One year after Gaza War, causes of the conflict remain unaddressed



One year after the Israeli onslaught on Gaza, the territory is still strangled by a comprehensive, tightening siege. And the consequences of last winter’s war, which ran from December 27th to January 18th, have been few. Despite the horrific outcomes and images of civilian death and destruction caused by Israel, war criminals are still at large, and numerous reports by well-known human rights organizations and independent international bodies have done little to effect accountability and freedom.

Egypt has started to build a seven-mile-long underground steel wall with the assistance of the United States Army Corps of Engineers. Israel has further defied international norms by dismissing the UN’s Goldstone Report on abuses of humanitarian law during the conflict offhand. It refuses to conduct an independent inquiry into the Report’s findings. Israel has also been trying to prevent foreign judicial inquiries into such crimes.  

The defenders of Israel’s strategy continue to employ the same mundane arguments they have used in the past. These arguments divert the discussion from substance to procedure by claiming bias and selectivity on the part of international bodies, or by using ad hominem attacks. This time, however, the attacks won’t work as they have in the past.

The internationally-revered jurist and self-proclaimed Zionist Judge Richard Goldstone headed the United Nations fact finding mission on the Gaza onslaught, which produced the Report that bears his name. He insisted that the mandate of his committee be expanded to include crimes committed by both Israelis and Palestinians. The Report is not only explicit in its criticisms of both Israel and Hamas, it even assumes that Israel acted in self-defense. Considering this, it is difficult to believe that the Israeli government’s allegations of bias and its reasons for refusing to engage with the Report are sincere.

But critics of the Goldstone Report trivialize the gravity of the war crimes it documents by claiming that civilian deaths and destruction of infrastructure were not a matter of policy, but of the misconduct of a minority of soldiers. This explanation is dubious for several reasons. First, while one soldier who stole a credit card from a Palestinian home was prosecuted, no soldiers were punished for killing Palestinians. The Israeli military has failed to publicly hold these so-called “rogue soldiers” accountable. Second, the large numbers of casualties, the enormous and wanton destruction of property and the targeting of civilian infrastructure by the Israeli army in the 2006 war on Lebanon and the onslaught on Gaza indicate that these attacks are deliberate. As the Report mentions, many statements by Israeli officials support this conclusion. The Israelis have even codenamed their strategy: the Dahiya Doctrine.


Yet legitimate complaints that Israeli aggression against Gaza has been disproportionate or is counter-productive are not effective rebuttals to the Israeli government’s self-justifications. In fact, these lines of argument presuppose that Israel was, at least in part, justified in its “defensive security operation”. When focused on these objections, the dispute revolves around the numbers of Palestinian civilians Israel would have been “justified” in killing.

Israel was not justified in its aggression for more profound reasons than these arguments reveal, regardless of the horrendous outcome of the onslaught. (Around 1400 Palestinians killed were and 5320 wounded and thousands of houses destroyed or damaged.) Israel is not a peace-seeking state acting in self-defense and Hamas is not an irrational fundamentalist or terrorist movement that wants to annihilate Israel. As I will argue below, both perceptions are, at base, crucially misleading.

Israel has proven throughout its history that it has an expansionist plan to control as much Arab land as possible. Israel never acknowledged its status as an occupier and thus refused to apply the Geneva Conventions, claiming that the Palestinian territories are contested areas. It even refers to Palestinian territories by their Biblical names: Judea and Samaria. Israeli settlements (121, plus those in East Jerusalem) and their “natural growth” (479,000 settlers) aim at creating facts on the ground that enable Israel to control as much land as possible. Credible estimates suggest Israel has invested $100 billion in developing Jewish-only infrastructure inside the West Bank. A state that intends a temporary occupation would hardly make such investments.

As historian Avi Shlaim demonstrated in his book The Iron Wall, Israeli governments have worked under a strategy according to which time is on the Zionists’ side: the natives will be overwhelmed by the power of the settlers, ultimately internalizing their subjugation and capitulating to the new reality of power. This means there is no need for peace agreements, and  explains Israel’s rejection of numerous peace deals through its history. Israel’s refusal to engage with the Arab peace proposal emerging from the Beirut summit in 2002 was only one of the most recent examples of this policy.

The history of Palestine, then, is the story of the escalation of Israeli power. The International Court of Justice recognized this in its July 2004 ruling on the construction of Israel’s “separation wall”. The ICJ considered the wall part of an Israeli policy to alter the demographic composition of the Occupied Territories, a policy tantamount to a de facto annexation. The ICJ emphasized the detrimental effects of these policies on the right of the Palestinian people to self-determination. Israeli policies make the prospects for the realization of this right unrealistic.


Even the withdrawal from Gaza in 2005, the so-called disengagement plan, sought to entrench the colonization of the West Bank. Then Prime Minister Ariel Sharon’s senior adviser, Dov Weisglass, described the withdrawal from Gaza, in an interview with Haaretz in August 2004, as “the freezing of the political process”:  “And when you freeze that process, you prevent the establishment of a Palestinian state and you prevent a discussion about the refugees, the borders and Jerusalem. Effectively, this whole package that is called the Palestinian state… has been removed from our agenda indefinitely. And all this with [President Bush’s] authority and permission… and the ratification of both houses of Congress.”

Thus, describing Sharon’s withdrawal from Gaza as a prelude to further withdrawals and a peace agreement is patently false.

Note that the withdrawal from Gaza did not mean that Israel relinquished control of every aspect of life in the territory. A report by the Israeli organization Gisha listed the administrative aspects which Israel continues to control there: not only its territorial waters, airspace, border crossings, fuel, and electricity, but also Palestinians’ population registry (which determine who is a “resident” of Gaza), and even taxes and the transfer of tax revenues. Through these policies, notes Sara Roy, Israel continues to exploit and “de-develop” the Gazan economy as it has done for decades.


Ehud Olmert and Tzipi Livni have repeatedly said in recent years that they believe in the right of the Jewish people to all the “Land of Israel”, but they understand the need for “compromise.” Ironically, Hamas’s statements practically mirror these: it believes in the right of the Palestinian people to all the land of Palestine, but is willing to offer long-term cease-fire agreements. The fact that Hamas is willing to offer cease-fire agreements undermines the argument that it is committed to the destruction of Israel. But Hamas’s proposals have been dismissed by successive Israeli governments from Yitzhak Rabin on.

The fact that Hamas refuses to “recognize Israel” is also unsurprising. For one, a focus on Hamas’s charter, which states this policy, is a reductionist view, concentrating on an anachronistic document, which ignores the evolution of Hamas’s think
ing and politics since drafting the charter. Khaled Hroub, the author of a book on Hamas, has refuted such simplistic claims by discussing more recent documents produced by Hamas.

More importantly, what Israel is demanding is recognition of its ideological character as a Jewish state. In other words, Hamas is not asked to recognize Israel as a de facto entity; Israel already has de facto recognition by virtue of its tanks, warplanes and bulldozers. Rather, Hamas is asked to recognize the current, ethnically-exclusivist ideological character of Israel and the legitimacy of the Zionist project that displaced the Palestinians. Hamas is asked to renounce the history of the Palestinian people as a precondition for negotiations. 

From a Palestinian perspective, recognizing Israel as a Jewish state means both rejecting the Palestinian right to return and perpetuating the subordination of the Palestinian citizens of Israel. Rejecting the right to return before the negotiations even start aborts such negotiations or renders them meaningless. Thus, the fact that Hamas rejected Oslo and refuses to recognize the exclusive Jewishness of Israel has little to do with religious fundamentalism.

In any event, it’s ironic that the leaders of Egypt, Jordan and Saudi Arabia are corrupt dictators, but they are seen as “moderates”. Hamas, on the other hand, has not been shown to be corrupt, was elected democratically and has never attacked any targets outside Palestine and Israel. Nonetheless, it is considered “extremist.”  The criterion for “extremism” is not disregard for human rights, otherwise the states of Egypt and Saudi Arabia deserve the same label. Rather, the criterion is the rejection of Israeli dictates.

At the same time, Israel and the United States have also fragmented Palestinian politics by actively encouraging so-called “moderates” and isolating so-called “extremists,” aborting attempts to form a unity government. As Vanity Fair reported in April 2008, Hamas was reacting to a staged coup d’état when it took control of Gaza. The “moderates” in Ramallah refused Hamas’ call for a unity government under pressure from the previous Bush administration and Israel.

In fact, ever since Hamas came to power in January 2006, through democratic elections, Israel had boycotted its government, withheld Palestinian tax money, imprisoned and assassinated dozens of Hamas’ parliament and cabinet members, imposed a tight blockade that resulted in a humanitarian crisis, and made the lives of 1.5 million Palestinians (52% of whom are children) living in what is effectively an open-air jail, making them totally dependent on Israeli political demagogues and security technocrats. Finally, Israel violated the June 2008 cease fire by attacking a tunnel under Gaza’s border in November 2008, killing Hamas members in a prelude to its large-scale onslaught on Gaza that was long in the making.

Both the 2006 Lebanon war and the Gaza onslaught should be understood in this context. Israel wanted to make any opposition and resistance to its hegemony costly in terms of civilian life and thereby to strengthen the so-called “moderate” camp. According to this logic, only when the Arabs and Palestinians recognize the impossibility of defeating Israel will they accept the fait accompli designed by Israel. Thus, Israel did not attack Gaza to end Hamas’ rocket attacks. This could have been achieved by observing the cease-fire agreement and lifting the siege that is strangling Gaza. Rather, it aimed at crushing any resistance to its domination.

Those who are busy justifying Israeli actions as if Israel were a well-meaning occupier want us to focus on Palestinian violence instead of the siege; on the symptoms (resistance) rather than the root cause of the conflict (the occupation), and on one Israeli soldier captured by Palestinians rather than the thousands of Palestinian prisoners. By doing so, they legitimate the oppressive actions of the longest military occupation since World War II, an occupation that even decides, as Haaretz reported in November 2009, when and whether Palestinians can eat pumpkin, chocolate or pasta.

Martin Luther King, Jr. wrote in his letter from Birmingham: “I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is… the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action’; who paternalistically believes he can set the timetable for someone else’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a ‘more convenient season’.”

Similarly, Palestinians should not be asked to wait for their freedom. Instead, all those who hold equality, freedom and justice dearly should support their struggle and help them obtain it.

Nimer Sultany is an S.J.D. candidate and a Palestinian citizen of Israel.

Hopes and Dreams: Martin Luther King and Obama’s first year



January 2010 is an occasion that is widely celebrated around the country, particularly in the African American community. Not only does it mark the birth of Dr. Martin Luther King, Jr., but it also commemorates the anniversary of the election of President Barack Obama ’91 a year ago this past week. For African Americans, there is a great amount of pride as they look upon these two historic figures and their contributions to equality and justice in America.  While celebrating Dr. King’s accomplishments, there is also the challenge in trying to assess the impact of President Obama’s election.

