Lessons from Cambodia Redefine Path Toward Global Justice

By Anna Ansari '11


In the not-so-successful 2002 film adaptation of Graham Greene’s eerily prophetic and insightful novel, “The Quiet American,” a main character opines that, “They say whatever you’re looking for, you will find here. They say you come to Vietnam and you understand a lot in a few minutes.”  

I knew what I was looking for—a job and a deeper understanding of Chinese law, something about which I am passionate—when I decided to spend this semester, my last, participating in Brooklyn Law School’s study abroad exchange program at Hong Kong University. I did not, however, know or expect to encounter in these few short months, an experience that not only would be so enriched by the public international law concepts, laws and conventions that I studied at Brooklyn Law School in courses such as International Law and International Human Rights, but also would challenge, educate and provoke my thinking in such an unexpected fashion as I encountered during my February “Reading Week” break from HKU.

When I booked a round-trip ticket from Hong Kong to Saigon for 12 days, I knew that I would be exploring a country, culture and history inescapably tied to 20th century U.S. history, consciousness and sensitivity, but I did not expect to spend seven of those 12 days in neighboring Cambodia, exploring not only the spectacular temples of Angkor Wat, but also the atrocities and legacy of the Khmer Rouge—a short-lived government about which, prior to this trip, I knew very little. Pol Pot. The Killing Fields. These names were familiar to me, but did not yet hold any real deeper meaning.

I did not know, for instance, that over the course of the Khmer Rouge’s four years in power, the regime killed an estimated 2 million of its own people, out of a population of approximately 8 million, that even needing reading glasses could brand you an intellectual and condemn you to a short life of torture, eventual extermination and a place in a mass grave. I did not know that resistance to the establishment of a tribunal to bring those responsible for the crimes of the Khmer Rouge to justice in the 1980s was spearheaded by China and the United States, or that a tribunal, when finally established in 1997 in conjunction with the United Nations stagnated, only to deliver its first conviction in July 2010—the man known as “Dutch,” who ran the Tuol Sleng Prison, where between 1975 and 1979, an estimated 17,000 people were held, tortured, starved and bussed out to be killed to the Khmer Rouge’s Killing Fields, was convicted to 35 years in prison for war crimes.

Visiting Tuol Sleng Prison and the Killing Fields taught me not only historical facts of the Khmer Rouge’s regime, but also spurred me to think seriously and deeply about the importance and necessity of international criminal law and the concept of “global justice,” thoughts and notions that continued to percolate in my mind over the course of my five post-Cambodia days in Saigon.

For a number of years now, the International Law Society has sponsored a “Global Justice Fellowship,” of which I was a recipient in 2009. We at ILS distinguish this fellowship from the International Human Rights Fellowship both in name and because our Fellowship is entirely student-run and supported. However, though different in name from the Human Rights Fellowship, we do not delve into the substantive difference between “human rights” and “global justice,” and, in fact, the ILS fellowship is open to students pursing internships that fall into both categories. There is, however, a difference, and one I never understood fully, despite having been awarded the fellowship, having acted as the Fellowship Chair the following year, and as ILS Co-President this year; this “Reading Week” break has made me realize to some extent what that difference is and what “global justice” entails.

Starting in 2006, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the formal name for the Khmer Rouge Tribunal, has sponsored a three-pronged study tour for interested citizens—first stop, Tuol Sleng Prison; second stop, the Killing Fields, and finally, the Tribunal itself. Since the tour’s initiation, over 70,000 Cambodians have participated. These are citizens who lost family and friends under the Khmer Rouge, as well as former “combatants” who participated in the atrocities of and under the direction of the Khmer Rouge. They go to see and remember, to understand and repent, to memorialize those whose lives were cut short by the Khmer Rouge, and to demonstrate their need for and belief in bringing those responsible for the death of their countrymen and the destruction of their society and homeland to justice. They go, as a former Khmer Rouge combatant quoted on a display in Tuol Sleng put it, “to prevent [them] from having such a regime again.” They go in the name of “legal accountability and justice.”

This past fall, at the close of Professor Lee’s International Law course, he asked who had begun the course believing in the importance and efficacy of public international law, and would now leave believing the opposite. It turned out that the majority of the class, myself included, would leave believing less in international law than at the outset.

