The Story of King Tex: A Modern Allegory

Dr Dug Cubie

1st February 2017

This blog presents a modern allegory (with apologies to Lon Fuller).

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex, as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex.

Eight Ways to Fail to Make Law

Tex came to the throne with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Tex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad.

His first official act was, however, dramatic and propitious. Since he needed a clean slate on which to write, he announced to his subjects the immediate repeal of all existing law, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely property developer, his education had been very defective. In particular, he found himself incapable of making even the simplest generalisations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point.

Becoming aware of his limitations, Tex gave up the project of a code and announced to his subjects that henceforth he would act as a judge via Twitter in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalisation might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture failed completely. After he had handed down literally hundreds of fabulous decisions within the confines of 140 characters neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalisation as were to be found in his opinions only compounded the confusion, for they gave false leads and alternative facts to his subjects and threw his own meagre powers of judgment off balance in the decision of later cases.

After this fiasco Tex realised it was necessary to take a fresh start. His first move was to subscribe to a course of lessons in generalisation. With his intellectual powers thus fortified, he resumed the project of a code and, after many hours of solitary labour, succeeded in preparing a fairly lengthy Executive Order. He was still not confident, however, that he had fully overcome his previous defects. Accordingly, he announced to his subjects on Twitter that he had written out a GREAT CODE and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his family. To Tex’s surprise this sensible plan was deeply resented by his subjects, who took to the streets in their thousands to protest. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were.

Stunned by this rejection, Tex undertook an earnest inventory of his personal strengths (which were legion) and weaknesses (of which he had none). He decided that life had taught him one clear lesson, namely, that it is easier to decide things with the aid of hindsight and by reflecting on the good old days than it is to attempt to foresee and control the future. Not only did hindsight make it easier to decide cases, but – and this was of supreme importance to Tex – it made it easier to give reasons. Deciding to capitalise on this insight, Tex hit on the following plan. At the beginning of each calender year he would decide all the controversies that had arisen among his subjects during the preceding year. He would accompany his decisions with a full statement of reasons. Naturally, the reasons thus given would be understood as not controlling decisions in future years, for that would be to defeat the whole purpose of the new arrangement, which was to gain the advantages of hindsight. Tex confidently announced the new plan to his subjects over Twitter at 3am, observing that he was going to publish the full text of his judgements with the rules applied by him, thus meeting the chief objection to the old plan. Tex’s subjects received this announcement in silence, then quietly explained through their more enlightened democratic representatives that when they said they needed to know the rules, they meant they needed to know them in advance so they could act on them. Tex muttered something to the effect that they might have made that point a little clearer, but said he would see what could be done.

Tex now realised that there was no escape from a published code declaring the rules to be applied in future disputes. Continuing his lessons in generalisation, Tex worked diligently on a revised GREATER CODE, and finally Tweeted that it would shortly be published. This announcement was received with universal gratification. The dismay of Tex’s subjects was all the more intense, therefore, when his code became available and it was discovered that it was truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer. Indignational became general; and soon a protest appeared before Tex’s gaudy palace of gold carrying signs that read, “How can anybody follow discriminatory immigration rules that nobody can understand?”

The GREATER CODE was quickly withdrawn. Reluctantly recognising for the first time that he needed assistance, Tex put a staff of experts who he hadn’t purged to work on a revision. He instructed them to leave the substance untouched, but to clarify the expression throughout. The resulting GREATEST CODE was a model of clarity, but as it was studied it became apparent that its new clarity had merely brought to light that it was honeycombed with contradictions. It was reliably reported by respected journalists that there was not a single provision in the code that was not nullified by another provision inconsistent with it. An even larger protest appeared before the golden palace, carrying signs that read, “This time the king made himself clear – in both directions.”

Once again the code was withdrawn for revision. By now, however, Tex had lost patience with his subjects and the negative attidude they seemed to adopt toward everything he tried to do for them. He decided to teach them a lesson and put an end to their carping. He instructed his remaining experts to purge the code of contradictions, but at the same time to stiffen drastically every requirement contained in it and to add a long list of new crimes such as practicing a different religion or being an immigrant. Thus, where before individuals summoned to the throne were given ten days in which to report, in the revision the time was cut to ten seconds. It was made a crime, punishable by ten years imprisonment to cough, sneeze, hiccough, faint or fall down in the presence of the king (he stressed that he was a germaphobe). It was made treason not to understand, believe in, and correctly profess that fossil fuels and human activity have no impact on climate change whatsoever.

When this GREATEST EVER CODE was sent out on Twitter a near revolution resulted. Leading citizens declared their intention to flout its provisions. Someone discovered in an ancient author a passage that seemed apt: “To command what cannot be done is not to make law: it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.” Soon this passage was being quoted in a hundred petitions to the king.