The first year of President Barack Obama’s presidency has produced mixed results.  One highlight was his early decision to select Senator Hillary Rodham Clinton, a fierce competitor during the Democratic primary, as Secretary of State.  It was a bold decision that reflected the President’s ability to both find talent among the ranks of a group of notable Americans and to move forward his foreign policy agenda.  His nomination of Eric Holder as the first African American Attorney General, former Harvard Law School Dean Elena Kagan ’86 as the first woman to serve as Solicitor General, and former Second Circuit judge Sonia Sotomayor as the first Latina on the Supreme Court, were all notable successes. 

Consistent with President Obama’s eager goal of getting things accomplished, he not only pushed for the bailout of the American financial system, helping it avoid falling into a financial crisis as significant as the Depression of the 1930’s, but also steered Congress through the adoption of an $800 billion stimulus package designed to find jobs for Americans throughout the United States and to create financial resources to address the stagnant economy. 

The President’s promise to draw down the number of troops in Iraq has also been successful, with U.S. Marines departing the country this week as the first wave of the withdrawal.  At the same time, President Obama did not meet his goal of closing Guantanamo in a year, and, in apparent contradiction to his opposition to the war in Iraq, escalated the war in Afghanistan. But all throughout his campaign, he had made it clear that the real fight, to stem the spread of Al Qaeda, is in Afghanistan.  His decision to send an additional 30,000 troops to Afghanistan to address the growing threat of terrorism drew unlikely support, but also much criticism from both sides of the political aisle. 

Also looking back on the legacy of Dr. Martin Luther King this month, we realize he was enormously accomplished in pushing forward the adoption of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and ultimately the Public Accommodations Act and the Fair Housing Act of 1968.  But Dr. King also encountered much controversy and objection to his agenda of non-violence and civil rights.  As we look at the success of the March on Washington on August 28th, 1963, we’re reminded that, less than a month later, four little girls were murdered in the 16th Street Baptist Church bombing on September 21st, 1963.  It took events like the March 1965 beating of John Lewis, who now serves as a Congressman from Georgia, for America to address issues of inequality, and President Lyndon B. Johnson’s overt approval of the Voting Rights Act of 1965. 

But President Obama’s first year and Dr. King’s legacy as a civil rights leader reveal very different attitudes toward war.  Dr. King was an advocate of non-violence, leading to his historic address at Riverside Church in New York in opposition to the Vietnam War. It drew harsh criticism, but it reflected King’s relentless commitment to non-violence even when it was an unpopular theme to pursue. Similarly, Obama was one of the early opponents of the Iraq War. He sharply criticized the war in 2002, less than one year after the anniversary of the death of over 3,000 innocent Americans at the World Trade Center, in Pennsylvania, and in the Pentagon. 

But their contrasting views on war were most evident after President Obama’s decision to increase the level of troops the U.S. maintained in Afghanistan, at the same time he was awarded, like Dr. King, the Nobel Peace Prize. While Dr. King was also criticized for receiving the Nobel Peace Prize at a young age, it was remarkable how much he had furthered the agenda of civil rights in his 39 years before his assassination.  President Obama has had the same goals in mind, but his agenda has taken one step back after attempting to push forward access to greater opportunity and equality. In his remarkable speech as the recipient of the Nobel Peace Prize, he defended the idea of a “just war”, and received the unlikely support of people such as former Alaska Governor Sarah Palin, Newt Gingrich, and Henry Kissinger. 

President Obama’s first year in office was also a mixed record for African Americans.  While the diversity of the President’s political appointments have been lauded – President Obama has pursued an aggressive effort to create a very diverse cabinet, appointed a diverse group of federal judges at the District and Circuit court levels – there has been much concern about the slow state of economic development, the lack of structured efforts to increase the opportunities for African Americans in urban areas, and failure to fulfill an expected goal of greater diversity and accomplishment throughout the nation.  And yet, as we look beyond the limited success that has directly affected the African American community, President Obama has pushed to ensure greater support for minority owned businesses, and for a race to the top for educational reform and a health care plan, at best a fragile hope at the moment, designed to provide coverage to an unprecedented number of African Americans.

The President’s ambition has not been questioned. His ability to achieve many of his lofty goals in the face of fierce resistance from both Republicans and moderate Democrats only reinforces the challenges he will face during the next four years and beyond. What really stands out is the President’s ability to take bold positions, push multiple agendas at the same time, and to persuade doubters, as he undoubtedly will have in his State of the Union address this week. The same enthusiastic focus on multiple issues will guide his presidency for years to come. 

While President Obama cannot be satisfied that he has accomplished as much as he had ambitiously sought, it is certainly true that he has developing unprecedented levels of global support for America’s move from isolation to an inclusive agenda. It will take decades to fully evaluate the impact of his election and accomplishments, but it’s hard to doubt that his efforts to improve America’s global relationships, and to invest in its economy, not only face great challenges, but that, in time, will bear fruit.

Charles J. Ogletree, Jr. ’78 is the Jesse Climenko Professor of Law at Harvard Law School.

Citizens United does not open the floodgates to more corporate money


In its decision in Citizens United v. Federal Election Commission on January 21, the Supreme Court upheld the disclaimer and disclosure provisions of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold law) while at the same time invalidating a ban on electioneering communications by corporations and unions, political speech that the Court said the government may not suppress simply because of the speaker’s identity.

Citizens United has already caused an uproar. President Barack Obama ’91 has said of the decision that he “can’t think of anything more damaging to the public interest.” Justice Stevens wrote in his partial dissent that the Court has rejected a century of history of regulating corporate electioneering, a claim that many pundits have taken up. In all, the critics have painted a picture of Citizens United as a dangerous innovation that will allow unbridled abuse of the electoral system by corporations and shake the very foundations of our democracy.

These hysterics are overblown for a number of reasons. First, the regulation that the Court overturned covered only a relatively limited category of advocacy. The provision that the Court declared unconstitutional prohibited corporations from using their general treasury funds to pay for “electioneering communications.” Electioneering communications are defined as any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is broadcast within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running for office.

Unless the election law statute were to be read so broadly as to make the “electioneering communications” language redundant, this restriction did not even touch commercials broadcast outside the specified window before an election, political appeals in print such as newspaper advertisements and books, or internet campaigning tools such as the YouTube videos and Google ads that have become so important in recent elections.

Even before Citizens United, corporations were not prevented from broadcasting so-called “issue” ads on TV and radio right up to elections so long as they did not expressly support one candidate or another, even if the intentions behind the ads were thinly veiled. Although electioneering communications certainly play a major role in modern political campaigns, it is hard to imagine these organizations gaining dramatically more influence as a result of this decision, given the numerous avenues available in the past for corporations and unions to influence the electorate.

Furthermore, the notion that the Citizens United decision runs counter to a century of regulation of corporate electioneering is not, strictly speaking, accurate. The practice of prohibiting corporations from making political contributions does indeed date back at least to the Tillman Act of 1907 and is unaffected by this ruling. But the line of cases which allowed the regulation of independent expenditures by corporations is of much more recent vintage.

Citizens United overturns the 1990 case Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) which upheld a Michigan statute prohibiting corporations from making independent expenditures supporting or opposing state candidates.  The court’s holding in Austin that such expenditures could be restricted put that decision in tension with the 1976 case Buckley v. Valeo, 424 U.S. 1 (1976) in which the Court distinguished between direct contributions to political campaigns and independent expenditures and held that a limit on independent expenditures was unconstitutional. The Bipartisan Campaign Reform Act, which restricted independent expenditures at the federal level, was only enacted as recently as 2002.

Some of the criticisms of the Citizens United decision ignore the ways in which its impact could be mitigated through means that do not implicate speech so strongly. For instance, Justice Stevens worries in his dissent that some corporations might spend money in support of candidates whom their shareholders oppose. But corporate laws can be changed to require permission from shareholders before a corporation supports particular candidates. Members of labor unions already have the right to choose not to have their dues used to support political causes.

Even if this decision did signify the sea change that its detractors suggest it does, Citizens United would still have been rightly decided based on First Amendment law. First Amendment protection is generally considered to be most necessary in the domain of political speech. The Supreme Court has repeatedly and consistently held that First Amendment protection of speech rights extends to corporations, stating in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) that, even in a political context, speech does not lose its protection “simply because its source is a corporation.” Because the free speech right enshrined in the First Amendment is so fundamental to our democracy, any law which places a restriction on that right must survive strict scrutiny by being narrowly tailored to serve a compelling state interest. The government interest stated in Austin is that of avoiding the “corrosive and distorting effects of immense aggregations of wealth” on the political process. But the Court stated in Buckley that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Even if Buckley had allowed this rationale, the restriction on corporations would be both under- and overinclusive. Such restrictions would not stop exceptionally wealthy individuals from attempting to influence elections, but they would freeze out both nonprofit corporations and the small for-profit corporations with revenues of under $1 million which make up the vast majority of all corporations.

An argument can be made that the Court showed a lack of judicial restraint by choosing to overturn the precedent established in Austin. But in truth, it is Austin that is the outlier in regards to First Amendment precedent. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Buckley, in fact, had suggested just the opposite. Two and a half years ago, the Court arguably foreshadowed a move in this direction by upholding an as-applied challenge to the prohibition in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) and the decision in Citizens United merely brings First Amendment jurisprudence back in line with the bulk of the case law. Protecting the ability of corporations and unions to voice their support for candidates may not be politically correct, but it is legally so.

Nicholas Joy is a 2L.

Citizens United upholds institutional corruption



What started as a 90-minute political campaign documentary against then- presidential candidate Hilary Clinton ended in the Supreme Court with a decision that was described by some critics as one of the worst since Dred Scot. “Hillary: The Movie,” was produced by Citizens United, a conservative nonprofit, as part of its campaign against the former democratic presidential aspirant, and was released during the Democratic presidential primaries in 2008.

The judgment, which relaxes the restriction on power of the corporations to directly spend on advertising during federal elections, was described by Harvard law Professor Lawrence Lessig as “proverbial fuel on the fire”. He notes that the issue is not whether corporations are silenced or their First Amendment right to free speech upheld. More importantly, the outcome is an assault on democracy, capable of promoting a system that will further erode the public trust in their elected officers. Lessig cautioned that decision would undermine the participation of the citizens in the democratic process and that it gives unfair advantage to corporations,  whose financial prowess will give them a stronger voice than the electorate.

Lessig heads Harvard’s Safra Center for Ethics, which studies the intersection between politics, interest groups and corruption in the U.S. politics. As part of the reading for a course convened by the program, I came across a very interesting article by an expert on political corruption, Zephyr Rain Teachout (found in the Cornell Law Review, Vol. 94, No. 341, 2009, for those who are interested), which I found very relevant to the Court’s decision in Citizens United.