After this trip to Cambodia, however, I actually feel the opposite and now believe strongly in the importance of binding international rules and laws that can and will hold legally accountable those that break them and, in doing so, provide justice to the victims and survivors left in their wake—not only because to have mechanisms can provide global justice and hopefully prevent future atrocities, but also because of the importance of providing closure and solace to the victims and survivors. Cambodia has finally begun to have such justice meted out and closure provided; Vietnam, on the other hand, has not.
I was warned by a friend not to visit the War Remnants Museum in Saigon (recently renamed as such after years of being known as the Museum of Chinese and American War Crimes), was told that it was “intensely disturbing,” but I visited the museum all the same. And, it was intensely disturbing. It was disturbing to be confronted with the Vietnamese depiction of America’s actions and legacy in Vietnam—through photo after photo of dead Vietnamese men, women and children, and photo after photo of Vietnamese disfigured by American chemical warfare.

What was most disturbing, however, was the clear lack of closure with which Vietnam and its people suffer, their inability to ever bring us to justice.  While it was the placard in Phnom Penh’s Tuol Sleng Prison pointing out that an ECCC study tour participant had recognized a family member whom they had never known what had become of from amongst the photos of inmates on display, in Saigon’s War Remnants Museum, it was the following 2009 letter to President Obama, written by an Agent Orange victim, that moved me the most—a cry for justice, a cry for assistance, a cry for closure.

President Obama!

My name is Tran Thi Hoan. I am 23 years old and was born in Duc Linh District, Binh Thuan Province, Vietnam with no legs and without a left hand. I am a second generation victim of Agent Orange. My parents were exposed to this deadly chemical, left over from the Vietnam War, while farming our land. Agent Orange has not only killed people living during the war, but has been killing several generations of their children, among whom I am one. It damages my country and other nations beyond imagination. I am writing to ask for your help in providing assistance to more than 3 million victims of Agent Orange like me in Vietnam and for the children of U.S. veterans suffering from Agent Orange in the U.S.

I have read your letter to your beloved daughters, in which you put it like this: “These are the things I want for you—to grow up in a world with no limits on your dreams and no achievements beyond your reach, and to grow into compassionate, committed women who will help build that world. And I want every child to have the same chances to learn and dream and grow and thrive that you girls have. That’s why I’ve taken our family on this great adventure.” I was deeply moved by the love you have for your daughters and the dreams you have for children of other countries, and I believe that you could have included children of Vietnam in your words. I dream that you were including innocent children slowly killed by dioxin, and their suffering. I dream you had in mind what to do to help every child to have the same changes to learn and to dream and grow and thrive like your daughters.

A few words about myself. When I was born, my parents were consumed with grief when they saw me. When I was in junior high school, I studied hard to become a doctor to help people in my hometown because they were so poor. But this dream was taken away from me. When I entered college, I was advised not to study medicine because I had no legs and only one hand. I was told not to dream about raising a family for fear that my children would be born deformed like me or even worse. From my personal story—just one among three million victims of Agent Orange—you may guess how our parents suffer. 

You are a father of two beautiful daughters, and you know how parents love their children. U.S. Vietnam veterans, sick from Agent Orange, have gotten some compensation for their illnesses, but their children have not. How do their children live a decent life the way your daughters do?

In the case of my poor country, Vietnamese veterans of the U.S. war and their children and grandchildren here have not received any justice from the U.S. courts: they refused to hear our case against the U.S. chemical companies. I know because I was one of the plaintiffs, representing millions of Agent Orange victims, in a lawsuit against 37 U.S. chemical manufacturers in U.S. Federal Court, the two richest of which are Dow and Monsanto. 

This denial of justice may have rendered void your dream for every child to have the same chances to learn and dream and grow and thrive. When I visited U.S. cities last October, I found the American people were deeply concerned about the problem of Agent Orange. Yet we are now faced with the lack of many things—sufficient medical care, vocational and physical rehabilitations, long term care, home care. The land like my family’s, which contains dioxin in the soil, has yet to be cleaned up. 

I understand that you are very busy with the urgent matters that face your country. I hope that you will consider the damage that the poison Agent Orange does to the lives of its victims with as much urgency because every life is important to the future of humanity. I hope that you, a symbol of hope not only for the United States, but also for the world, a father who loves his children dearly, and a man of humanity, will spare a little time to resolve this forgotten problem.

Thank you!