The code was again withdrawn and a staff of experts chaired with the task of revision. Tex’s instructions to the experts were that whenever they encountered a rule requiring an impossibility, it should be revised to make compliance possible. It turned out that to accomplish this result every provision in the code had to be substantially rewritten. The final result was, however, a triumph of draftsmanship. It was clear, consistent with itself, and demanded nothing of the subject that did not lie easily within their powers. It was printed and distributed free of charge through social media.

However, before the effective date for the new GREATEST EVER CODE, REALLY had arrived, it was discovered that so much time had been spent in successive revisions of Tex’s original draft, that the substance of the code had been seriously overtaken by events. Ever since Tex assumed the throne there had been a suspension of ordinary legal processes and this had brought about a climate of uncertainty for the economy and institutions of the country. Accommodation to these altered conditions required many changes of substance in the law. Accordingly as soon as the new code became legally effective, it was subjected to a daily stream of amendments. Again popular discontent mounted; an anonymous blog appeared online carrying scurrilous cartoons of the king and a leading article with the title: “A law that changes every day is worse than no law at all.”

Within a short time this source of discontent began to cure itself as the pace of amendment gradually slackened. Before this had occurred to any noticeable degree, however, Tex announced an important decision. Reflecting on the misadventures of his reign, he concluded that much of the trouble lay in bad advice he had received from experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could directly control the application of the new code and insure his country against another crisis. He began to spend practically all of his time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring a belated blossoming his long dormant powers of generalisation. His opinions began, indeed, to reveal a confident and almost exuberant virtuosity as he deftly distinguished his own previous decisions, exposed the principles on which he acted, and laid down guidelines for the disposition of future controversies. For Tex’s subjects a new day seemed about to dawn when they could finally conform their conduct to a coherent body of rules.

This hope was, however, soon shattered. As the online record of Tex’s judgments became available and were subjected to closer study, his subjects were appalled to discover that there existed no discernible relation between those judgments and the code they purported to apply. Insofar as it found expression in the actual disposition of controversies, the new code might just as well have not existed at all. Yet in virtually every one of his decisions Tex declared and redeclared the code to be the basic law of his kingdom.

Leading citizens from all walks of life began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne. While these discussions were going on, Tex was impeached for nepotism and conflict of interests, old before his time and deeply unloved by his subjects.

The first act of his successor, President Hex, was to abolish the monarchy and introduce genuine democracy and the rule of law based on the values of non-discrimination and accountability of elected officials.

Coda: During their famous debates in the 1950s over the legality of the Nazi regime and so-called grudge informers, Lon Fuller and HLA Hart disagreed on the role of morality and the law. Hart was swift to point out that Fuller’s concept of the inner morality of the law, and his eight principles of legality, could actually uphold unjust laws. Hart argued that Fuller’s procedural natural law approach failed to engage with the substantive morality of flawed laws, as a legal system may be structurally sound yet still allow unjust laws. Fuller meanwhile countered that when people are ‘compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness…’ Both Hart and Fuller’s arguments have resonance today. The cautionary tale of King Rex was based on some of the most brutal regimes in history. One can only hope that these warnings are heeded over the next four years.

With thanks to my legal theory colleagues Patrick O’Callaghan and Natasa Mavronicola for their illuminating comments.

The concept of ‘international community’ and the International Court of Justice

Link

By Gleider I Hernández

Despite its constant invocation in doctrine, rhetoric and countless international documents, international lawyers still struggle with arriving at a well-defined understanding of the concept of an ‘international community’, whether in identifying the members that compose it, the values and norms that it represents, or the processes which underlie its functioning. The term could be reduced merely to ‘constructive abstraction’, or rhetorical flourish; yet a concept of international community that would be legally operative (create enforceable legal rights and obligations) would require reflection as to the nature of international law and whether it serves the interests of a constituted community.

There are two primary understandings of the concept of ‘international community’. The first that the concept is purely relational: a fully inter-State order, with only a law of co-existence that demands only such rules and norms such as to ensure the survival of members of that society. According to such a view, the members of international society are primarily, if not exclusively, sovereign States. No common interest can be distilled from such a form. The second understanding is not formal, but substantive: the international community would be said to share a number of common interests and fundamental values that the legal order would exist to safeguard. Made legally operative, and embracing a distinct extra-legal element, the claimed ‘promise of justice’ embodied therein would lead to actors and institutions within the system claiming the obligation to protect the community interest.