Teachout writes that the Framers of the Constitution were obsessed with corruption and saw it as one of the greatest threats to democracy. They designed the system in such a way that corrupt leaders will not only loose their positions, but also their reputation. The Founding Fathers built mechanisms into the Constitution to safeguard democracy by ensuring transparency, accountability and citizens’ participation in the political process. The independence of the political office holders from other special interests was of paramount importance to the Framers.

Teachout writes that “corruption was discussed more often in the constitutional convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened. Madison recorded the specific term corruption fifty-four times, and the vast majority of the corruption discussions were spearheaded by influential delegates Madison, Moris, Mason, and Wilson. The attendees were concerned about the corrupting influence of wealth, greed, and ambition.” It is not an overstatement to say that the Framers actually saw the Constitution as an instrument to fight corruption.

The Framers defined political corruption to include “self-serving use of public power for private ends, including, without limitation, bribery, public decisions to serve private wealth made because of dependent relationships, public decisions to serve executive power made because of dependent relationships, and use by public officials of their positions of power to become wealthy”.

Their efforts to curb corruption in the political process is visible in issues including the regulation of elections, term limits, limits on holding multiple offices, limitations on accepting foreign gifts, the veto power, the impeachment clause, and provisions for the separation of powers, among other measures, with a view to ensure that leaders represent the interest of their constituency and not personal interests. In the words of Teachout, “taking seriously the architecture [of the Constitution] requires more than passing knowledge of what motivated the choice of architecture. Political corruption is context without which other specific words don’t make sense; it is embodied in the text itself through other words that can’t be understood without understanding corruption”.

History has shown that when leaders put their self-interest above those who elected them, it undermines the trust of the people in the process and inevitably leads to collapse of the democratic system. The Roman and Greek empires are classic examples. The danger of democracies leaving political corruption unchecked is succinctly captured by Teachout: “voters will stop voting, people will stop running for office, and citizens will stop making serious efforts to read news and understand the public issues of their day, because they will believe that such efforts are futile,” she writes.

In McConnell v. FEC, 540 U.S. 93,  which the Court overturned in Citizens United, the Court had made the following powerful comments:

“Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the office holder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means to prevention is to identify and remove the temptation.”

Ignoring the threat of corruption to democracy is, therefore, a serious problem that cannot be taken lightly. I agree with Teachout when she writes that “internal decay of our political life due to power-and-wealth seeking by representatives and elites is a major and constant threat to our democracy. History provides some powerful tools to allow us incorporate the anti-corruption principle into the constitutional law of democracy. We should pay attention to it”. The recent decision of the Supreme Court ignores this history, undermining the Constitution’s efforts to curb corruption at the highest level.

The 5-4 conservative majority decision was delivered by Justice Anthony Kennedy ’61, and concurred in by Justice Samuel Alito, Chief Justice John Roberts ’79, Justice Clarence Thomas and Justice Antonin Scalia ’60. Justice Sonia Sotomayor began her Supreme Court career with a dissent. She joined four other liberal justices in disagreeing with the majority decision. The dissenting judgment delivered by Justice Stevens severely criticized the majority court for ignoring the dangerous consequence of the decision on democracy:

“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics,” Justice Stevens wrote.

The decision overruled a decade of precedent laid down in McConnell, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002, which restricted campaign spending by corporations and unions, as well as Austin v. Michigan Chamber of Commerce, 494 U.S. 652, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates.

In his weekly address on Saturday, President Barack Obama ’91 criticized the decision as “a huge victory to the special interests and their lobbyists”. The President expressed his disappointment with the ruling,  saying that he could not “think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections”.  He noted that even foreign corporations would now have say in U.S. politics; candidates that disagreed with corporations would come under serious
attack from the corporations during election.

Obama went on to observe that “all of us, regardless of party, should be worried that it will be that much harder to get fair, common-sense financial reforms, or close unwarranted tax loopholes that reward corporations from sheltering their income or shipping American jobs offshore”. He also cautioned that the decision makes it “more difficult to pass common-sense laws” to promote energy independence or expand health care.

The danger is clear!

The competition will now be intense among the corporations to producing the highest number of Senators and Representatives. Doesn’t this undermine the role of the public in the American democracy? Can individuals’ contribution to candidates now count in the campaign process? Will this be the last Congress that is truly elected by the people? How much would this decision contributing in promoting institutional corruption? I am sure most politicians will be more concerned about pleasing the corporations than their constituencies. It will be dangerous for any of them to fall out with the corporations.

American democracy has been a model to many countries across the globe. But the recent decision by the Supreme Court legalizing direct corporate participation which over turn a time revered restriction on the corporation is a worrisome development that deserve concern of anyone that is interested in American democracy’s future. Citizens United has introduced a new era in the U.S. politics.

The Constitution’s “We the People” has gradually become “We the Corporations”. Equating corporations with human beings undoubtedly undermines the participation of individual citizens in the political process. Election into political office under the new regime will largely depend on having the highest donation from the corporations. Corporations and their interests, which sometimes include interest of foreign nationals, will now have the strongest voice in the U.S. politics.

It will not be surprising to see Blackwater, Wal-Mart, Exxon and other corporations being better represented in Congress than citizens, whose interest and participation the Constitution seeks to preserve. This is an unwelcome development that anyone concerned about preserving the U.S.’ long-cherished democracy must oppose.

The matter of democratic integrity, transparency and accountability transcends the usual liberal/conservative or Democrat/Republican divide. It is an assault on democracy and negation of the text and original understanding of the Constitution as understood by the Founding Fathers, who strived to craft a document that would preserve democracy by protecting the interest of the electorate over and above other interests.

One might ask if there is anything Congress can do. Even before the decision was announced, an advocacy group called Change Congress was working to pursue the passage of a bipartisan bill called the Fair Elections Now Act. The bill is sponsored by congress men Sens. Dick Durbin (D-IL) and Arlen Specter (R-PA), and Reps. John Larson (D-CT) and Walter Jones (R-NC).

“Under this legislation, congressional candidates who raise a threshold number of small-dollar donations would qualify for a chunk of funding—several hundred thousand dollars for House, millions for many Senate races. If they accept this funding, they can’t raise big-dollar donations. But they can raise contributions up to $100, which would be matched four to one by a central fund. A reduced fee for TV airtime is also an element of this bill. This would create an incentive for politicians to opt into this system and run people-powered campaigns.”

President Obama said that he has instructed his advisers to work with Congress on a forceful, bipartisan response. In a New York Times op-ed, David D. Kirkpatrick wrote that because of the enormous threat of this decision to democracy, some members of Congress are working hard to introduce new laws that will, cure the defect by either

• Imposing a ban political advertising by corporations that hire lobbyists, receive government money, or collect most of their revenue abroad;

• Tightening rules against coordination between campaigns and outside groups so that, for example, they could not hire the same advertising firms or consultants; or

• Requiring shareholder approval of political expenditures, or even forcing chief executives to appear as sponsors of commercials their companies pay for.

What is really necessary need, as Professor Lessig puts it, is an alternative, “Not the alternative that tries to silence any speaker but an alternative that allows us to believe once again that our government is guided by reason or judgment or even just the politics of the people in a district and not by the need to raise money.”

Aminu Gamawa is an LL.M. student from Nigeria.

Citizens United: Umpires running amok



“Judges are like umpires. Umpires don’t make the rules; they apply them. They make sure everybody plays by the rules. But it is a limited role.” – Chief Justice John Roberts ’79, speaking to the Senate Judiciary Committee in 2005

That was then.

Now, the conservative wing of the U.S. Supreme Court defers neither to its own precedents nor to decisions by other branches of government. In fact, when stare decisis and our constitutional system of checks and balances interferes with their personal policy preferences, they shrug and legislate from the bench.

The Court’s opinion in Citizens United v. FEC is being hotly debated for its conclusion that corporations and unions are, constitutionally speaking, people whose free speech the Founders intended to protect. Will there be an unprecedented flow of money into politics from already powerful interest groups? Is this merely the faucet being turned up, or the breaking of the dam? Few doubt that this decision will have a profound impact on our country’s electoral landscape.

However devastating the consequences, though, how this Court arrived at such a myopic ruling may be even more disturbing.

Five of six Republican-appointed Justices abandoned legislative deference, overturning more than 100 years of campaign finance legislation. In the same opinion, they reversed the two leading opinions on campaign finance law. The law’s shape-shifting properties seem to prove the legal realist maxim that the Court is not final because it’s right, but right because it’s final. Somehow, though, old sayings are hardly comforting when it becomes so readily apparent that, if you want to win the game, all you have to do is change the umpires.

Justice John Paul Stevens found room in his 90-page dissent to make exactly this point. “The only relevant thing that has happened since Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and McConnell v. FEC, 540 U.S. 93 (2003) [which Citizens United overturned] is the composition of this Court,” Justice Stevens wrote. The sentiment was shared by Justice Sandra Day O’Connor, who stepped down from the Court in 2005 and was replaced by Justice Samuel Alito — a member of the Citizens United majority. Asked for her legal assessment of Citizens United, she cooly instructed her questioner to read McConnell, for which she authored the Court’s majority opinion.

Not only did the umpires vastly expand the strike zone in Citizens United, they went out of their way to do so by ordering reargument of the case. After the Court heard oral argument on the narrower issues raised by the parties last term, the Court ordered reargument on whether the existing series of campaign finance decisions was ripe for reconsideration. Put another way, the Court didn’t like what the pitcher was throwing, so they wiped it from the record books and ordered a do-over suited to their specific tastes.

Setting aside the Court’s proactive role in raising the issues that it wanted litigated, it should not go unacknowledged that the Court can and does reverse itself on occasion. In Brown v. Board of Education, 347 U.S. 483 (1954) for instance, the Court rejected the long-standing “separate, but equal” principle that under-girded Jim Crow. The Justices founded their uninimous opinion in constitutional principle of equal protection, and certainly not without considering the laudable goal of ending state-sponsored discrimination based on race.

Here, too, the Court announced an opinion premised on constitutional principles — namely, freedom of speech — in reversing itself. But the similarities end there.

In Brown, the Court’s conscience guided it to unravel legalized segregation, giving greater opportunity to school children across our country. Now, the conservative Justices have hijacked the levers of legislative power to protect corporations from having their “voices” muffled by Congress. In doing so, they have further entrenched special interest politics into our system of governance.

“While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics,” Justice Stevens observed.

Alas, these misguided umpires have run amok.

Chris Cassidy is the Assistant Director of Communications at the American Constitution Society and Criminal Justice Blogger at The views expressed here are solely attributable to Cassidy.

Cambridge, USA: A church closes on Christmas


We walked up to the church on Christmas Eve and ran smack into the TV cameras and a news anchor out in front.  What the heck was this?  The church is located in an area of Western Massachusetts small and rural enough to still be called a “village,”  with a population of less than 2,000 people and nothing in it that I can remember, except an old hitching post, with the date of the village’s founding stamped on it. 

