So good, yet so evil...

This morning, I had my first set of final exams - for Terrorism & the law, and International Human Rights law.

The first challenge was that I was taking the exams without having had coffee or breakfast. Fact #1, cafes and coffee shops (in the American sense of the word), do not open until after 9:00 a.m. on Saturdays. At least none that are in the route between my apartment and the university. (See subsequent post about the differing notions of time).

Here is how the exams are structured. Each exam is 1 1/2 hours long. Because the university there isn't set up for computer use, the exams were handwritten. My first exam started at 9:00 and ended at 10:30. Because I have back-to-back morning classes, my second exam ran from 10:50 to 12:20. By the time I got done, I could hardly hold the pen.

I don't have a copy of the first exam for Terrorism (we had to hand in the original), but for the sport of it, I am going to type in verbatim my second exam from International Human Rights so you can see what it is like. Remember, you have an hour and a half total to answer all questions:

Question #1 - 40 points (approximately 35 minutes)

You are on the staff of International Human Rights Action (IHRA), a non-profit, non-governmental organization based in Washington, D.C. IHRA, a relatively large U.S.-based human rights organization, has a mandate to promote respect for international human rights through legal and political advocacy. the organization has consultative status with the Economic and Social Council of the United Nations, which allows it to attend and participate in meetings of the various U.N. bodies relevant to human rights. IHRA has also developed close contacts with the various branches of the U.S. government.

You have just returned from a two-week fact-finding mission to Sasnakstan, a country in south-central Asia that has experienced a recent increase in reported human rights violations. You have prepared the following summary of information about Sasnakstan and the human rights situation there:

• Sasnakstan is a land-locked country about the same size as France and has an estimated population of 19 million. Most of the population is of the Sasnak ethnic group and the Sasnak religion. In the small northwestern province of Lenguana, which is separated from the rest of Sasnakstan and from surrounding countries by high mountains, the Leng ethnic group, which practices its own Leng religion, has a very slight majority over the local Sasnak population. The total population of Lenguana is less than 300,000. There is also a small Leng community in Sasnak City, the capital of Sasnakstan.
• Sasnakstan is governed by the National Patriotic Party (NPP), which, with the support of the military, overthrew an elected government in a bloodless coup in 2001. Since the 1980s, the Lenguana Liberation Movement (LLM) has been fighting a war against the Sasnak military, seeking an independent country of Lenguana; there have been acts of violence by LLM members against the Sasnak population in Lenguana's main city, but this violence has not spread to the rest of Sasnakstan. The NPP cited the war and terrorism in Lenguana when it seized power from a centrist government perceived as being weak and unable to bring the conflict to an end.
• The privately owned Sasnak Oil Company found significant oil reserves in Lenguana and became a modest oil exporter; most of the workers in the oil fields were Sasnaks who were given subsidies and parcels of land in Lenguana by the national government as incentives to relocate to Lenguana. Most of the Leng population remains extremely poor.
• In the Spring of 2005, after several very successful LLM attacks on Sasnak military operations and oil wells, the Sasnak military intensified its campaign in Lenguana. At the same time, an increase in acts of terrorism, including killings of Sasnak civilians, was reported in Lenguana. At the end of the year, the NPP government began to arrest a large number of people, mostly in the national capital, Sasnakstan (sic) City. Those arrested included members of the Leng ethnic group, journalists and young Sasnak intellectuals. Most were charged under provisions of the Law to Preserve Sasnak Sovereignty and Honor that had been declared by the government in power in 1977. The most commonly used of these provisions made it a criminal offense "to utter or publish statements that damage the honor or soverignty of the State of Sasnakstan or that may cause or give support to conduct that threatens the security of the State of Sasnakstan, or to belong to any association, party or group that is based on beliefs or principles that are contrary to the honor, sovereignty or security of the State of Sasnakstan." Those charged were generally tried, convicted and sentenced to varying prision terms by special secret state security courts established by the military in 2004.
• NPP Youth Leadership Association gangs in Sasnak City have beaten up members of the Leng minority. Reports of rape have increased dramatically; the victims have been almost exclusively Leng women. Recently, Sasnak religious leaders have been broadcasting statements over Sasnakstan's only remaining radio station, saying that the Leng people and outside religious influences are responsible for Sasnakstan's poverty and its social ills and that all Sasnak people should be prepred to help rid socieity of evil influences. Sasnak military commanders gave their troops instructions to do "whatever is necessary" to maintain order in Lenguana and protect the national security of Sasnakstan. Although outside access to Lenguana is very limited, there have been reports in the last few weeks of attacks by the Sasnak army and NPP Youth Leadership Association members on Leng communities there; young Leng men have reportedly been rounded up and killed, houses have been burned, and crops destroyed. The Sasnak government has claimed that these attacks were justified because the villages were harboring terrorists and because the casualties would demoralize the LLM. The only independent Leng newspaper and radio stations have been shut down. Leng religious sites have been desecrated. Leng religious, academic and civic leaders have reportedly disappeared. The Sasnak government has described the conflict as a domestic affair and the government's action as necessary for maintaining public safety and order.
• The United States, although it now imports small amounts of oil from Sasnakstan, has never had significant interests there. In recent months, however, intelligence reports have begun to indicate that LLM fighters have connections with al-Quaeda and that al-Quaeda has established training bases in the mountains of Lenguana. European newspapers have reported that CIA agents and U.S. military advisors are in Sasnakstan working with the Sasnak military in its counterinsurgency efforts.
• Sasnakstan is a member of the United Nations. It has ratified the International Convenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Genocide Convention and the Race Convention. It has not ratified the Rome Statute that established the International Criminal Court.