I sought first to distil the essential differences between the two terms, as the latter understanding especially would empower international actors and institutions to enforce the community’s interest or ‘will’. In many respects, the very identification of the community’s interest is controversial, and as such has not always been specified or made clear in multilateral treaties. Hence, it has been left to judicial institutions, and primarily the principal judicial organ of the United Nations, the International Court of Justice, to elucidate these difficult concepts and to uphold or reject claims based on community interest. What transpired from my research was very interesting. In most cases, the Court was very cautious not to defend an international common interest, instead reading such obligations through a prism of multilateral or bilateral treaty relations: in short, through the prism of consent.

I would like the highlight four cases in which the Court refused to recognise the substantive character of norms claimed to be fundamental to the international community, which we international lawyers call jus cogens (peremptory norms of general international law), and obligations erga omnes (obligations ‘owed to all’). The Court has rejected claims that States sought with respect to indirect injuries (ie not injuries to their territory or to their nationals) against other States in the name of the international community. It rejected, for example, the claims of Ethiopia and Liberia in South West Africa (1966) where they claimed against South Africa for its imposition of apartheid over Namibia in purported violation of the League Covenant and the United Nations Charter. The erga omnes claim was rejected, where the applicants were denied standing on the basis that they could not bring forward an actio popularis (an action brought by a member of the public in the name of public order).

It rejected those of Portugal in East Timor (1995), where that State claimed, on behalf of the people of East Timor, against Australia for treaties that it had signed with Indonesia on the maritime delimitation in the area. Although the Court did not formally declare that Portugal had no standing, it concluded that Indonesia was an indispensable third party to the dispute, and that without Indonesia’s consent, it could not possibly proceed to hear the merits.

The jus cogens or peremptory, non-derogable character of various human rights obligations has fared little better before the Court. In Armed Activities in the Congo (2006), the Democratic Republic of the Congo claimed against Rwanda for various serious human rights violations, including war crimes, crimes against humanity, and even genocide. The Court, for the first time, actually recognised the concept. Yet even though it was willing to concede that the human rights violations could, if proven, constitute violations of jus cogens, it considered that it did not have consent over the dispute. Rwanda’s lack of consent was clear from its ‘reservations’ (unilateral statements tagged on to its ratification of treaties), through which it refused to consent to the Court’s jurisdiction. The Court upheld Rwanda’s lack of consent and declined to proceed to the merits.

Finally, in Jurisdictional Immunities of the State (2012), Germany claimed against Italy’s inaction against the Italian domestic courts, which were not recognising Germany’s immunity in respect of Nazi actions committed in Italy and against Italian nationals. Italy claimed that the jus cogens nature of the violations allowed its courts to ignore Germany’s immunity. However, the Court concluded that, whatever the jus cogens character of the violations committed by Nazi Germany, Germany’s immunity served as a procedural bar in the Italian courts, and Italy had thus violated Germany’s immunity by allowing the claims to go forward.

Taken as a whole, these cases demonstrate that the International Court continues to adhere to a restrictive vision of the international community. Without commenting on whether this is a ‘good’ or ‘bad’ development, it is an important point to make in the light of claims in scholarship that we ought to be assigning greater law-making power to judicial institutions, in particular with respect to the safeguarding of fundamental human rights. The Court’s reluctance may be due to institutional self-preservation, as its jurisdiction remains dependent on the consent of States; but equally so, the Court’s caution may be due to the difficulties and lack of agreement as to the consequences entailed by an embrace of a nebulous community interest that remains yet to be elucidated. In a decentralised, highly indeterminate legal order like international law, perhaps the unwillingness to assume a centralised interpretative role for itself is a statement more on the nature of international law than any value judgment on the concept of ‘community’.

*******************************

http://blog.oup.com/2013/11/international-community-court-of-justice-law-pil/

Dr Gleider I Hernández is Lecturer in Law at the University of Durham, where is he is also Deputy Director of the new Institute for Global Policy. Previously, he served as law clerk to Judges Bruno Simma and Peter Tomka at the International Court of Justice; he holds law degrees from McGill, Leiden, and Oxford universities. His research interests extend to all areas of public international law, and he is especially interested in the nature and function of the international legal system. His first monograph, The International Court of Justice and the Judicial Function, will be published by the Oxford University Press in early 2014. He is the author of “A Reluctant Guardian: The International Court of Justice and the Concept of ‘International Community’” in the British Yearbook of International Law, available to read for free for a limited time.

