend wanted persons.
The exigencies of conflict prevent the U.N. from being immediately ready to field a properly trained police force to perform law enforcement duties. For the same reason, it is unlikely that teams of investigators, lawyers, and translators will be ready at a moments notice. Thus the law enforcement and justice components of administration are a recurring feature in the military operations within ITA.174 The ability of ITA to support the obligation to prosecute depends largely on the ability of the forces on the ground to secure arrests, while still helping maintain peace. A former combat arms officer and current JAG lawyer has noted the differences between the ability of the troops on the ground to support prosecution in Bosnia and in Kosovo. In Bosnia the "opaque verbiage" of the Dayton Peace Agreement regarding the role of NATO troops in apprehending war crimes suspects caused a "gap in the mission planning."175 This gap was documented, as noted previously, by the media, as it became clear that NATO troops were not arresting suspects. In contrast, Resolution 1244 establishing UNMIK specifically demanded "full cooperation by all concerned, including the international security presence, with the International Tribunal for the Former Yugoslavia."176 KFOR supported the ICTY teams, including by apprehending suspects, because Resolution 1244 made the justice component of the armed forces' mandate clear.177
As noted by Ralph Wilde, ITA is not a new policy institution, 178 and it is probable that there will be future instances of a breakdown in sovereignty or governance leading to ITA. As explained in the previous paragraph, the security or military component of ITA fills the deployment deficit and also supplies law enforcement and judicial support. The only further question to investigate in determining whether this emerging obligation to prosecute is more than a passing trend is to ask whether the idea that prosecutions are necessary and preferable to amnesty alone has garnered widespread support.
In addition to the five case studies put forth in this paper, recent developments in Iraq have spawned an abundance of statements by commentators and NGOs that the persons responsible for attacks on Kurds, Iranians, Kuwaitis, and ordinary Iraqis should face criminal prosecution. Human Rights Watch has said that the Statute of the Iraqi Special Tribunal does not go far enough to ensure justice for the victims of the Ba'athist regime because it does not require that judges and prosecutors have experience working on complex criminal cases or cases involving human rights.179 The statute also does not permit foreign judges or prosecutors, even those with relevant experience.180 Anthony D'Amato, lead counsel for Milan Kovacevic, the first person charged with genocide at the ICTY, is critical of the fact that provisions for defense counsel are hardly mentioned in the Statute.181 D'Amato concluded his remarks with the following statement: "We should be grateful that there apparently was no pressure to establish instead a Truth and Reconciliation Commission, for whatever the merits of truth commissions may be, the fact is that they do not operate to deter future war criminals."182
As shown by their comments, leading non-governmental organizations and international lawyers support international criminal courts but have some concerns. First, the calls for jurists with more criminal law and human rights law experience show that the Statute has left room for questions about the legitimacy of the Special Tribunal. D'Amato's desire to see more provisions made for defense counsel is a result of his experience at the ICTY. He added that "[t]he harder the working conditions for defense counsel at international criminal tribunals, the less persuasive will be the final opinions of the judges and the less respect will be accorded their judgments."183 His statements, like those of Human Rights Watch, display concern about the fairness and legitimacy of the process, while stressing that the tribunals' work is important for promoting justice and protecting human rights. D'Amato's second statement is particularly instructive. A strong preference for a tribunal in Iraq instead of an investigatory commission reinforces the assertion that prosecution is necessary and preferable, even considering the practical advantages of investigatory commissions.184
Having conveyed the following three propositions: that ITA is not new and will continue as a policy institution implemented by international organizations, that the military component of ITA can effectively support the efforts of international tribunals if given a clear mandate, and that the preference for prosecution over amnesty for serious crimes is alive and well for the foreseeable future, it is the conclusion of the author that ITA will continue to support an emerging obligation to prosecute human rights violations in international tribunals.
IX. WHAT ARE THE IMPLICATIONS OF THE EMERGING OBLIGATION?
If there is an emerging obligation to prosecute associated with ITA, what are the practical and normative implications?