IHRA is committed to making the worsening situation in Sasnakstan a major focus of its work during the next few months; while it is prepared to devote considerable resources to the campaign, it must consider carefully how to use them effectively and efficiently.

Write a memo to the executive director of IHRA:

1. Recommending what actions you believe the organization should take in response to the situation in Sasnakstan (The hypothetical raises many issues. You should not try to cover them all. Exercise judgment and decide which issues you believe IHRA shoud, and is in a good position to, address and what its approach to those issues should be);
2. Support your recommendations with references to all relevant international law, including, where appropriate, customary law, as well as practical and policy considerations;
3. Briefly identify the possible advantages or disadvantages or weaknesses of- or arguments against - the actions you recommend; and
4. Briefly identifying two or three other possible significant actions that you have decided not to recommend (do not spend much time on this part of the answer - just identify these rejected actions).

[Blog side note here: You might want to look and see how long it took you to read the fact pattern and subtract that from 35 minutes. That is how long you have left to answer the question. For me, it took 10 minutes to read and briefly outline a response, which left me 25 minutes to hand-write a response.]

Question 2 - 30 points (approximately 25 minutes)

It is 2114, and the United Nations, the European Union, the United States, Russia and a coalition of predominately Muslim states have been facilitating several months of intensive negotiations between Israel and the Palestinian Authority. Public opinion polls have been indicating that substantial majorities of both Israelis and Palestinians want peace, a two-state solution, and close economic and political ties between Israel and a new Palestinian state in the West Bank and Gaza. Elections late in 2113 brought a new generation of Palestinian and Israeli leaders to power, and their representatives have achieved agreement on almost all of the most challenging issues that have sustained the conflict.

You are special advisor to the Secretary General of the United Naitons on accountability for serious abuses of human rights. The Secretary General, who has played the leading role in advancing the Israeli-Palestinian negotiations, has come to you and told you that an issue has arisen on which she urgently needs your advice. Negotiators for both sides have begun to demand that the peace agreement provide a mechanism or mechanisms for justice and accountability for human rights abuses since the beginning of Israel's occupation of Gaza and the West Bank. Participants in the negotiations, including international participants, have widely divergent views about whether any such mechanism should be established and, if so, what their nature should be. Each side is interested in holding accountable those on the other side who were responsible for various crimes. Some argue that there must be trials, but even within that camp, there are different ideas about what sort of tribunal should be established, who should be subject to its jurisdiction, and what crimes should be covered. Others have advocated for a truth commission, but this group, too, is divided about the mandate, scope and authority such a commission should have. Yet another contingent has, with the support of a group of prominent Christian, Jewish and Muslim religious leaders, called for a blanket amnesty for any criminal or civil proceedings against anyone, Israeli or Palestinian, responsible for any political crime since the establishment of the State of Israel.