Through a mixture of articles and extended book reviews it continues to provide up-to-date analysis on important developments in modern international law. It has established a reputation as showcase for the best in international legal scholarship and its articles continue to be cited for many years after publication. In addition, through its thorough coverage of decisions in UK courts and official government statements, The British Yearbook of International Law offers unique insight into the development of state practice in the United Kingdom.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at: http://blog.oup.com/2013/11/international-community-court-of-justice-law-pil/#sthash.HYG6TUAK.dpuf

The final judgement in the trial of Charles Taylor

By Simon Meisenberg

The trial of former Liberian President Charles Taylor moved the Special Court for Sierra Leone (SCSL) into the limelight of international criminal justice for the last half decade. Without any doubt, the presence of a former Head of State in the dock drew international attention to the smallest of the ad hoc international criminal courts. The Appeals Chamber of the Special Court for Sierra Leone (SCSL) has now announced that it will render the appeal judgment in the case of Charles Taylor on 26 September 2013 at 11.00 a.m. CET. Taylor, who is in his sixties, was found guilty by the trial panel and sentenced to 50 years of imprisonment. Given the importance of the Taylor case, the forthcoming issue of the Journal of International Criminal Justice contains a special symposium on the Taylor Trial Judgment and the future of the Residual Special Court. The symposium, edited by Laurel Baig and myself, features articles by Kai Ambos and Ousman Njikam on “Charles Taylor’s Criminal Responsibility,” Kevin Jon Heller on “The Taylor Sentencing Judgment,” Fidelma Donlon on the “Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone,” and Kirsten Keith on “Deconstructing Terrorism as a War Crime.”The Taylor trial is the first completed criminal appeals process judging a former Head of State in modern international criminal law. There has been much debate about whether the SCSL was truly the first international criminal tribunal to have tried a head of state, pointing to the conviction of Karl Dönitz at the International Military Tribunal in Nuremberg, who was the Head of State of the Nazi German Reich for about 20 days before Germany’s capitulation. But as the IMT did not have any appeal process, let’s simply give the credit to the SCSL of being the first ever to have accomplished such an historical task. The magnitude of this accomplishment is illustrated both by how long it has taken for the international community to fully try a former head of state and the practical challenges encountered by other courts, such as the incomplete Milosevic trial before the ICTY or the failure to arrest of Bashir for trial at the ICC. From a legal perspective, however, the SCSL should not be judged simply by such an historic achievement, but rather by the soundness of its legal and factual findings.  A daily news chalk board in Monrovia, Liberia. Photo by Lieutenant Colonel Terry VandenDolder, U.S. Africa Command. Public domain via Wikimedia Commons. The Achievements of the SCSL Looking back at the SCSL’s activities since mid-2002, when the first investigations started, it is obvious that bringing Charles Taylor to trial was not an easy task. The Court was plagued with challenges: financial constraints, challenging legal questions, the staggeringly slow pace of proceedings, lacking interest from the Sierra Leone population towards the end of the mandate, the precarious security situation in the first years of operations, the difficult relationship with the Truth and Reconciliation Commission. Then add further challenges unique to the Taylor proceedings such as the need to operate in three different countries and two different continents. These are only a few challenges amongst many more that endangered the success of this shoestring court. At the end of the day, SCSL has overcome these challenges to complete its mandate and contributed to Sierra Leone’s transition to peace and democracy. In retrospect, many of the problems encountered by the court now appear to be less acute in comparison to the other hybrid experiences in international criminal law. Initially the sponsors of the court wished the court to deliver justice within three years. In the end it took more than a decade to accomplish the mandate. The Taylor trial alone lasted over six years. In its eleven years of existence, the SCSL issued 13 indictments against members of all warring factions resulting in eight convictions (not counting the Taylor conviction at the trial level, which if upheld would be the ninth). Only one accused, Johnny Paul Koroma, was never arrested and is believed to be deceased. Two accused (Foday Sankoh and Sam Bockarie) died shortly after charges were laid against them. Sam Hinga Norman died shortly before his judgment day in the Civil Defence Forces trial. Apart from those main “atrocity” trials, twelve contempt proceedings were initiated by the Prosecution resulting in ten convictions (one contempt case is still pending on appeal; one resulted in an acquittal, which so far is the one and only acquittal issued by the SCSL). Following the Taylor Appeal Judgment, the SCSL will “transform” into the Residual Special Court for Sierra Leone (RSCSL) shortly after the completion of its mandate. According to the RSCSL statute this residual court will “continue the jurisdiction, functions, rights and obligations” of the SCSL. The developments leading to and the structure and work of this future organisation are explained in detail by Fidelma Donlon in the JICJ Symposium. The Taylor Case and the Appeals Judgment Taylor is accused of four charges of crimes against humanity (murder, rape, sexual slavery, other inhumane acts (i.e. mutilations), and enslavement), four charges of violations or Article 3 Common to the Geneva Conventions and of Additional Protocol II (acts of terrorism, murder, outrages upon personal dignity, cruel treatment, pillage) and for the conscription, enlistment or use of child soldiers. It is alleged that he committed those crimes on Sierra Leone soil from 30 November 1996 to 18 January 2002 remotely from Liberia. Taylor was found guilty on all 11 counts by the trial judges on 26 April 2012. Even though Taylor’s conviction at trial may not have surprised the casual observer, he was actually convicted for far less than was initially charged by the prosecution. The prosecution was of the view that Taylor acted in concert with the leaders of the rebel movements in Sierra Leone (i.e. the RUF and AFRC) and that he and his co-conspirators shared the intend to commit all the crimes perpetrated in the Sierra Leone civil war. The judges rejected this claim, finding that the prosecution failed to proof the allegation that Taylor forged an agreement with the Sierra Leone rebels to commit crimes against the Sierra Leone population. The Trial Chamber instead considered Taylor as an