I returned to Hong Kong from Vietnam and Cambodia with a new understanding of and appreciation for public international law and global justice. This may not have been what I was necessarily “looking for” when I came here this semester, but is certainly something that I have “found here.” I am still a student, however—we all are and always will be, no matter our graduation dates and degrees—and can only hope the education I receive after graduation continues to provoke, challenge and inspire me as much as that which I have learned here and in the BLS classrooms has. As the quotation from “The Quiet American” continues, “They say you come to Vietnam and you understand a lot in a few minutes, but the rest has got to be lived.”

Spotlight On: Prof. Aaron Warshaw

By Nicolette Lotrionte '13


Patience and determination. These are the two words of advice that Professor Aaron Warshaw would offer to students looking to pursue a career in law. And judging from his successful career, it appears obvious that these are two words that Warshaw lived by.

Warshaw, a Brooklyn Law School graduate, currently teaches an International Legal Writing course to first-year students. Although his career has not always led him in the international direction, it is an area of law that he has been interested in for a long time.

As a 1L at BLS, Warshaw had only a vague understanding of what international law actually was. But that changed once he was selected for the Brooklyn Journal of International Law, where he eventually held the position of Editor-in-Chief.

One aspect of international law that Warshaw was particularly interested in dealt with conflict of law among countries and transnational issues.

“The thing that I liked most while I was on the journal,” he says, “is that international law is a very unsettled area, things are still changing.” Warshaw addressed an aspect of this in the note he wrote for the Journal of International Law.

“I wrote my note about defamation law as it relates to European Union treaties and how it relates to cross-border publication,” he said. This means “that if The Wall Street Journal publishes in Australia and it is read online by someone in Australia, do they sue for defamation in Australia or in New York?” In fact, this was a real case. Warshaw’s question was answered when the High Court in Australia held that it was permissible to sue The Wall Street Journal in Australia.

It seems that Warshaw is very happy with where his BLS education and career have taken him so far. Prior to his current position, an associate in the Labor and Employment Department at Seyfarth Shaw LLP, Warshaw worked as a law clerk in the Eastern District of New York. He says he is mostly drawn to areas of law that are “intellectually engaging,” such as international law. His work now, which revolves around employment law, appeals to him in the same way. The work is intellectually engaging, the case law is not settled, and new decisions are constantly coming down. Although his position now has very little to do with the international realm, Warshaw says that it has given him a leg-up when it comes to teaching.

“In some ways, having some distance from international law gives me a perspective for my legal writing class,” he says. “Now I can really look at the issues the students are addressing.”

Warshaw has plenty of advice for students who want to pursue a career in international law, such as to take a straightforward international law class in the fall semester of 2L year. International law is a different field with a different language and different courts. A course that provides a survey of international law is helpful.

As for law students in general, “first and foremost, make good contacts with professors or professionals within your field, because opportunities come through the relationships that you build, as much as your demonstrated ability as a student,” he adds.

China Creates Panel to Scrutinize Foreign Investments

By Kan Zhang '13

On Feb. 3, the General Office of China’s State Council issued the Circular on Establishing a Security Review System for Mergers and Acquisitions of Onshore Enterprises by Foreign Investors (the “Circular”), which just became effective on March 5.

The panel functions similarly to its U.S. counterpart, the Committee on Foreign Investment in the United States (CFIUS) under the U.S. Department of the Treasury. Unlike CFIUS, which is chaired by Secretary of the Treasury and includes representatives from 16 U.S. departments and agencies, China’s panel is jointly headed by two of its ministry-level agencies, the National Reform and Development Commission (the agency in charge of economic policies) and the Ministry of Commerce (the key regulator of foreign investment). Other ministries will be called upon for consulting purposes based on each particular transaction.

The Circular sets out the scope, content, working mechanism and procedure for merger and acquisition security review. It also provides a degree of clarity and certainty to foreign investors in cross-border acquisitions. However, as “national security” can be broadly interpreted, relevant Chinese authorities will certainly have discretion to the interpretation of some provisions and the scope of application of such provisions.

Coming under scrutiny are foreign mergers and acquisitions of domestic enterprises in certain obvious sectors such as military industry and industry related to national defense and security. The Circular also applies a concept of “actual control” in terms of foreign merger and acquisition of domestic enterprises in sectors such as major agricultural products, major energy and resources, infrastructure, transportation services, key technologies and major equipment manufacture. It is interesting to note that any foreign merger and acquisition of domestic enterprises “located near major and sensitive military facilities” is subject to review, while most of such facilities are in fact unknown to the public. Moreover, the Circular does not define a limit as to how far from military facilities it must be, allowing this provision to create much uncertainty for foreign investors as well as greater discretion in their review for the Chinese regulators.