A. In Practice
The emerging obligation to prosecute will exacerbate the current operational problems faced by the courts in The Netherlands, Kosovo, Sierra Leone, East Timor, and Iraq. These difficulties include a hiring freeze185 and a lack of funding which affects resources and support, particularly in the case of Sierra Leone. In the early days of the ICTY, commentators suggested that the test of whether the international community intended the ICTY to achieve accountability, truth telling, deterrence, and reconciliation would be whether it was given the necessary resources.186 The success or failure of the courts still largely depends on the will of the international community. An obligation to prosecute will necessarily require the devotion of more resources to the development and operation of tribunals, possibly leading to fewer resources being allocated to reconstruction efforts. Further, the tribunals are already challenged to provide security for and protect the identity of witnesses.187
Establishing prosecution as an obligation will increase caseloads for international courts, which could lead to perilous stretching of resources, both human and physical. Increased demand could lead to a reduction in the quality of personnel employed by the court. In East Timor, questions have been asked about the competence of judges and prosecutors. While discussing judicial cross-fertilization and hybrid courts, a Burundian judge in Dili disclosed that one of the East Timorese judges had never before heard of crimes against humanity.188 A joint report issued by Amnesty International and the Judicial Systems Monitoring Programme in 2003 noted the "low quality of the prosecution" and that "lack of training and skills was clearly an issue" leading to questions of whether prosecutors were even trying to secure convictions.189 The report listed indications of incompetence and concerns about possible intimidation in the behavior of the judges.190 This is not to suggest that the people employed by the court are low quality or poorly educated, but merely illustrates the fact that it is and will be difficult in the future to recruit and retain enough qualified people to staff the various courts.191
American military lawyer, Michael Newton, has argued that the net effect of an obligation to arrest and prosecute war criminals could be a disincentive for forces on the ground who are capable of supporting the rule of law.192 His argument hinges on his interpretation of treaty law, specifically Article 146 of the Geneva Convention Relative to the Protection of Civilians in Time of War, and the difference between legal obligation and "policy pronouncements" in Article 146.193 Newton uses "could" to describe the possible disincentive and does not include examples of the disincentive in play. Prosecutor Louise Arbour criticized this distinction made by some military lawyers in deciding whether or not to arrest war criminals.194 She asserted that the role of the military is the vigorous and relentless apprehension of indictees. 195 This suggests an obligation in custom that does not rely on treaty law.
B. In Principle
International acceptance of an obligation, and not merely an entitlement, to prosecute would further the work of international lawyers and represent a leap forward on the path toward achieving the goals of prosecution. Clearly, the idea of accountability for serious crimes is furthered by mandatory prosecution. Many believe that general and specific deterrence can be achieved by prosecution.196 Prosecutions can help victims recover from their ordeals. Trials place the details of crimes and the judgment into the historical record so that the atrocity cannot be denied in the future.197 Prosecution can contribute to reconciliation, as parties to the dispute might have a better chance at improving relations if former leaders are no longer exerting influence.
One detrimental aspect of an emerging obligation to prosecute is that it may be seen, or even operate, as a means to deny the afflicted party the opportunity to mete out justice using their local legal procedures. The ICTY and the ICTR have been widely criticized because they are not located in the territory where the crimes occurred. This distance may contribute to a disconnect that prevents those directly affected by the work of the court from observing trials in person. The local media may be unreliable or partial, and some victims and witnesses may be too poor to own a television. The fact that the ICTY was established before the Dayton Peace Agreement leads us to ponder what might have happened if at the time of the Dayton Peace Agreement, or at the time of the establishment of UNMIK, there had been no international tribunal available for prosecutions. Would local courts have been given jurisdiction for these criminal cases? Perhaps hybrid tribunals would have been used exclusively. As noted from the case of East Timor, an advantage to hybrid tribunals is that international judges and lawyers help instill human rights law and international law into the court's jurisprudence. This "cross-fertilization" cannot happen if the proceedings take place without local judges in distant locales.
The ICTY has announced its Completion Strategy.198 As part of the Completion Strategy, the tribunal will exclusively prosecute the highest level indictees, and will refer cases against intermediate and lower level suspects to competent domestic courts.199 The former President of the ICTY, Judge Theodor Meron, explained some of the reasons for transferring cases to the courts of the former Yugoslavia.200 He noted that holding trials in domestic courts will bring reconciliation to the people of the region and promote the development of the rule of law.201 He described ongoing efforts by the international community to prepare the domestic judiciaries for this responsibility, including the creation of task forces and working groups.202 This effort showcases the desire of the international community for local processes to succeed, even while the international processes continue.
Not only does heavy reliance on international prosecution deprive local actors of the opportunity to try an accused, foreign standards or norms concerning justice can be imposed inadvertently. In several cases, judges have been challenged to understand and respect the beliefs of cultures entirely outside their personal background. Partnership with local judges in East Timor has been essential for international judges to gain an understanding of local traditions.203 An East Timorese judge assisted an Italian judge in understanding how the traditional belief in curses and black magic persists on the island because this belief was proffered as a mitigating circumstance in a murder case.204 Inevitably, international officers of the court will be unfamiliar with local customs. This creates a risk of imposing Western ideas on people who are unfamiliar with Western traditions, legal and otherwise.