accessory and convicted him for aiding and abetting and planning crimes in a narrower time frame, i.e. from August 1997 to 18 January 2002. It found that Taylor aided and abetted by providing practical assistance, encouragement or moral support to the RUF in the commission of crimes during the course of their military operations in Sierra Leone. In that respect the Trial Chamber noted that “a common feature of all of the aforementioned forms of assistance is that they supported, sustained and enhanced the functioning of the RUF and its capacity to undertake military operations in the course of which crimes were committed” (Taylor Trial Judgment, para. 6936). It importantly and rather controversially held that the military operations of the RUF and RUF/AFRC were “inextricably linked to the commission of the crimes charged in the Indictment” (Taylor Trial Judgment, para. 6936). An individualized assessment of Taylor’s contribution to the specific crimes committed on Sierra Leone territory was therefore unnecessary. It was sufficient to simply proof that Taylor sustained the military operations of the rebels. As such military operations were, according to the Trial Chamber, “inextricably linked to the commission of the crimes” no proof to the substantial contribution to the individual crimes was any longer necessary. The Trial Chamber additionally found that Taylor devised a plan to attack major towns and the capital Freetown in late 1998 and early 1999 during which crimes were committed. Regarding his knowledge, the Trial Chamber found that Taylor was aware of the atrocities from at least the time when he assumed the presidency in Liberia in August 1997. Many of the defence challenges on appeal questioned the evaluation of evidence by the trial judges. The facts of the case, and of the civil war more generally, were unsurprisingly complex. The trial judgment had to rely extensively on hearsay and circumstantial evidence. Some of the more troubling approaches to fact finding by the SCSL Chambers have been highlighted by Nancy Combs in her seminal book on “Fact Finding without Facts” and much of the same judicial attitudes towards inconsistencies and contradictions can be found in the Taylor Trial Judgment. It will be interesting to see how the Appeals Chamber addresses such challenges or whether it will simply rely on the principle that a “margin of deference” will be given to the fact finding of the Trial Chamber. Apart from evidentiary questions one of the most controversial points on appeal will be the definition of aiding and abetting and whether this mode of attribution requires that the accused contributed with “specific direction” towards a crime. The Trial Chamber was of the opinion that the actus reus of aiding and abetting did not require such “specific direction”, relying on ICTY precedents in the Perišić Trial Judgment and Mrkšić Appeal Judgment. As other SCSL cases did in fact require such an element the rejection in the Taylor case is notable (RUF Trial Judgment, para. 277; CDF Trial Judgment, para. 229). In the Perišić Appeals Judgment, however, the ICTY Appeals Chamber controversially held that “specific direction” is a necessary element of aiding and abetting holding that:“[I]n most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.”More importantly, the SCSL Appeals Chamber’s own jurisprudence on this point is remarkable. In the CDF case it relieved an accused from criminal responsibility for aiding and abetting for providing military equipment, which was later used in the commission of crimes. At the time of his contribution CDF fighters were notorious for committing crimes against civilians. The Appeals Chamber stated that “the provision of logistics is not sufficient to establish beyond reasonable doubt that [the accused Fofana] contributed as an aider and abetter to the commission of specific criminal acts in Bo District” (see CDF Appeals Judgment, para. 102). The similarities with the Taylor case are striking and it will be interesting to see whether the Appeals Chamber will apply the same standards to Taylor. In a critical analysis of the Trial Chamber’s legal findings, Kai Ambos and Ousman Njikam highlight some considerable deficiencies in the Taylor Trial Judgment, placing the judgment’s assessment within the broader international criminal law jurisprudence on individual criminal responsibility by addressing the effect of the recent Perišić Appeal Judgment. As mentioned above, the significance of the Taylor case is usually attributed to the fact that Taylor was indicted as the sitting Liberian head of state. The Appeals Chamber dismissed the legal questions surrounding any claims of immunity in 2004, before Taylor’s arrest and initial appearance in spring 2006 (when Taylor had already stepped down from his presidency). Any questions of immunity will therefore not feature in the forthcoming Appeal Judgment. His “special status” as a Head of State at a time when he allegedly contributed to the crimes in Sierra Leone was however considered as an aggravating circumstance in the sentencing judgment of the Trial Chamber. This “special status” and the extraterritoriality of Taylor’s acts trumped all mitigating circumstances. A detailed critique of the Sentencing Judgment by Kevin Jon Heller in the JICJ symposium points to some of the possible flaws of the 50 year sentence, in particular addressing the fact that Taylor was convicted as an accomplice and not as a principal. Comparing the sentence received by Taylor with other SCSL convicts, Heller concludes that the 50 years sentence may be disproportionate. The fact that the extraterritoriality of Taylor’s acts was considered as an aggravating circumstance is striking. Here the Chamber’s silence on the nature of the conflict in its verdict is notable. Other SCSL judgments found that despite the alleged assistance from Liberia, the nature was non-international in character. If this holding is correct, crimes committed in international armed conflicts would routinely deserve a higher penalty. The historical pronouncement of the Appeals Chamber Judgment will be accessible over live stream. Simon Meisenberg is a Legal Advisor, Extraordinary Chambers in the Courts of Cambodia (since 2011); former Senior Legal Officer (2009-2011) and Legal Officer (2005-2009) in the Special Court for Sierra Leone. Laurel Baig is the editor of the forthcoming symposium from Journal of International Criminal Justice entitled, Symposium: Last Judgment – The Taylor Trial Judgment and the Residual Future of the Special Court for Sierra Leone. This issue will be published online imminently, and all articles mentioned in the text of this blog post will be freely accessible for a limited time. The views expressed here are those of the author alone, and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia, or the United Nations in general. The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions. Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at: http://blog.oup.com/2013/09/charles-taylor-trial-judgement-special-court-sierra-leone-pil/#sthash.IxqeupA3.dpuf