The acquisition of actual control by foreign investors means foreign investors become the holding shareholders of or actually control a domestic enterprise after the merger and acquisition. The Circular defines “actual control” to the extent possible. It adopts a hard threshold of direct or indirect holding of 50 percent or more of equity of the target entity. Percentage of foreign ownership is calculated in aggregate. In addition, certain transactions that fall short of the 50 percent threshold but where foreign investors will obtain the actual control over the target’s business are also subject to review. Such transactions include those where foreign investors hold sufficient voting right to influence the resolutions to be adopted by the shareholders meeting or the board of directors and other circumstances where foreign investors actually control a domestic enterprise’s operational, financial, personnel, technology and other matters. Such non-exclusive list is seen as a development from previous regulations on acquisition of domestic enterprises by foreign investors. For instance, the 2006 Provisions Concerning the Acquisition of Domestic Enterprises by Foreign Investors, which is the predecessor regulation on the same subject, only uses the percentage of equity holding as a threshold. The Circular undoubtedly will be putting much stricter limitations on foreign investment.

As for how the U.S. has responded to Chinese investors, since China started expanding its offshore investment into the U.S., CFIUS has been reported to be closely scrutinized deals involving Chinese acquirers and challenged several. To name a few: Lenovo’s acquisition of IBM’s personal computer and laptop unit; state-owned China National Offshore Oil Corporation’s failed acquisition of UNOCAL (2005); Huawei abandoned its bid to acquire a 19 percent stake in 3Com after coming under politically-charged CFIUS scrutiny (2008); Northwest Nonferrous abandoned its bid to purchase Firstgold, a Nevada mining company, after CFIUS indicated that it would recommend that the President block the deal (2009); Tangshan Caofeidian Investment Corp withdrew notification of its bid for Emcore’s fiber optics division in light of CFIUS’s objections (2010); members of Congress unsuccessfully lobbied CFIUS to block Anshan Steel-Steel Development Company’s purchase of a minority stake in a reinforcing bar manufacturing plant (2010); CFIUS is currently reviewing AVIC International’s purchase of Teledyne’s general aviation piston engine business.

Coincidentally, on the same day that China’s State Council released the Circular, CFIUS reportedly proposed its recommendation that President Barack Obama block China Huawei’s $2 million acquisition of 3Leaf System assets. The impact that the Circular will have on U.S. investment in China and its effect on U.S.’s attitude towards Chinese investors remains to be seen.

Additional information can be found at: http://www.ssd.com/new_review_system_for_foreign_investor_m&a_deals_with_domestic_enterprises.

ICC To Investigate War Crimes in Libya

By Lauren Maccarone '11


On Feb. 26, the United Nations Security Council unanimously adopted Resolution 1970 referring the situation in Libya to the Prosecutor of the International Criminal Court. Since Libya is not a State Party to the Rome Statute, the referral provides the basis for ICC jurisdiction over alleged crimes committed in Libya since Feb. 15. The resolution, like Resolution 1593 on Darfur, purports to grant exclusive jurisdiction over non-Libyan nationals of countries that are not ICC States Parties to the courts of their nationalities, subject to waiver, and bars the UN from bearing any costs associated with the referral. On March 3, the Prosecutor announced that his office decided to open an investigation into alleged crimes against humanity committed in Libya.

Background of Conflict
In February of 2011, protests broke out in various parts of Libya to oppose the 41-year totalitarian rule of President Muammar el-Qaddafi. Qaddafi blamed these protests on foreign colonialist influence and attempted to quell the protesters with a violent crackdown. On Feb. 25, he allegedly ordered his security forces to begin air raids on the unarmed civilians congregating in the streets. Soon after, he reportedly conscripted mercenaries from neighboring countries such as Chad, Sudan and Niger to attack the unarmed civilians on the ground. His alleged actions and the resulting death toll led to a wave of public outcry around the world. The international community quickly responded with several actions in the United Nations, including in the Security Council.

International Response
The Feb. 25 air raids prompted the UN Human Rights Council to suspend Libya’s membership and to pass a resolution calling for an independent commission of inquiry to investigate the alleged human rights violations. The following day, the UN Security Council passed a unanimous resolution “deploring the gross and systematic violation of human rights, including the repression of peaceful demonstrators.” More importantly, it invoked its Chapter VII powers, responding to threats to international peace and security, to refer the situation in Libya from Feb. 15 to the ICC Prosecutor. This is the first time that the Security Council has unanimously referred a situation to the Court under Article 13(b) of the Court’s Rome Statute.