The day had already gotten off to a weird start.  Never in my life had I taken a bus into my mother’s home town on Christmas Eve, and she had already managed to “lose me” in a town so small she doesn’t even get mail delivered directly to her house.  Yet now there were bright lights and a TV camera trained on a tiny little box of a small town church.  What could possibly be going on? The church’s Christmas pageant was usually good, but not that good.

“Jessica, you do the talking,” my great aunt joked, nodding toward the camera and elbowing me.

“Why are they here?” I asked her.

“This is the last Mass of this church.  It’s closing.” I could have used a little advance warning.

“Last Mass?” I asked.  By this point we are already crossing ourselves as we enter and search out a pew. This is our Christmas Eve Church, because it puts on a hilarious Christmas pageant before the Mass, and because the priest that travels here just to do the Christmas Eve service does touching things like pass out candy to the children, who in turn do funny things like run around the church triumphantly eating candy.  If that sounds mundane, you’ve never been to a Catholic Mass. It’s not usually a barrel of laughs.

We take a seat at the front of the Church, immediately behind the pews reserved for the pageant participants.  The place is even more packed than usual, and, in contrast to previous years, the heat is on, for a change. I suppose they figure that, for their last night in existence, they could afford to blast the heat.  That, and the fact that keeping it cold hadn’t exactly proven to be a strategy effective enough to keep them open.

They’ve printed a special bulletin just for the occasion, with “St. Bartholomew’s Parish, 130 years” on the cover and a history of the church inside.  My great aunt starts pointing out family members that I didn’t know I had.  “And this guy was out relative, and this one,”  she says, tracing her finger down the list of priests and deacons.  No wonder my mom is so religious, I think to myself, as I see just how many fruits on the family tree managed to wind up taking religious orders.  I’m having that “How come no one ever tells me anything?” feeling again.

“And this nun was our cousin. My father used to pick her up, and she couldn’t leave the convent without another nun.  Isn’t that crazy? And they had to sit in the backseat of the car; neither of them could sit up front with my Dad.  Your mom was terrified of them.”
“That’s true,” my mom agreed.  “I don’t know what it was but I was terrorized when they’d come over.  I’d last about a minute before running and hiding.”

Habited nuns had walked the rooms of my grandparents’ house, the house I was staying in that night?  Their rules about traveling with at least two women, not being able to drive, and their giant habits make me think of Saudi Arabia.  It wasn’t so long ago that Catholic religious orders’ practices resembled the practices of Muslims.  I remembered that before Vatican II, all of the girls and women had to cover their heads in Church.

The pageant was starting, sort of.  The place was buzzing with chatter, packed as it was and with the show running late.  The pageant coordinators were flying around the place looking like Hollywood agents stressed about their starlets being late for the red carpet, whispering to each other but offering us no explanation.  Finally it came—the priest ascended to the pulpit and announced,

“Well, there’s been some mix-up. Father so-and so had the time wrong.  I just reached him on his cell phone.  He thought that Mass started 30 minutes later.  So why don’t we just begin?”

The pipe organ began piping, and the choir began singing.  The monotone teenage readers assumed their positions on stage, and someone began reciting the words that set the scene for the little town in Bethlehem.  On cue, the angels began bouncing down the aisle.  The littlest angel was giving new meaning to bounce: literally skipping around the church, twisting her head in all directions to get a better view. The toddler was making her halo flap and her sneakers flash red lights with the impact.

Soon, baby Jesus was there, and he was actually a real live baby, and also apparently the cutest baby in the entire world.  As Joseph and Mary made their way around the altar pretending to look for a room at the in, Joseph’s staff got caught in the Christmas tree, a hazard I’m sure the original couple endured with as much grace.  As they assumed their positions center stage and facing the congregation, the angels traipsed down the aisle once again.

But the world’s cutest toddler angel was, apparently, related to the world’s cutest baby Jesus.  “Mommy! Hiiii!!!” she whispered, and as the angels walked right toward the holy couple and the others took a sharp left turn, she gleefully continued straight on, running towards her mother Mary to give her a hug and offer a kiss to the tiny Son of God.  As Mary fumbled with both children, it became clear it was going to be hard to separate the newborn from his new guardian.

As Mass started, the joyfulness quickly wore off.  The mood was tense, almost heartbreakingly sad.  No one there wanted this to be the last Mass.  Already there had been so many church closings; each weekend that I had gone home to visit my family my grandmother would read me the announcements from the local paper of which Chuch was closing here, which over there.  I hadn’t thought too much about it.  I knew that, in the U.S., Catholicism was faltering; that the dioceses everywhere were running out of money; and that the priesthood was hurting for new recruits.  This Church had “borrowed” a priest from a village in Nigeria because there were no locals to draw upon.

As the Mass wore on, the whole parish began crying.  I didn’t know what do to with myself; I’m entirely unused to seeing giant grown men standing in front of an altar decorated with Christmas flowers and bawling their eyes out.  My own family was tearing up, and I got swept up in the moment.  I only came to this church one night a year, but I knew that other people formed a community here each week, and that they were losing both that and a sense of their history.  In an act of rebellion, one of the parish organizers announced that, “Tonight’s collection will not go to the Dioceses, because they haven’t taken care of us.  It will go to Father’s church in Nigeria.”  I’d never heard such defiance coming from the altar before. 

“I really hope they don’t tear the building down,” my great aunt whispered.

It took 15 minutes to walk the 30 yards to the exit of the church. The parishoners had blocked the aisles greeting and hugging each other, mourning.  My great aunt was off conversing with relatives no one bothers to tell me are my relatives.  Later on, she would try and sketch out the family tree.

Back in the car, everyone let out a sigh.

“Did you see the angel’s shoes?” my mom asked.

“They lit up!”  my aunt responded.  We drove home.

India buries dissent in Kashmir


Mass graves found in Kashmir in 2008. 2,600 fresh graves were discovered last year.

Nearly 2,600 bodies have been discovered in single, unmarked graves and in mass graves throughout mountainous Indian-controlled Kashmir. The International People’s Tribunal on Human Rights and Justice (IPTHJ), an Indian Kashmir-based human rights organization, claimed that they found the graves in 55 villages during a three-year survey that concluded in November. Out of the 2,600 graves discovered by IPTHJ, they claim that 177 graves held more than one body. This report is one of the most damning pieces of evidence of the ‘crime against humanity’ perpetrated by the Indian armed forces in their occupation of the disputed territory of Kashmir.

The Muslim-dominated region of Kashmir has been a disputed territory right from the independence of India and Pakistan in 1947 and has been the source of conflict for more than half a century. While both countries claim the region, it is the civilian population of Kashmir that has paid the price of the conflict. In contested claims, more than 68,000 people have lost their lives in Indian-occupied Kashmir in the past two decades alone and have witnessed three conventional wars.

The latest report, if accurate, only goes to prove the brutalities encountered by the Kashmiris at the hands of the Indian armed forces. The Indian occupation of Kashmir casts a dark shadow over India’s shining image as the largest democracy in the world. Indian democracy prides itself on freedom of speech and expression and the right of its people to dissent. But the manner in which the dissent of the Kashmiri population has been crushed illustrates that India still has a long way to go to be a real functional democracy. Over the past couple of decades, it has been alleged by various human rights groups that the Indian military has killed a large number of Kashmiri youth in “fake encounters”, dubbing them “Pakistani terrorists”. In April, 2008, Amnesty International appealed to the Indian government to investigate hundreds of unidentified graves — believed to contain victims of unlawful killings, enforced disappearances, torture and other abuses — to no avail.

The starkest feature of these recent findings is that there was no coverage of the report by the Indian media. Having stumbled upon this shocking report in the New York Times when sitting in the U.S., I sought the perspective of the Indian media. To my disbelief and horror, there was not even a single mention about this report in all the leading Indian dailies and news channels, while all of the major international media groups had covered the story.

So what does this tell about Indian democracy? The truth of brutalities in Kashmir have always been kept a secret to the nation. The Indian state has, for decades, been suppressing the largely non-violent dissent of Kashmiri people against the militarization of Kashmir. The Indian state has used the divisive propaganda of militancy and religion as tools to suppress any kind of dissent against its forced occupation of the region. The Indian state has tried to keep not only the international community in the dark about its hostilities toward Kashmiris but also the local Indian population, by controlling media reports of the real situation on the ground in Indian occupied Kashmir.

A democracy which suppresses dissent by means of violence is the most vulgar form of democracy, if at all it can be called ‘democracy’. The successful attempt by the Indian state to keep the Indian populace in the dark about such damning reports questions the validity of its claim to be the largest functional, pluralistic democracy.

Kashmir is not the only place where the Indian government has responded with violence in the wake of dissent. The rising tide of the left-wing Indian Maoists group (termed “Naxalites”), predominant in East India, have constantly faced violent retaliations for their dissent against the capitalist regime of the Indian state. The people of neglected regions of northeastern India have been the subject of torture by the Indian military forces for decades for their demand of more autonomy for the region.

Unfortunately, the resort to violence against any kind of dissent is not a new phenomenon for the Indian state, either. The princely states of Junagadh and Hyderabad were annexed by the Indian state by use of force when these states declined to be part of the newly formed independent Indian state.

But India’s use of violence to vitiate dissent has long been kept under the wraps of propagandist theories of a functional pluralistic democracy. India has projected itself, not only to the international community, but also to its citizens, as being a soft, liberal state. But events, past and present, prove otherwise.

Anil Choudhary is an LL.M. student from India.

Nigerians condemn Northwest Flight 253 bomb plot


Like most Nigerians, I was shocked when I received the news of an attempt by a twenty-three year old Nigerian man, Umar Farouk Abdulmutallab, to blow up a transatlantic flight between Amsterdam and the U.S. city of Detroit. The incident, which could have cost hundreds of innocent lives, if not the courageous efforts of passengers onboard who subdued the attempted jet bomber, is a heinous and despicable act of terrorism. The passengers should be commended for their heroism.

The fact that the incident took place on such an important day of Christmas, a global ceremony that celebrates the life of Jesus Christ, someone that has preached peace and tolerance to mankind, makes it all the more unfortunate.

This is the first time that a Nigerian is involved in such a dastardly act. On behalf of my Muslim colleagues and other Nigerians here at Harvard, I strongly condemn this attempted act of terrorism as a heinous and callous crime which does not in any way represent the character of Islam or Nigerian values of peace and harmonious coexistence. I also strongly urge all peace-loving Nigerians and Muslims to join me in condemning this barbarous act.

The Islam we practice teaches and represents peace and tolerance across racial, ethnic and religious divides. It is very unfortunate that at a time when we are all joining hands in fighting extremism that such a shameful act has been attempted on U.S. soil. Terrorism is condemnable wherever it takes place. I call upon everyone, especially our friends and hosts here in the U.S., to see this act as an isolated event by an individual, brainwashed by some terrorist groups that are enemies to all of us. The conduct does not in any way represent a particular religion or nationality.

Opinion expressed across Nigeria and the steps taken by the parents of Farouk Abdulmutallab demonstrates the commitment of Nigerians to fighting terrorism and extremism, both within and beyond Nigeria. We are all involved in ensuring our collective safety and in resisting any attempt to commit violence against innocent citizens in the name of religion.