How can a human being disappear?

On the 30th of August the United Nations observes the International Day of the Victims of Enforced Disappearances. Emmanuel Decaux (President of the UN Committee on Enforced Disappearances) and Olivier de Frouville (Chair and Rapporteur of the Working Group on Enforced or Involuntary Disappearances (WGEID)) have taken the time to consider a few questions with us in recognition of this important observance day, which was established by the UNGA (resolution 65/209, para. 4).

Installation on the Disappeared on the day of the celebration of the 8th anniversary of the Peruvian Truth and Reconciliation Commission, Plaza San Martin, August 26th, 2011. Photo by Catherine Binet. Creative Commons License via The Advocacy Project Flickr.

Installation on the Disappeared on the day of the celebration of the 8th anniversary of the Peruvian Truth and Reconciliation Commission, Plaza San Martin, August 26th, 2011. Photo by Catherine Binet. Creative Commons License via The Advocacy Project Flickr.

How can a human being ‘disappear’? What does this term represent?

Emmanuel Decaux: There is a big difference between a “missing person” and an enforced disappearance, with a secret detention of a person and a denial of his whereabouts. The legal definition of enforced disappearance implies an imputability to the State, which can act directly by its agents (such as the police or armed forces), but also indirectly, by giving its authorization, support, or acquiescence to non-State actors (such as paramilitary groups or clandestine forces). When private actors are responsible and the State is not involved, neither directly nor indirectly, its duty is to find the disappeared person and to prosecute the perpetrators. However, in this case we are referring to a crime of “droit commun” (common law) and not a crime of the State. The Convention of 2006 takes a step further in calling on States to investigate acts committed by persons or groups of persons acting without its authorization, support, or acquiescence and to bring those responsible to justice. But the main responsibility is the responsibility of States, by action or by omission.

Olivier de Frouville: Enforced disappearance is a technique of terror. Victims of disappearances do not disappear willingly or by accident. They are the victims of a crime, consisting in the deprivation of their liberty, and the subsequent denial of that deprivation of liberty or the refusal to provide any information about the fate or the whereabouts of the disappeared person, thus placing this person outside the protection of the law. Enforced disappearances are part of counter-subversive strategies used by some intelligence services and security personnel, together with torture and summary executions. Typically, a number of persons are arrested, in an effort to obtain information and dismantle illegal groups or simply to terrorize the civilian population and obtain obedience.

Many people associate the term ‘disappeared’ (Desaparecidos) with the crimes carried out by Pinochet’s regime. Is this the origin of the term?