The United States strongly supported this referral. U.S. Ambassador Susan Rice stated in a press conference that the U.S. was “very pleased with the outcome and also with the unity of purpose that the Council has showed in acting quickly and decisively in accordance with its responsibility to protect.” Then, on March 1, the U.S. Senate passed its own resolution explicitly supporting Security Council Resolution 1970.

These actions demonstrate that the United States is willing to support the ICC where this support also bolsters its national interests. Despite the condemnation of the ICC referral by some conservative critics in the U.S., it could be a starting point for accelerating the growing relationship between the U.S. and the ICC.

Acceptance by the ICC
An Article 13(b) referral invites, but does not require, the Prosecutor to open an investigation into the country situation in question. However, on March 3, the ICC Prosecutor, Luis Moreno-Ocampo, announced the Court’s acceptance of the Security Council’s referral of the situation in Libya. Under the Rome Statute, the Prosecutor shall proceed with an investigation referred to it unless there is no reasonable basis to believe that crimes falling within ICC jurisdiction have been committed. He may conduct a formal investigation without the Pre-Trial Chamber authorization required in other circumstances. Here, a preliminary examination of the violence committed against civilians in Libya provided sufficient evidence that crimes against humanity were committed. Thus, the Prosecutor’s decided to open an investigation.

Once the Prosecutor feels he has accumulated enough evidence, he will ask the judges of the Pre-Trial Chamber to issue an arrest warrant for Qaddafi and possibly others alleged to have committed atrocity crimes. Under Article 58 of the Rome Statute, an arrest warrant is proper where the Pretrial Chamber is satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court, and the arrest of the person seems necessary to ensure the person’s appearance at trial, to prevent obstruction of the proceedings, or to prevent continued commission of the crime.

Next Steps
Given their recent commission and the wide breadth of international coverage on the alleged crimes, the Prosecutor should have little difficulty meeting his burden of proof. Yet there are number of questions that still surround the case.

For one, the Prosecutor must determine whether to limit his investigations to crimes against humanity as opposed to expanding them to prepare for the inclusion of war crimes charges. When the Security Council referred the situation in Libya to the Court, the fighting between Qaddafi’s army and the rebel forces amounted only to an internal revolt. Article 8(2)(f) states that the war crimes provisions within the Rome Statute are not intended to apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence,” such as the case is here. However, the severity of the fighting has greatly increased since that time.

In fact, on March 18, the Security Council authorized military action led by Britain, France and the United States, against Qaddafi’s forces to quell their barrages against civilians. Should the conflict escalate into an internal armed conflict (known within the Rome Statute as a “conflict not of an international character”) the Prosecutor may consider additional charges such as war crimes.
Second, many doubt the Court’s ability to capture Qaddafi even after the issuance of an arrest warrant. The ICC has experienced great difficulty in arresting Omar Al-Bashir of Sudan and the fact that he is still at large years after his warrant’s issuance seriously undermines the Court’s goal to end impunity. Many are wondering, “Does Qaddafi really have anything to fear?” While it is hard to assure arrest, the Security Council’s unanimous referral of the case binds all members of the United Nations to arrest Qaddafi in the case that he is present on the state’s territory. The Prosecutor should work quickly in getting a warrant to prevent his assassination or flight into hiding, and thus increase the Court’s chances for arrest.

A final concern stems from the cost of this unforeseen investigation. The ICC has already decided on its budget for the fiscal year and there is little room for the case in Libya. The President of the Court, Judge Sang-Hyun Song, publicly confirmed that there are no budgeted funds available for the case. Worse still, is the fact that Security Council Resolution 1970 contains a reservation that prevents the UN from contributing funds to the case. As a result, the Court may ultimately need to dip into its contingency funds in order to move forward with the trial.

Conclusion
Despite the aforementioned hurdles, the referral of the situation in Libya to the Court is a positive reflection of the Court’s growing legitimacy as an international tribunal. It is important that the ICC and its supporters use this case to prove the Court’s ability to aid in fighting impunity and to bolster its global reputation.

This article by Lauren Maccarone was originally published for the American Non-Government Organizations Coalition for the International Criminal Court.