I hope and pray that this is the last time we will experience such an atrocious plot against innocent people. I would like to call on U.S. security officials not to use this opportunity as an excuse to harass innocent, law-abiding and peace-loving Nigerians, who, like many others, have nothing to do with this act.

I also call upon the Nigerian security to fully cooperate with their U.S. counterparts in the investigation and prosecution of anyone that is involved in this condemnable act. We should all cooperate and support the security in their fight against terrorist wherever they are hiding.

This attempt is a reminder and a wake-up on all nations that the war on terror is not over. It is a continuing struggle between, on the one hand, evil forces that seek to spread violence, and, on the other, peace-loving humanity. We must all work together to defeat anyone who wants to use violence under the guise of religion to pursue political ends.

Nigerian security failed to detect and arrest Umar Farouk Abdulmutallab when he entered Nigeria from Ghana on his way to the U.S., and U.S. security failed to prevent him from entering US despite the repeated warning by his father on his radicalization. These lapses open serious questions that call for a review of security measures in both countries.

Still, once again, the terrorists have been defeated. May they always be defeated.

Aminu Gamawa is an LL.M. student from Nigeria and secretary of the Harvard African Law Association.

Harvard’s patent policy limits access to drugs by world’s poor



About a third of the world’s population, or roughly two billion people, lacks even the most basic access to essential medicines. Each year an estimated 25 million individuals, 10 million of them children, die of treatable and preventable diseases. A large share of those deaths could be averted by low-cost access to pharmaceuticals developed and patented by U.S. universities. University patents are found in a quarter of HIV/AIDS drugs and a fifth of high-impact drugs approved between 1988 and 2005.  The number of university patents has been on the rise since the 1980 passage of the Bayh-Dole Act, which gave universities title to patents arising from federal funding.  Once a university obtains a patent, it will typically license the patent to pharmaceutical companies for further development and commercialization. However, unlike pharmaceutical companies, which are tied to profit margins, universities are non-profit actors whose work is largely financed by public funding. Therefore, universities have a special obligation to ensure access to their research. 

In 2001, a group of Yale students learned that d4T (stavudine), an HIV antiretroviral drug patented by Yale and licensed to Bristol-Myers Squibb, was being sold at outrageous prices overseas, blocking off access for HIV patients living in South Africa and other developing countries. Troubled that Yale-developed drugs were being priced out of reach for HIV patients, the students joined in a publicity campaign that eventually pressured the university and pharmaceutical company into reducing the price of the drug and making it available for generic production in South Africa. Today, the organization those students founded, Universities Allied for Essential Medicines (UAEM), continues to advocate making university-developed drugs available to poor countries at low cost. 

On November 9th, the campaign for increased access scored a significant victory when Harvard and five other research universities signed a statement of principles pledging to “promote the availability of health-related technologies in developing countries for essential medical care.” The policy represents an important step forward for Harvard, which is both a research powerhouse for diseases such as AIDS and malaria, as well as a leader in the global technology access movement. However, the policy does not go far enough in several important ways. 

First, it is not clear the new policy represents an improvement over current licensing practices. Harvard has included global access provisions in only 5 of the 62 licenses concluded over the past two years. However, these licensing agreements are secret, so the nature of the access provisions, the number of medical licenses, and even the identity of the drugs covered, remain opaque. The new policy promises that Harvard’s intellectual property will not pose a barrier to essential medicine access in the developing world. It also commits to applying “meaningful metrics” to evaluate the success of its efforts.  This commitment is extremely vague. It does not address what the metrics are or how they will be applied in the context of individual agreements. How meaningful will the composite, retrospective metrics be, especially when so few agreements are concluded each year? 

Second, while the policy also sets out a menu of licensing options, it does not assemble these options into a coherent plan that would facilitate access to Harvard licensed drugs.  University licenses can impose global access conditions on pharmaceutical licensees in a variety of ways. Some of the most discussed options include: (1) Requirements that NGOs receive the rights to distribute discounted or donated drugs for humanitarian purposes (though NGOs rarely have the capacity to meet the needs of all patients in poor countries). (2) Tiered pricing for low-income and high-income patients in countries with a significant income gap, such as China or India (a difficult policy to administer and enforce). (3) “March-in rights” which allow the patent holder to revoke the licencee’s rights and license the patent to another company, if, for example, a global access condition is breached. (4) Financial incentives, such as forgiveness of university royalties, for licensees in exchange for providing low-cost drugs in the developing world. (5) Mandatory sub-licenses to specific generic manufacturers in developing countries. (6) Non-patenting policies, where the university simply does not patent in poor countries, allowing any manufacturer to make generic versions of the drug without a license.

The new policy requires universities to select among these options with the goal of “align[ing] incentives among all stakeholders.” This is a vague standard. Future policies should instead guarantee that a minimum level of access is negotiated into all relevant licenses; alternately, universities should commit to making access a primary consideration in negotiating global access provisions. A mandatory policy would reduce the need for transparency and oversight and might also give universities greater leverage and credibility in negotiating agreements with pharmaceutical licensees. As it stands, however, the policy does not articulate a clear, access-based strategy.

Third, under the new policy, Harvard will continue the practice of asserting patents in the so-called “BRIC” countries (Brazil, Russia, India, and China), in addition to patenting in developed regions such as Europe and North America. The BRIC countries produce over 40 percent of the active ingredients in the world’s generic and over-the-counter pharmaceuticals, and remain the only source of generic drugs outside the developed world. The effect of patenting in BRIC countries would be to close the “pharmacy to the developing world,” shutting down all sources of generic production bound for developing countries. Generic manufacturing represents the most sustainable option for delivering drugs to the poor, compared to the relatively stopgap measures of sublicensing and royalty forgiveness.

Finally, Harvard has stated that the policy will not apply to drugs for non-communicable diseases, even though these diseases are major killers in the developing world. The developing world now accounts for 80% of the world’s deaths from non-communicable diseases such as heart disease, cancer, and diabetes. While HIV/AIDS and malaria are often the first things to come to mind when thinking about global health, the problem of access extends beyond those two high-profile causes. 

The policy for non-communicable disease drugs might be explained by a deference to three pharmaceutical company concerns. The first concern is “parallel importation” – the idea that discounted or generic drugs meant for distribution in the developing world will be smuggled back to the developed world and sold through black markets. Unlike malaria or tuberculosis drugs, non-communicable disease drugs have significant markets in both the developed and developing worlds. There is scant evidence that parallel importation of donated or discounted drugs exists or poses a threat to industry profits. HHS estimates that about 10 million shipments of unapproved prescription drugs entered the U.S. in 2003; however most of these originated in Canada or Mexico.  It is not clear what percentage, if any, of these imports represented discounted or donated drugs that were destined for poor countries. A fair portion of these parallel imports consist of counterfeit or illegal drugs, rather than legitimate generic or brand-name drugs, according to HHS. The European Union allows parallel importation among its member states, but even the EU has experienced very few instances of parallel importation of drugs destined for the developing world. After incidents like the one in 2002 when GlaxoSmithKline discovered a trader had diverted 44,000 packs of HIV/AIDS medications from five African countries, governments have cracked down on these types of shipments. Manufacturers have also  adopted techniques like color-coding and special pa
ckaging to counter smuggling. As long as drugs are sold at a lower price in the developing world than the developed world, there will be an incentive for parallel importation. However, the solution is not to sell drugs to the developing world at the same price as the developed world, but rather to combat the smuggling. 

The second concern is that pharmaceutical companies, and by extension universities, will lose profits by forgoing potential pharmaceutical sales in the developing world. Pharmaceutical companies have publicly stated that they will seek to recoup any profits lost as a result of healthcare reform by raising prices in poorer nations (see, for example, “Drug Firms See Poorer Nations as Sales Cure,” Wall Street Journal, July 7, 2009).  Medications for chronic, long-term diseases like heart disease, cancer, and diabetes, are lucrative pharmaceutical sellers, and thus represent the best way for pharmaceutical companies to maintain their double-digit profit margins.  However the developing world represents a miniscule portion of pharmaceutical profits. PhRMA, the industry lobby, concedes that Africa comprised only 0.5% of sales in 2007, with China and India at 0.6% and 0.2% respectively. By comparison, the U.S. represented 67.7% of 2007 world sales. With the developing world accounting for such a small percentage of overall sales, pharmaceutical companies cannot claim that global access provisions would drastically alter their R&D incentives or lower their profit margins. Moreover, universities rarely make money off of their licenses. In 2007, Harvard University had about $1.88B in total research expenditures, but only $12M in license income.  Universities will occasionally hit the jackpot with isolated blockbuster drugs – New York University and Columbia had the highest licensing revenues in 2007 with $791.1M and $135.6M respectively, each from single deals. These amounts are almost never high enough to offset universities’ research expenditures.

The third concern is that global access provisions will serve as a “poison pill,” discouraging pharmaceutical companies from licensing with universities that require such provisions. This risk is probably overstated. Pharmaceutical companies will still compete to license promising drugs. Furthermore, licenses are primarily made with small companies (49.9% of deals) or start-ups (16.5%), many of them formed by the researcher who originally discovered the technology. These companies take the drug a bit further down the development pipeline before licensing to a big pharmaceutical company. Global access provisions are unlikely to change the first licensee’s decision to license, especially if the licensee has discovered the drug. For the second licensee, often a large pharmaceutical company, global access provisions are unlikely to discourage licensing for a drug with demonstrated value.

Since these concerns remain unproven, they should not serve as a basis for unnecessary concessions to pharmaceutical companies. If Harvard continues to enforce its patents in a way that prevents generic manufacturing of essential medicines, it will create a real barrier between these drugs and the people in developing countries who need them the most.

Maria van Wagenberg is a 2L.

Cambridge, USA: Punch-drunk hate at Harvard-Yale



The time had come in my HLS career to show some school spirit: I was going to Harvard-Yale.  I’m not normally a school spirit person, and even growing up in Texas had not made me interested in socializing around football.  But my year at Cambridge University had changed me into a person who enjoyed engaging in petty rivalries alongside hordes of affiliated University revelers.  So, I decided that there was no time like my last semester to engage in this supposedly quintessential Harvard experience.  And with that, we were off to New Haven, dressed in Crimson and ready to wave our white and red pompoms.  I didn’t even have to feign excitement; I was genuinely psyched to go.

We arrived late.  We had ambitiously promised a friend that we would drive down at dawn to catch the traditional 9am Harvard-Yale Law Review game of (flag) football.  We were obviously hallucinating when we said this.  We hit the road around ten, and began seeing signs for New Haven around kick-off time.  No problem, we said to ourselves.  We’ll still see plenty of action, if there was any action to be seen; after all, Harvard and Yale are not the country’s premier football schools.  But whatever happened, we were going to be there, screaming and chanting while juggling our funnel cake and beer.