Emmanuel Decaux: The phenomenon was not new but its systematic use was a characteristic of military regimes in Latin America. They established between them a secret transborder cooperation with the Condor plan. It explains the concern of Latin American countries, with both a regional instrument and also a leading role in the UN system. But we have to say that every country ought to be concerned by enforced disappearance, not only due to military dictatorships or civil wars, but also in democracies, as we’ve seen in the reports of the APCE on the network of secret detentions of the CIA and the case law of the European Court on Human Rights. The legal nature of the Convention could be a motivation for all States to take preventive measures, looking to the future rather than only at the past, and to fully cooperate with others States in an international framework.

Olivier de Frouville: If you read the Nacht und Nebel Decree signed by Keitel in 1941, you will find an exact description of what enforced disappearances are. This is a codification of the practice, condemned as a crime against humanity and a crime of war by the International Military Tribunal in Nuremberg:

“The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, brutality and terror. On 7 December 1941 Hitler issued the directive since known as the ‘Nacht und Nebel Erlass’ (Night and Fog Decree), under which persons who committed offenses against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial or punishment in Germany. This decree was signed by the Defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases where they died awaiting trial, the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person.”

Hitler’s purpose in issuing this decree was stated by the Defendant Keitel in a covering letter, dated 12 December 1941:

“Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. The aim is achieved when the criminal is transferred to Germany.” (Nuremberg Judgement, IMT Serie, vol. I, 232-233)

Other interesting analysis of the NN Decree is included in the Justice Case (4 December 1947, TWC, vol. III, 1057-1058). The practice seems to have been revived during the colonial wars in an effort to find new techniques to dismantle illegal armed groups and their cells. It was then exported to Latin America, and then used extensively in the context of the Condor plan. Afterwards, it spread all over the world.

How can international law make a difference?

Emmanuel Decaux: The elements of the crime of enforced disappearance are already violations of international human rights law, as a breach of such basic rights as to the right to life, the prohibition of torture, the “right to recognition everywhere as a person before the law,” the due process of justice, etc. There is a strong case law of the Human Rights Committee and of regional Courts, such as the European Court of Human Rights or the Inter-American Court of Human Rights, in this field. But the “complex phenomenon” of enforced disappearance was not dealt as such in its systematic nature.

The new trend of international law is to stick to the core element and to create a new human right, the right to not being subjected to enforced disappearance and to organise the international cooperation in matters of prevention, protection, prosecution, and reparation. The first step was the creation of the WGEID in 1980 and the adoption of the Declaration on the protection of all persons from enforced disappearance by the GA in 1992. Another important step was the qualification of enforced disappearance as a crime against humanity by the Rome Statute. The latest development was the adoption in 2006 of a new treaty, the Convention on the protection of all persons from enforced disappearance, which entered into effect on 23 December 2010, after the twentieth ratification. As of today, there are 40 State Parties and the Committee on enforced disappearances (members were elected in May 2011) is fully functioning with 10 independent experts from all regions of the world.

The Convention is at the crossroads of international human rights law and of criminal law. As other treaty-bodies, its main functions are to examine the reports submitted by States parties on the implementation of the Convention and to consider individual communications. But it can also receive and consider urgent actions, undertake country visits, and bring reports of widespread or systematic practise of enforced disappearance to the attention of the UN General Assembly. The Convention qualifies enforced disappearance as a crime and requires States parties to adapt their domestic legislation in order to incriminate enforced disappearance as such, as an autonomous crime. Furthermore it underlines that the widespread or systematic practice of enforced disappearance qualifies as a “crime against humanity” according to the rules of international law. The Convention is also very important to prevent enforced disappearance, with legislative and administrative measures strengthening the rule of law, in order to forbid secret detention and to create accountability. Its last field is the rights of victims, taking into account vulnerable groups, such as children. All these legal obligations taken together constitute a strong framework to fight against impunity and to promote justice.

The Convention created an important momentum and the first goal is to trigger universal ratification and effective implementation. The Committee is the watchdog of the Convention but its broad mandate is to cooperate with other international bodies, such as the Human Rights Committee or the WGEID, and with the International Red Cross Committee (IRCC) and NGOs. The Committee has close links with the WGEID and the International Day is a special occasion for us to pay tribute to the victims and to the struggle of civil society across the world.

Olivier de Frouville: At the time when the Mothers of the Plaza de Mayo in Argentina were challenging the military dictatorship and calling the international community to help them in their quest for truth and justice, enforced disappearances were not well identified as such. Identifying the phenomenon and giving it a legal definition, as well as defining the legal obligations of States, was really the first essential and necessary step towards an effective action against this scourge. The WGEID played a major role to this regard, as it analysed the phenomenon on the basis of the communications and cases it received, and tried both to come up with a legal definition and with a satisfactory legal regime, dealing with all aspects of the problem.