The obligation to prosecute may also have the unintended consequence of forcing victims of serious crimes to relive atrocities repeatedly. It is possible that there was only one surviving witness to a serious crime. In order to convict an accused, the prosecutor may need the testimony of that one witness. This situation relates to the problems associated with apprehension. Since the ICTY has suffered from the inability to secure arrests and has not been able to bring a case against all the defendants charged in a particular incident at one time, it is forced to engage in repeat trials, litigating the same crimes and calling the same witnesses.205 This leads to witness fatigue.206
An obligation to prosecute pursuant with ITA is still subject to the criticism of selective enforcement. Noted scholar M. Cherif Bassiouni acknowledged the prosecutorial successes of the twentieth century, including some of the convictions at the Nuremburg and Tokyo tribunals, and the work of the ICTY and the ICTR.207 However, prosecution was not attempted after Stalin's purges of the 1950s, or against Italian Fascists who used prohibited gas in Ethiopia and bombarded Red Cross hospitals.208 Prosecution was considered but then abandoned for political reasons in the cases against Pakistani troops in the civil war that led to the establishment of Bangladesh.209 Similarly prosecution was considered but not commenced against Iraq for abuses that occurred during its occupation of Kuwait in the early 1990s.210
Selective enforcement will remain even with an obligation to prosecute for two reasons. First, it is logistically burdensome to try every culpable person in the foregoing conflicts. This was noted by the secretary-General as he considered the temporal jurisdiction of the Special Court for Sierra Leone.211 Second, even with an obligation to prosecute stemming from ITA, the personal jurisdiction provisions in the statutes of the tribunals leave out culpable persons. The Statute for the Iraqi Special Tribunal permits prosecution for Iraqi nationals and residents of Iraq.212 This limitation prevents the Special Tribunal from trying Saudis, Syrians, or al Qaeda members of a different nationality who may have supported the Ba'athists.213 It also precludes prosecution against soldiers of the multinational force currently occupying Iraq. In addition, the statute for the Special Tribunal imposes a temporal restriction that limits the offenses allowed to be adjudicated to those that took place between 1968 and May 2003.214 This prevents the tribunal from hearing any cases arising since that date. The people responsible for kidnapping and killing civilians in recent months cannot be tried before the Special Tribunal even if it is established that they have committed a serious crime and the other jurisdictional criteria are satisfied.
Since their inception in the post-cold war era, international criminal tribunals have been criticized as efforts by the international community, after the fact, to acknowledge atrocities that could have been lessened or even prevented altogether, had there been sufficient political will and attention paid to the warning signs of a looming conflict. For example, the ICTY has been condemned as "a substitute for real action to control the crimes."215 Whether this is a fair criticism is outside the scope of this paper, but it is necessary to note that this criticism is applicable to all of the courts mentioned, and that it will possibly become more virulent if the obligation to prosecute in the context of ITA is widely accepted and grows as a norm. Critics might argue that it is nice that there is now this system of international courts and an obligation to prosecute, but that the international community ought to be focused instead on saving lives.
It is true that the international community has failed in the past to prevent atrocities, prominently among them, genocide. However, it is also true that the international criminal tribunals set up to provide justice to victims and punishment to perpetrators should not be overlooked. Justice Robert Jackson described bringing perpetrators to justice as "a duty we . . . owe to our . . . humanity and to the prevention of future victimization."216 Pope Paul VI said, "[i]f you want peace, work for justice."217 Although prosecution after a serious crime has already occurred is a secondary objective compared to preventing a serious crime, international criminal law bodies are working for justice, with the hope of achieving peace. While describing the ten-year anniversary of the Srebrenica genocide, the Dayton Peace Agreement, and the issuance of the indictments against Karadzic and Mladic, ICTY Prosecutor Carla Del Ponte said, "[i]f the international community could not prevent the genocide, it should at least not allow this and other most serious crimes to be left unpunished."218
Although there are many practical and normative consequences of the emerging obligation to prosecute that are not positive, the positive normative consequences of the obligation are too significant to be disregarded. D'Amato's remarks show that at least one international criminal attorney believes that prosecutions have a deterrent effect that cannot be matched by any other means.219 If we want to live in a world in which human rights violators do not go free, the prosecution of serious crimes suspects must remain a priority for the international community.
ITA has been in operation for seventy-five years, albeit with significant gaps due to a freeze in the Security Council during the cold war. Operating as a distinctive policy institution, ITA has helped make prosecution an obligation. This obligation may prevent the widely criticized blanket amnesties of the 1980s from happening again. Whereas the general rule in international law has been that it is essentially within the purview of states to decide whether or not to prosecute serious crimes or use an alternative like an investigatory commission, the prosecutions following the administrations of Bosnia, Kosovo, Sierra Leone, Iraq, and East Timor reveal a new practice in international law. In each of these places, special judicial bodies prosecuted serious crimes. This practice supports an emerging obligation to prosecute in customary international law.
SARAH M. CLANTON[dagger]
[dagger] J.D. 2006, The University of Texas School of Law. I would like to thank Professor Ralph Wilde for his advice and assistance on several drafts of this note. I would also like to thank my family and the editors and staff of the Texas International Law Journal for supporting me and working hard to give me this opportunity.…
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Publication information: Article title: International Territorial Administration and the Emerging Obligation to Prosecute. Contributors: Clanton, Sarah M. - Author. Journal title: Texas International Law Journal. Volume: 41. Issue: 3 Publication date: Summer 2006. Page number: 569+. © University of Texas, Austin, School of Law Publications, Inc. Summer 2008. Provided by ProQuest LLC. All Rights Reserved.