There is something inherently hilarious about a football rivalry between Harvard and Yale.  The real rivalry between the schools is of course the question of who is smarter, more elite, more prestigious, more likely to take over the world.  There’s also the Cambridge-New Haven rivalry, in which we hate on each other’s cities.  But, fine, let’s pretend its about football for a minute.  However you want to classify it, we were looking forward to acting like pro-Harvard anti-Yale jerks for a few hours.

It was a stunningly sunny day—an auspicious beginning. We walked into the stadium grounds (the Bulldog’s den!) and were met by civilized teasing.  A golf cart of blue clad men trundled by, clutching Budweisers.  “Go back to Boston!” they yelled, laughing. Come on, that was all they had in them? “We will!” I yelled back. “In about five hours!”  As we left the tailgating area, a few couples attempted to come up with something witty and harsh and could only stutter, “Ew, is that Crimson?”  I turned around. Were we being referred to as a personified color? “Barf!” they giggled.   I waved my pompoms in their face and they broke out laughing.  On the way into the stadium, two Yale men asked me to pose for a picture with them in front of the giant inflatable Bulldog.  Just to show they meant business, they attempted to give me bunny ears. 

This was hardcore rivalry, alright. Across the stadium, a friend of mine doing a PhD at Yale was at the Forestry School’s barbeque. She gushed to me that they were roasting oysters sprinkled with cilantro. 

Arriving late was the accidentally smart thing to do.  We loaded up on fried food and piled into our seats at the end of the third quarter.  Depressingly, the score was Yale: 10, Harvard: 0, and the mood was pessimistic.  My friend turned to me in angst. “What do you think they’re going to do?” he said, gesturing at Harvard’s team.  I am not the right person to ask about these questions.  I follow the game by mimicking what the rest of the crowd is doing.  “I think they’re going to play football,” I said. “I mean what will they DO?”  I stared back at him, and then I offered up a distraction.  “Funnel cake?” He does love funnel cake.

We tried getting serious about footstomping, but the mood was not contagious.  A group of our LL.M. friends abandoned hope just before the start of the fourth quarter and left to tour Yale’s campus.  What they missed was a surprising and triumphant comeback. Harvard capitalized on poor playcalling by Yale to win the game 14-10. 

This was it! This was the reason we drove all the way down to New Haven on a Saturday morning! The crowd poured onto the field.  We filed out to the funnel cake stand, again.  No sense in getting in their way.

We shuffled back into town with the masses, high on the victory and sugar, and I was feeling particularly obnoxious. “Stinks to be you!” I laughed at a man in a Yale shirt.  “Do you want to get punched in the face right now?” he asked, glaring at me.  Uhm, NO.  “Do you want to learn to take a joke right now?” I asked.  This man was threatening to punch a girl in the face because she was lording a football victory over him?

He wasn’t backing down.  “I play on the team,” he growled. Well that explained things.  I sized him up.  Apparently, Yale had recruited some very small football players that like to punch girls in the face. But victory had been destined to be ours from the very beginning.  “Yeah, okay,” I responded.  “So you play on the team. Sorry.”  He kept glaring.  “Hey man—don’t worry!” one of my friends reassured him, in a cheery voice.  “You’ll come back next time!”

Traitor! Why was he even speaking to him? This little person had just threatened to hit me! He was psychotic! “Whatever,” the small angry football player spit out, stumbling into the forest on the side of the road.

“What the hell was that?!” we asked each other, before deciding to head for pizza, the one thing that New Haven may do better than Cambridge.  But the day was ours.  Victory was delicious, and not even hostile miniature football players could take that away from us.

The two party ballot suppresses third party change


In October 1958, Ralph Nader, then a recently-graduated, former editor of the Harvard Law Record, co-authored an article (reproduced below) decrying the monopolistic practices of the Democratic and Republican parties on state ballot laws and their ill effects on minor parties.  In defense of political dissent and the engagement of new proposals, Nader noted the “many times in our history” minor parties had “deeply stirred opinion.”  It was easier in the 19th century for regional or small start-up parties to get on the ballot and infuse elections with ideas such as the abolition of slavery, a woman’s right to vote, worker and farmer reforms—all of which we take for granted today, though the minor parties first advocating these rights did not win the presidency. 

Five decades later, Mr. Nader, now an internationally-renowned consumer advocate, has announced his candidacy for the U.S. presidency three times, twice as an Independent and once on the Green Party ticket.  His prescient words concerning the suppression of minor parties and dissenting agendas remain even more accurate today as they were fifty-one years ago.  

I have an intimate knowledge of these ballot access burdens because I managed the Nader’s 2000 and 2004 presidential campaigns and had to navigate through these laws and oversee or instigate nearly four dozen lawsuits to defend against or seek reform of their ill effects.  Indeed, in 2004—motivated by the 537-vote difference between Al Gore, Jr. and George W. Bush in Florida in 2000—the Democrats and their allies launched two dozen complaints in 12 weeks against Nader’s candidacy, consuming the time, energy and resources of the 2004 campaign, which was, in addition to blocking ballot access, the expressed goal of these major party political bigots and their brethren.  The litigious onslaught targeted Nader’s candidacy simply because he, like all eight minor party candidates on the ballot, received more than 537 votes:  but he received the most and was positioned to appeal to voters again with a progressive agenda.

Today, as in 1958, ballot access for minor parties and Independents remains convoluted and discriminatory.  Though certain state ballot access statutes are better, and a few Supreme Court decisions (Williams v. Rhodes, 393 U.S. 23 (1968), Anderson v. Celebrezze, 460 U.S. 780 (1983)) have been generally favorable, on the whole, the process—and the cumulative burden it places on these federal candidates—may be best described as antagonistic.  The jurisprudence of the Court remains hostile to minor party and Independent candidates, and this antipathy can be seen in at least a half dozen cases decided since Nader’s article, including Jenness v. Fortson, 403 U.S. 431 (1971), American Party of Tex. v. White, 415 U.S. 767 (1974), Munro v. Socialist Workers Party, 479 U.S. 189 (1986), Burdick v. Takushi, 504 U.S. 428 (1992), and Arkansas Ed. Television Comm’n v. Forbes, 523 U.S. 666 (1998).  

Justice Rehnquist, for example, writing for a 6-3 divided Court in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), spells out the Court’s bias for the “two-party system,” even though the word “party” is nowhere to be found in the Constitution.  He wrote that “The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system. And while an interest in securing the perceived benefits of a stable two-party system will not justify unreasonably exclusionary restrictions, States need not remove all the many hurdles third parties face in the American political arena today.”  520 U.S. 351, 366-67.  

This license, in effect, to discriminate against third parties and Independents—as well as the Court’s general reluctance to require much substantiation of “state interests” when states proffer that rationale to defend discriminatory laws—have not made it easy to be an Independent or the candidate of a Green, Libertarian, Socialist or Constitution Party, not to mention all the others.  Moreover, the Court has left unreviewed outright miscarriages of justice, as Nader knows from his half dozen unheard petitions to the Court springing from his 2004 campaign. 

The burdens faced by minor party and Independent candidates are systemic.   First, there are 51 different sets of Byzantine rules, written the by the partisan members of the legislatures of the fifty states and the District of Columbia.  As the major parties are usually automatically on the ballot, the partisan legislators show little concern for leveling the ballot access playing field for challengers to their incumbency or parties.  

Second, many of these ballot access laws are blatantly unconstitutional—as in they have already been held by the courts to be so, but the administrators of the elections cannot get their own state’s legislatures to bring the election codes into compliance with judicial rulings.  (We found this to be the case in multiple states, including Alaska, Arkansas, California, New York, Pennsylvania, and West Virginia.)  

Third, election officials in the thousands of state and local jurisdictions administering these state laws controlling federal elections often don’t know what their own ballot access laws contain or mean or are reluctant to tell candidates their meaning for fear of being sued.  

Fourth, compliance with the laws may be overseen by partisan civil servants, commissions, or courts, and we encountered all of the above in the adjudication of our cases, including egregious examples of partisanship—such as the use of the denial of ballot access as a partisan fundraising promotion by the then-Secretary of State of Oregon.  

Finally, the aggregate of these ballot access laws, either cumulatively by state, or even within a state, as alluded to by Justice O’Connor in her concurrence in Clingman v. Beaver, 544 U.S. 581 (2005), may be overwhelmingly burdensome.

Of course, ballot access is just one of the burdens faced by third party and Independent candidates.  Others include the federal regulatory system, the lack of public financing, the often dismissive if not derisive media, the Democrat and Republican cartel otherwise known as the Commission on Presidential Debates, which acts as a debate and media gatekeeper to millions.  Also, the hodgepodge of irregular and inconsistent laws can devalue the rights of a voter or candidate (from what counts as a vote to who is entitled to seek an audit) depending on the particular state jurisdiction in charge of administering the peculiar state laws applying to federal elections.  

Ten years ago, The Appleseed Center for Electoral Reform and the Harvard Legislative Research Bureau published in the Harvard Journal on Legislation “A Model Act for the Democratization of Ballot Access”, 36 Harv. J. on Legis. 451 (1999).  A decade later, not a single state has, and the problems remain.  

In my recent book, Grand Illusion, the Myth of Voter Choice in a Two-Party Tyranny, I contend that a better response would be to federalize federal ballot access laws by creating one federal statute applicable to all federal elections.  (State laws written to control the processes for candidates for Congress are often as bad, indeed worse than presidential ballot access laws, with some voters never having the chance to vote for Independent candidates for Congress because of their harsh state ballot access laws.)  

Since 1985, a few members of Congress—John Conyers, D-MI (e.g. HR 2320, HR 1582), Ron Paul, R-TX (e.g. HR 3600), and Tim Penny, DFL-MN (e.g. HR 1755)—have attempted over nine sessions to introduce federal legislation to ease these burdens for either or both congressional and presidential candidates.&nb
sp; Congress has shown that it can exercise control over federal elections where necessary by passing federal legislation to regulate a variety of aspects including registration (the “Motor Voter” Act), provisional ballots and state registration databases (the Help America Vote Act), and most recently absentee ballots for those abroad (the MOVE Act (Military and Overseas Voting Empowerment)).  

The prospect of passing a federal law (which has been introduced in some incarnation and voted out of committee and received a floor vote at least once in the House in the last two decades) is dim, but greater than the nonexistent movement for passage of a state model ballot access law, which has seen no success in the last decade.  
The question we should be asking is why we continue to permit this injustice when no other western country puts its third party and Independent candidates through the kind of hazing process ours does?  The congressional incumbency rate (routinely in the 90th percentile) reflects the often uncontested or merely predictable-by-landslide-proportions state of our congressional elections.  

These uncompetitive elections can be impregnable for many reasons, not the least of which are gerrymandered districts, a winner-take-all or first-past-the-post electoral system, and the lack of a choice-maximizing vote counting system, such as instant runoff or ranked choice voting.  