The Secretary General has asked you to prepare a memorandum to her recommending what, if any, measures of justice and accountability the United Nations should press for in the peace negotiations. She has told you that the Security Council, eager to have a lasting peace in the Middle East at last, will support any measures that require its authorization. She has also told you that you should recommend what you honestly feel would be best, taking into consideration, of course, the requirements of international law, the history of the region, and the need to have the two states and two peoples live side by side in peace. You should consider all possibilities, from doing nothing at all to having a combination of truth processes and prosecution. Finally, she has told ytou that you have less than half an hour to determine the best approach and prepare your memorandum. Although your expertise is human rights, justice and accountability generally, not the Middle East, you are reasonably familiar with the history of the conflict there.

Prepare a brief memorandum that includes a description of the process or processes, if any, that you recommend.

• Support your recommendation with references to relevant international law, including, where appropriate, customary law, as well as practical and policy considerations.
• Briefly identify the disadvantages or weaknesses of - or arguments against - the approach you recommend.
• Finally, mention other possible significant actions that you have decided not to recommend and state very briefly why you have rejected them.

[Blog note: Still with me? You've got 25 minutes left until the exam is over. Your hand is cramping up and you are fighting away panic, which will distract you if you let it overtake you.]

Question 3, Option A

It is late November 2008, and you are a foreign-affairs afvisor to U.S. President-elect Kucinich. He has just made a Thanksgiving Day speech in which he has quoted at length from Franklin Delano Roosevelt's State of the Union Address from January 11, 1944. Among the passages from Roosevelt's address included in the speech was the following:

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. "Necessitous men are not free men." People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis for security and prosperity can be established for all regardless of station, race or creed....

...America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world.

You are sitting in your office at transition headquarters, vaguely aware of the speech and the references in Roosevelt's address to the larger world, but you know that the president-elect's speech focused on his plans for policies to address poverty in the United States and you are focused on other matters when the president-elect knocks on your door and enters your office. He advises you that representatives of a group of human rights organizations met with him the day after Thanksgiving to thank him for his eloquent speech and to urge him to use the mandate of his term to send the International Covenant on Economic, Social and Cultural rights (ICESCR) to the Senate for ratification. He says he is enthusiastic about this but has already heard from Senate leaders, including Democrats and Republicans, that getting Senate approval for ratification will be difficult and that many members and their constituents are opposed.

Roosevelt's speech was given before adoption of the Universal Declaration of Human Rights and long before adoption of the ICESCR. The president-elect believes, however, that it captures important traditional American values that can bolster an effort to ratify the Covenant now.

The president-elect asks for your written advice on whether or not the United States should ratify the ICESCR. Remarkably, he gives you less than half an hour to do it. Write a brief memorandum that recommends whether nor not the United States should ratify the ICESCR.

• Discuss the key arguments for your position, drawing on any cases, issues, and principles covered in the course.
• Discuss briefly the impact you believe ratification would have, whether positive or negative.
• Identify two or three key arguments against your position (do not spend much time on this part of the answer - just identify the arguments).

Question 3, Option B

A colleague has argued that in the aftermath of World War II, a post-war compromise on human rights evolved. It included the establishment of strong norms, on the one hand, and weak institutions on the other. He suggested, however, that with the military intervention in Kosovo, first under Nato auspices but later, in effect, recognized by the Security Council, and the establishment of the International Criminal Court, the post-war compromise had begun, at least, to show evidence of breaking down in favor of stronger institutions. Explain why you agree or disagree with the initial observation about strong norms and weak institutions and the perception that the compromise has begun to change. To the extent such change has begun, are there other developments you can point to as part of it? Other than these forms of intervention - military and judicial - what other changes do you think necessary to make the institutions for human rights protection more effective?

[Return to blog from this point forward: By the way, I selected Option B for the third question.]

Thus, you can see why I titled this post, "So good, yet so evil..." The professor, from Yale, is brillant and is a practitioner of human rights law - not just an academic. He does much good. However, he makes one evil professor when making up exams.