Equality of Arms in International Term Paper

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Historically, since the end of the Vietnam War in 1975, Cambodia has suffered under the oppression of dictators such as Pol Pot, who instituted Communism and its related rights violations of law. As a result, the question of the future of Cambodia has become vitally important and likewise, international law has had to step in to remedy the situation.

Statutes and Charters from the United Nations Tribunals

The evolution of international tribunals from the post World War II period to the present has likewise resulted in the development of United Nations statutes and charters in the interest of equality, justice and peace on a global scale, even beyond those such as the ICTY and ICTR. Chief among these, in the opinion of many, is the United Nations Human Rights Committee, which blends the consideration of the rights of all of the peoples of the world with the responsibility of international tribunals to deliver swift and equal justice

Overall, the net effect of the U.N. statutes and charters has been a globalization of the criminal justice system, indicative of the increased awareness of the rights of the individual and the fact that violations of human rights cannot hide behind borders or corridors of quasi-power.

European Charter Statues Incorporated with International Law

The movement to promote international justice on the part of the United Nations and other organizations, in collaboration with most of the governments of the world, has led to the incorporation of several major tribunals with global scope in the modern era of world justice, including the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. These tribunals have made it possible for laws to be uniformly enforced and the people of the world to be protected en masse from those that would oppress, torture and kill them.

With international bodies of law enforcement and justice in place, the rise of global terrorism in the last several decades has given rise to additional legislation on the part of individual nations which at times clashes with international law and causes intense debate. An excellent example of this will now be presented.

Military Commission Act of 2006

With the following words, in 1996, President George W. Bush signed into law what has become one of the most controversial pieces of legislation in the modern annals of international law and human rights, the Military Commission Act:

It is a rare occasion when a President can sign a bill he knows will save American lives. I have that privilege this morning. The Military Commissions Act of 2006 is one of the most important pieces of legislation in the War on Terror.... And now, in memory of the victims of September the 11th, it is my honor to sign the Military Commissions Act of 2006 into law."

On the surface, this legislation seems important, as it is designed to assist American military and law enforcement personnel in obtaining information from suspected terrorists; information, which it is argued, can save millions of innocent lives as it directly corresponds to terrorist plots and the like; in defense of the Act, it has also shown its validity and results by allowing for the arrest and detainment of people who were later identified as terrorist bent on destroying American and its allies with terrorism. However, the consideration of the rights of individuals suspected of criminal activity seems to have been lost in the shuffle and deserves consideration, especially since the United States, one of the pillars of freedom in the world, is the key antagonist in these detentions and aggressive arrests.

It is fair to ask the question of what rights an accused- not proven-criminal will be given under the Military Commission Act. A key to the rights of accused criminals under the U.S. Constitution is the right of habeus corpus, or protection from arrest and physical removal from one's home without a valid warrant for arrest and just cause for that arrest; in other words, no one can be arrested, taken into custody, and held for indefinite periods of time simply on a hunch that they may be a criminal. However, because of the sensitive nature of the possibility of terrorist attacks, habeus corpus has been killed by the Military Commission Act, symbolically opening the floodgates for people to be detained on the slimmest of evidence, if any at all.

The hallmarks of the American judicial system, highlighted by all of the benefits of Equality of Arms, have specifically been disregarded under the guise of the Military Commission Act in the case of detainees, mostly from Afghanistan, who have been whisked away to GTMO- the American detention camp at Guantanamo Bay, Cuba. At GTMO, the prisoners are deprived of any shadow of due process.

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This deprivation likewise brings into question the ability of the U.S. Supreme Court to quote international law in prosecuting the GTMO prisoners and the Supremacy Clause of the U.S. Constitution. To be more precise, the Supremacy Clause maintains that the U.S. Constitution is the supreme law of the land, to be held in higher regard than the laws of individual states, or other legislative bodies, such as those who impose international law, bringing about a dilemma- should the U.S. follow its own Constitution, international law, or disregard both in the spirit of the Military Commission Act?

Unless the Constitution is followed, the risk of violating the Supremacy Clause exists, and if the Constitution is followed, the independent judiciary element of the U.N. is destroyed. On the other hand, if the Military Commission Act is used under the premise of its necessity to fight terrorism, all human rights seem to disappear instantly. At the time of this writing, this exact question is being debated in the governments, media, and streets of the world, and given the complex nature of the international situation at this time in world history, perhaps there is no clear answer to the resolution of the issue. One thing is clear, however- individual rights must always be taken into consideration as should the reasoning that it is in the best interest of the U.S. To give the GTMO detainees due process of law to avoid any question of their guilt, avoid future appeals, and erase the possibility of martyrdom, much like those who organized Nuremburg wisely did.

Summary

This paper has attempted to bring to light and discuss the many facets of international justice and law in modern times, and especially, in the complex world of the 21st century. In fairness, there may not be an obvious answer to the balance between individual rights, international law and common interests, but one thing must be understood in closing- without continued debate, and the right to do so, the world would surely be doomed to oppression and decline.

References

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Bellamy, P. (2005). Cambodia: Remembering the Killing Fields Paul Bellamy Examines the Bloody Recent History of Cambodia and Warns That it Faces an Uncertain Future. New Zealand International Review, 30(2), 17+.

Downie, S., & Kingsbury, D. (2001). Political Development and the Re-emergence of Civil Society in Cambodia. Contemporary Southeast Asia, 23(1), 43.

Foley, B. (2005). Why Americans Don't Care About GTMO and Why They Should. Journal of the Florida Coastal School of Law. Retrieved November 9, 2006 from the World Wide Web: http://jurist.law.pitt.edu/forumy/2005/11/why-americans-dont-care-about-gtmo-and.php

Green, H.M. (2003). Benz, Wolfgang and Walter H. Pehle, Eds. Encyclopedia of German Resistance to the Nazi Movement. International Social Science Review, 78(1-2), 48+.

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Jaeger, N.E. (1997). Maybe Soldiers Have Rights after All. Journal of Criminal Law and Criminology, 87(3), 895-931.

Kelk, C. (1995). 1 Criminal Justice in the Netherlands. In Criminal Justice in Europe: A Comparative Study, Fennell, P., Harding, C., Jrg, N., & Swart, B. (Eds.) (pp. 1-20). Oxford: Clarendon Press.

Kymlicka, W. & Opalski, M. (Eds.). (2001). Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations in Eastern Europe. New York: Oxford University Press.

Military Commission Act (2006). Facts About the Military Commission Act of 2006. Washington, D.C.: White House Press Office. Retrieved November 8, 2006 from the World Wide Web: http://www.whitehouse.gov/news/releases/2006/10/20061017.html

Pasqualucci, J.M. (2003). The Practice and Procedure of the Inter-American Court of Human Rights. Cambridge, England: Cambridge University Press......

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