The lack of candidate and programmatic choice are also to blame, and for that we can look at the still onerous ballot access laws Nader warned of in 1958 and the ignominious role those laws have played in narrowing voters’ options by dictating the flipside of those choices—candidates’ rights to run on a level playing field.   Improved third party and Independent candidate rights— by invigorating and diversifying voter choices—will give citizens more meaningful elections. 

Theresa Amato is a public interest lawyer and was national campaign manager and in-house counsel for Ralph Nader in 2000 and 2004. She, is a graduate of Harvard College and NYU Law, a former Wasserstein Fellow at HLS and an Institute of Politics Fellow at the Kennedy School.  Her book, Grand Illusion: the Myth of Voter Choice in a Two-Party Tyranny, based on her experiences with the Nader campaign, was published this year by The New Press.


Do Third Parties Have a Chance? Ballot Access and Minority Parties (1958)

The following is an excerpt from an article by Ralph Nader ’58 and Theodore Jacobs ’58, published in the Harvard Law?Record on Oct. 9, 1958. Mr. Jacobs passed away on Aug. 7, 1998, of a neuromuscular degenerative ailment.

Most people will agree, as a general proposition, that our democratic faith is reflected in our treatment of minorities.  But, as so often happens with national professions, it is in the translation of these declarations into actual practice […]

In state after state there is a practical monopoly of the ballot by the Democratic and Republican parties.  The perpetuation of this monopoly is insured by laws which subject the entry of new or minority party slates to the ballot to almost impossible burdens, and by judicial interpretation of these laws which ignore their prejudicial effect on small parties. […]

What requirements must a small party or independent group meet in order to place its candidates on the ballot?  There are 48 different answers to this question.  Each state has its distinctive statutes, ranging from liberal to harsh, […]

Without taking into account all the minor variations in the several states, three main aspects of the independent nominating petition may be treated: (1) The number of signatures required; (2) Apportionment of these signatures throughout the state; (3) Stipulations concerning authentication of signatures and restrictions on persons who sign petitions.

In its Model Election Law, the American Civil Liberties Union urged that minor parties be required to accumulate signatures equivalent to only one-tenth of one percent of the total vote cast […] Compare this standard with the requirements of 2 percent in Missouri (36,000 votes), 3 percent in Massachusetts (71,643 votes), 5 percent in California (259,000 votes) and 7 percent in Ohio (259,000 votes). 

U.S. can learn from EU telecom reforms


This winter, the global telecommunications sector is active as never before. On November 24, Europe voted on its new Telecoms Package, a set of Directives that will serve as Europe’s future network policy. The U.S. is revising its own broadband policy at the same time, commissioning Harvard’s Berkman Center for Internet and Society to compile a study on the current global broadband trends. This fortunate conjuncture of regulatory overhauls both provides a clear vista of where we are heading to in terms of telecommunications, and highlights important differences between the U.S. and Europe, offering lessons, examples and alternatives to both sides of the Atlantic.

The EU’s approach is clearly consumer driven, and reasonably so. European countries strove hard to instill competition in the telecommunications sector over the past 20 years, and, having succeeded, they can now shift their attention to enhancing the consumer experience. This did not stop the EU from taking further action to increase competition, facilitating functional separation of national telecoms, requiring more independent national authorities, overseeing national regulatory remedies proposed by national regulators and reallocating spectrum. To achieve uniform application of these rules, the EU?will establish a new oversight authority, the Body of European Regulators for Electronic Communications?(BEREC).

But the new directives will also gravely change the lives of millions of network users directly. The EU will officially embrace a form of network neutrality: national telecom authorities will set a minimum quality level for all services, while network management allows more demanding types of applications to take up the necessary bandwidth. Customers will also receive  transparency in the form of better information on what services they subscribe to and what they can or cannot do with those communications services. A requirement that obliges all website operators to ask permission before installing almost any kind of cookie on the user’s computer is another step towards consumer protection, but this privacy provision is so strict that has attracted negative criticism. Finally, European consumers will also be able to change their fixed or mobile phone operator in one working day while keeping their old phone number (it currently takes, on average, nine).

Most importantly, though, the EU has declared that Internet access is a fundamental right and no disconnection from the internet can take place absent a prior fair and impartial procedure, including the right to be heard, and the right to an effective and timely judicial review. The provision came as a response to the opposition against France’s infamous three strikes law. EU Telecoms Commissioner Viviane Reding said that “the new internet freedom provision represents a great victory for the rights and freedoms of European citizens…. ‘Three-strikes-laws’ could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law.” The UK is  considering a similar law, but both countries recognize that their version of the three-strike law is not inconsistent with the new EU requirements.

Some of the issues the EU’s Telecoms Package aims to tackle are common to the U.S. The FCC National Broadband Plan taskforce has also identified a “consumer information gap” and a “data privacy gap,” while the management of the frequency spectrum is also a priority there, especially given the tremendous growth in the smart phone and netbook market. But because American telecommuications companies lack an obligation to share infrastructure, entry barriers for new competitors remain very high, and lack of coordination between firms when laying infrastructure dramatically increases costs. The problems of low rural penetration and digital divide are more acute in the U.S. than in Europe, and the FCC’s efforts are more likely to focus thereon. In that direction a reorganization of the Federal Universal Service Fund, to subsidize the broadband sector more effectively, is under examination.

The following months are critical. The FCC must deliver its plan to Congress by February 17, 2010, BEREC is expected to be formed by mid 2010 and the rest of the European directives must be transposed into national law by 2011. The synchronized mobility in the telecoms sector comes in a time where both the US and Europe need to catch up with more technologically advanced countries, like Japan and South Korea, which show the way towards the future: a fast, ubiquitous, integrated network to cover people’s information needs.

Konstantinos Stylianou is an LL.M. student from Greece.

Release of Rwanda’s mastermind of death promotes genocide denial


The recent encouraging news of the arrest in Germany of two of Rwanda’s suspected criminals, Ignace Murwanashyaka and Straton Musoni, overshadowed the latest development in the appeal chamber of the International Criminal Tribunal for Rwanda (ICTR).  On November 16, the tribunal reversed a 20 year prison sentence and ordered the immediate release of Protais Zigiranyirazo (“Mr. Z”). Based on a finding of ‘serious errors’ in the first chamber’s handling of the defendant’s alibi, the decision immediately sparked a wave of protest and consternation in Rwanda and the Rwandan diaspora.

The release of a suspected war criminal will not create much disturbance in a country where convicted killers live side by side with their victims’ relatives. The community-based gacaca, a local justice mechanism, have tried hundreds of thousands cases. They have also allowed the release of thousands of perpetrators under a plea-bargaining scheme.

But Mr. Z is not your usual genocide suspect. He is largely considered one of its masterminds.  Many feared him too much to pronounce his full name, for Mr. Z is the brother of Agathe Kanziga, wife of the former Rwandan president Juvénal Habyarimana. 

Zigiranyirazo’s reputation as a radical extremist went beyond Rwanda’s borders. In 1993, he was expelled from the Université de Québec à Montréal – and then from Canada altogether – after being convicted of uttering death threats against Tutsi refugees in Montreal. He moved back to Rwanda, where he was already known as the head of the ‘Akazu’, an informal but powerful organization revolving around the former president’s wife, who controlled the ominous ‘Zero Network’ death squads.

The existence and sinister agenda of the ‘Zero Network’ death squads were revealed as early as 1992 in the Rwandan press and confirmed in various local and international fora throughout the years that led to the genocide. General Roméo Dallaire, the UN peacekeeping commander, sent a now-famous report to New York in January 1994 based on the very detailed information and warnings provided by Jean Pierre, one of several defectors of the ‘Zero Network’. Everything Dallaire’s informant told him became reality three months later, and close to a million human beings were slaughtered. Like all other defectors, Jean Pierre had mentioned ‘Mr. Z’ as one of the key actors in the preparations.

Today, Mr ‘Z’ is a free man. The Trial Chamber, because of serious procedural errors, had led to a finding that he is not guilty. The memories of thousands of Rwandans of the vicious anti-Tutsi roadblocks he had established in direct proximity of all his residences in Kigali and Gisenyi weigh little or nothing to the court. 

It is useful to remember that the ICTR was established by the UN Security Council Resolution 955 with the dual objectives of accountability and deterrence on the one hand and reconciliation and peace on the other hand. In the words of Richard Goldstone, the Tribunal’s first prosecutor, the ICTR trial process is “an important means of promoting peace and reconciliation in Rwanda, providing catharsis to survivors.”

By clearing Protais Zigiranyirazo of any culpability, the appeal chamber arguably followed international standards of justice. The consequence of that decision, however, is not a simple mistrial. It is the acquittal of a man whose acts, though not properly documented by a prosecutor, are not easily forgotten in a country where genocide was committed in broad daylight.

How much consideration was given to the assessment of the impact on peace and reconciliation that the Tribunal is meant to serve? How locally relevant are the decisions of a transitional judicial body that applies rules and processes developed to address fundamentally different realities than that of a genocide? Most importantly, what are the implications of Mr. Z’s release for the very concept of Genocide Planning?

No planning = No genocide?

‘Mr. Z’ was reportedly still stunned by the appeal chamber’s decision when a news release co-signed by his lead defense attorney, Jean Philpot, celebrated the rejection, for the second time, of the charge againt him of genocide planning. The press release also calls for “the ICTR trials to be halted, ICTR convictions to be reviewed by an independent UN Commission, and the conditional release of detainees”.

Interestingly enough, Jean Philpot is the brother of no other than Robin Philpot, the Canadian politician who, in 2007, attracted intense media attention for repeatedly denying the 1994 genocide of the Tutsis. 

For Jean Philpot, Peter Erlinder and others, the concept is quite simple: no planning = no intent = no genocide.

But the genocide deniers’ campaign goes beyond the ICTR trials. A small but very active group of academics, often with ties of some kind to the ICTR defense lawyers, does not miss an opportunity to propagate their revisionist views. In the words of Professor Gerald Caplan: “the deniers’ reach and influence has been spreading, metastasizing like a malignant cancer, thanks to the anarchy of the blogosphere and to the embrace of the deniers’ arguments by a small but influential number of left-wing, anti-American journals and websites. Google Rwanda and you will quite likely get a deniers’ rant featuring the tiny band of usual suspects.…”

Similarly, Oxford University’s Phil Clarck worries about the increasing influence of deniers in the form of “scholars pursuing the latest academic fads that revel in ‘alternative narratives’, no matter how spurious or morally questionable; ‘génocidaires’ seeking to deflect attention from their crimes; and critics of the current Rwandan government who try to connect alleged RPF crimes to unrelated concerns with its current policies.”

Despite the lack of evidence for their assertions and the extensive works of reputable scholars and organizations that amply documented the planning of the 1994 genocide, this group persists. Could we be witnessing their increasing influence over the ICTR? An increasing number of genocide survivors apparently think so.

International justice for the international community

“Arusha’s justice is not ours. It is yours. That Tribunal was created to cleanse your conscience”.
– Yolande Mukagasana, survivor of the genocide, November 18, 2009

Yolande lost her three children as well as her husband, brothers and sisters. She has devoted her life to supporting genocide survivors in Rwanda. She has seen and heard enough. Her cynicism can therefore be forgiven when she suggests that the ICTR should imprison the orphans and widows instead of the killers. “At least they will have three meals a day. At least they will have a shelter. At least they will get medical care,” Mukagasana writes.

International standards of justice certainly have their own merits. There is, however, room for much more thinking on their societal impact in a post-conflict context.

For several years, Rwandan genocide survivors have been accusing the ICTR of repeatedly neglecting and watering down their testimonies. Today, they are once again in dismay. They feel ignored and abandoned, blocked from appaearing before the ICTR’s bench in Arusha, Tanzania, to tell the terrible truth. Arusha’s justice is not theirs if it considers Mr. Z an innocent man.

The ICTR has spent more than 1 billion dollars and completed less than 50 cases. With its profound detachment from Rwanda’s social realities, the tribunal could not be further from its claimed objective of contributing to national reconciliation.

Patrick Karuretwa is a Rwandan lawyer studying at Tufts University’s Fletcher School of Law and Diplomacy as its first ever LL.M./M.A.L.D. joint degree candidate.


Switzerland’s minaret ban about more than xenophobia


The controversial poster displayed around Switzerland in support of a ban on new minarets.
A Turkish mosque in Wangen bei Olten, Switzerland sports one of the country?s four minarets.

Switzerland’s vote to ban the construction of minarets, the prayer towers of mosques, was greeted with a mixture of astonishment and disbelief around the world. The impact of this decision was certainly magnified by the fact that – coincidentally – it occurred on the last day of the “Festival of Sacrifice” (Eid al-Adha), a holiday celebrated by Muslims worldwide. Some commentators have already suggested that the vote will spark a backlash similar to the one triggered in 2005 by the publication in a Danish newspaper of cartoons representing the Prophet Muhammad. This makes it critical to shed light on the legal and political process that led to this vote.

Switzerland takes pride in a century-old political system which allows its citizens to have the last word on almost any important issue regarding their country. The Swiss Constitution grants each citizen the right of initiative, i.e. the right to propose a constitutional amendment which, if signed by at least 100,000 citizens, is then submitted to a popular vote.

In July 2008, a minor conservative political party announced that it had collected the required number of signatures to force a vote on the prohibition of the construction of minarets in Switzerland. This proposal was immediately opposed by three of the four main political parties that share power within the Swiss government. The fourth main political force endorsed the initiative, but only half-heartedly. At the outset of the political campaign, a number of Swiss cities, citing concerns under Swiss anti-racism laws, announced their intent to ban from their streets the posters the proponents of the initiative  printed, showing missile-shaped minarets piercing a Swiss flag. This proved to be a costly strategic mistake by the initiative’s adversaries. From then on, the public debate focused essentially on the limits of freedom of expression and touched only very superficially on the significance of this initiative for the interfaith relationship in Swiss society. All the polls published in the weeks preceding the vote suggested that the initiative would be solidly rejected. Sunday’s result therefore came as a colossal surprise for the country and for the entire world.

Against this background, it is worth noting that the initiative does not ban the construction of mosques or the exercise of the Muslim religion as such, but only the construction of minarets on mosques. The four minarets that currently exist in Switzerland are not affected by the vote, nor are the approximately 400,000 Muslims living in Switzerland restricted in any way from practicing their faith in their places of worship. That being said, this formalistic approach to the scope of the initiative fails to reflect the symbolic power of the message sent by a majority of Swiss voters this Sunday.

Some commentators have argued that this initiative might be contrary to the liberty of religion, as guaranteed by the European Convention on Human Rights, to which Switzerland has been a party since 1974. But the practical consequences deriving from the conflict between Switzerland’s duties under an international treaty and a constitutional amendment ratified by an overwhelming majority of Swiss voters are unclear, and are currently the subject of a heated debate among Swiss law professors and politicians. 

More importantly, this vote cannot and should not be seen as the ultimate proof of a predominantly anti-Muslim sentiment within the Swiss population, despite the fact that this decision casts a shadow on Switzerland’s image as an open and tolerant country. This vote rather reflects a sentiment of fear and uncertainty that recently grasped this country. In the past months, some of the fundamental pillars that defined the Swiss society over the past century were shaken to the core, particularly following the disclosure of the dire financial situation of its flagship banks and the relentless attacks on the Swiss banking secrecy. Furthermore, an on-going diplomatic row with Libya following an incident involving the Libyan leader’s son in Geneva may also have been on voters’ minds when they cast their ballots.

But it is also worth pointing out that , until recently, the Swiss Constitution contained a provision whereby the creation of a new Catholic diocese was subject to the approval of the federal government. Given the Protestant alignment of the Swiss government at the time this provision was introduced in 1874, the requirement for a prior approval was tantamount to an outright ban. In 2001, Swiss voters decided, again in a popular vote, to remove this discriminatory legal provision. Sadly, the blank line left in the text of the Constitution by the 2001 vote will now be filled with the new provision banning the construction of minarets.

Sunday’s vote will probably be seen around the world as a step backwards on the road towards the peaceful cohabitation of religions. This notwithstanding, this decision – which was taken democratically in a sovereign country and therefore ought to be respected – must be considered as a unique opportunity to initiate a profound dialogue with the Muslim communities, both in Switzerland and elsewhere in the Western world, in order to define the necessary preconditions of a peaceful and harmonious coexistence.
Philipp Fischer LL.M. ’09 is a Swiss national who currently works in New York.


Copenhagen climate summit will fail due to poor U.S. commitment


A tugboat on London’s Thames River pulls an ice floe with a polar bear stuck on it to illustrate the effects of climate change.

From December 7 to 18, the representatives of 192 nations will gather in Copenhagen, Denmark, to decide the fate of the human race. Will we continue to live in a world with a stable climate, or will we condemn ours and future generations to a world with steadily decreasing amounts of food and water as the population is set to dramatically increase? 

Among the attendees will be President Barack Obama ’91 and the heads of state of close to 100 nations, including Australia, Brazil, Canada, China, France, Germany, and the UK.

The original goals of the summit was to try to reach an agreement to keep temperature increases to less than two degrees Celsius; thereby forestalling what scientists said would be the worst consequences of global warming.  This two degree goal was based on a report by the Intergovernmental Panel on Climate Change, the Nobel-winning body charged with summarizing all of the available scientific literature on global climatic disruption.

This body was not empowered to make recommendations, but their analysis revealed that to have a 50% chance of avoiding two degrees, we would need to stabilize emissions at 450 parts per million (ppm) of Carbon Dioxide in the atmosphere.

In order to earn that 50% chance, developed nations like the US would need to reduce their emissions between 25-40% below 1990 levels of emissions by the year 2020, and by 80-95% by 2050.  Since most heads of state will not be in office in 2050, the 2020 goals are much more telling of the current state of affairs:

The European Union has pledged to reduce emissions across the block by 20% below 1990 levels by 2020, and increase that pledge to 30% if other nations similarly follow suit.  Some European nations have pledged even more:  Norway has pledged to reduce its emissions a full 40% by 2020 (what most developing nations are now calling for); and our strong ally the UK has pledged to reduce its emissions 34% below 1990 levels by 2020.  Japan, too has stepped up, with a 25% below 1990 levels pledge by 2020.

So how is Obama ‘reclaiming’ American leadership and returning us to good-standing in the international community?  He is going with a pledge of 17% below 2005 levels by 2020.  While this sounds fairly close to what other nations are doing, it is indeed a national embarrassment.  In 1990 levels, when most of our rich peers are in the 20-40% range, Obama is going to Copenhagen with a pledge to reduce emissions by only 3% below 1990 levels by 2020.

Canada and Australia are using U.S. intransigence as an excuse to refuse to be less aggressive, but they would quickly fall into line if we stepped up to the plate.  But more frustrating and damning is that developing nations can also use our failure to lead as an excuse.

All observers recognize that China, India, and other major developing nations will have to agree to binding emissions reductions if we to avert catastrophe.  Yet with Obama coming to the table with such a measly pledge, it is hard for those nations to go back to their people having made any substantial commitments themselves.  So, despite the courageous leadership of developing nations like the Maldives, Brazil, Mexico, Ghana, and others, which are willing to make significant emissions reduction pledges, China and India are looking to only pledge to reduce the rate of growth of their emissions.

To make things even worse, leading scientists now believe that the 450 target that countries are failing to even have a 50% chance of hitting is outdated and overly conservative.  NASA’s leading climate scientist, Dr. James Hansen, Director of the Goddard Institute for Space Studies, has determined that the highest safe level of CO2 in the atmosphere is 350 parts per million (ppm).  We are now at 390ppm and climbing quickly, on pace to hit over 900 by the end of the century.  The world has not had CO2 levels stabilize at 400ppm for some 13 million years, long before human beings walked the planet, much less rode on it in carts or cars.  This goal has even been endorsed by the chair of the Intergovernmental Panel on Climate Change.

So, basically, the world is screwed.  Almost every major environmental organizations in the United States is so excited to have President Obama actually doing something, after decades of inaction in the hands of Reagan, Bush, Clinton, and another Bush, that they forget that science actually does care about the numbers.  We are not negotiating with Republicans, we are negotiating with Physics and Chemistry, and they do not handle negotiations well.  We get no credit for recessions, for filibusters, or for good intentions.

Copenhagen will fail to reach a deal that will safeguard your future.  If you are planning to have children, you might want to reconsider.  Some scientists estimate that we may have enough food and water left on the planet for less than one billion people by 2100.  A recent report funded by the United States Army, the World Bank, and UNESCO stated that, without dramatic action “billions of people will be condemned to poverty, and much of civilization will collapse.”  Scientists estimate that as early as 2035, melting glaciers in the Himalayas would see the water supply of over 400 million people (more than the entire populations of American and Canada combined) completely dry up, leaving the nuclear-armed nations of China, India, and Pakistan scrambling to find, buy, or steal enough water to quench a thirst the size of North America.

Here in Massachusetts, the Leadership Campaign is leaning on the state government to embrace the goal of 350 parts per million by committing to repower Massachusetts with 100% Clean Electricity in ten Years.  The campaign is led by students at over twenty schools across the state, but is conducted in partnership with the Massachusetts Council of Churches, the Massachusetts Climate Action Network, and the Sustainable Business Network.  Twenty-five legislators (representing 1/8 of the entire state legislature) have already pledged their support. 

Craig Altemose is a 3L pursuing a joint degree with the Kennedy School. He is also a statewide coordinator of the Leadership Campaign, a Massachusetts-based organization dedicated to “protecting humanity from the unprecedented threat of global destablization as a result of rapid climate disruption,” which is online at Anyone with a desire to assist their efforts can contact Craig directly at