Enforced disappearance is a complex crime and almost all fields of law are affected. It is important to create an autonomous crime of enforced disappearance in the penal code, to submit this crime to universal jurisdiction, but also to provide for integral reparation to the victims, as well as with a strong national mechanism aiming at clarifying the fate or the whereabouts of the victims. Civil status issues are also at stake, as the disappearance of persons leaves pending a whole range of matters, like marriage, inheritance, or guardianship. The disappearance and appropriation of children also create difficult problems. Identification of stolen children can lead to the restitution of their true identity, sometimes against their own will. In many cases, international cooperation is needed, due to the transnational nature of the practice. For instance, in the framework of Condor, citizens from Uruguay or Chile were abducted in Argentina through joint operations undertaken by the intelligence services of both countries, and then taken to Montevideo to be tortured and executed. Unfortunately, this pattern was used again in the context of post 9/11 “war on terror”: the “extraordinary renditions” program is strikingly similar to what happened in Latin America in the past.

What issues is the United Nations Working Group on Enforced and Involuntary Disappearances focused on currently?

Olivier de Frouville: The WGEID did a fantastic job in its first years. If you read the first reports, all the main issues are well-identified. During its 30 years of existence, the WGEID explored those issues on the basis of the communications, allegations, and testimonies it received from families of victims, NGOs, and States. It drafted a number of studies but also, from 1993, “general comments” aiming at interpreting the 1992 Declaration for the Protection of All Persons Against Enforced Disappearances. These general comments can be found on the WGEID’s website.

What we are doing now is revisiting a number of issues in the light of new facts and situations, but also in the light of the evolution of international law. For instance, the idea that there is a right to the truth of the families of the disappeared was asserted in the very first report of the WGEID in 1981. But now it has become an emerging right in international law and it applies not only to enforced disappearances but also to other serious human rights violations. There has been major developments in this field, which led us to adopt a General comment on this issue. Now, there are many new challenges arising and touching upon a broad range of issues. We have recently adopted two new General comments, one on Women facing enforced disappearances (as disappeared persons, as family members, and as being often at the forefront of the fight against enforced disappearances), and another on children (as disappeared and appropriated children, but also as family members). We dedicated our last annual report to new trends in the field of reparation. And we are currently starting a study on the consequences of enforced disappearances on economic, social and cultural rights. Other issues we would like to look at in the coming years are the use of forensic analysis (particularly DNA tests in the search of the disappeared), the prevention of enforced disappearances (particularly the role of habeas corpus), and enforced disappearances during armed conflicts. Strangely, international criminal law recognizes enforced disappearance as a crime against humanity, but not as a crime of war. Of course, we also continue to try to improve our methods of work. Our main task is to provide assistance to the families of the disappeared: we aim at being as efficient as possible in fulfilling this task.

What issues is the Committee on Enforced Disappearances (CED) focused on currently?

Emmanuel Decaux: The CED began its work two years ago with a broad mandate. First it had to adopt the rules of procedure and a lot of legal niceties (guidelines on submission of reports, individual communications, and urgent actions), with translation in an user-friendly manner, in order to liaise with civil society and other stakeholders.

Since its fourth session, the CED started to carry out constructive dialogues with State parties in the context of the consideration of their reports. The first reports to be considered were those of Uruguay and France. Argentina and Spain will follow in November. The remaining reports will be considered by the CED as they are submitted by the other States parties. Germany, the Netherlands, and Belgium have already submitted their reports and they are scheduled to be considered in 2014. The common methodology of consideration of reports includes the preparation of a list of issues followed by an interactive dialogue with the State party concerned and the issuance of concluding observations, containing recommendations on how to meet the obligations stemming from the Convention. This process is carried out with great openness and transparency, including by the acceptance of alternative reports from civil society actors. The examination of reports by the CED is public and webcasted. There is a lot to do in order to timely consider the reports of the 40 States Parties, but it is essential to have this sort of “check-up” within two years after the ratification by any state.

Our second task is to be ready to answer to the communications or information from NGOs dealing with specific issues, such as urgent actions and allegations of serious violations which could lead to a country visit. We have already dealt with some cases related to Mexico, for example, as indicated in our report to the GA. However, it is important to highlight that before conducting a country visit, the Committee endeavors to engage with the State party concerned. We need a greater awareness and on-ground advocacy from the civil society to trigger the mechanisms of the Convention.

The CED is eager to cooperate with States to obtain a full respect of their legal duties and to apply a convention which is victim-oriented. But the first step is accountability, with compliance by States parties with their conventional responsibility of submitting a report on the measures taken to give effect to their obligations under the Convention. We hope that the first steps taken by the CED in a very professional and dedicated manner, will encourage all UN Members States to ratify the Convention as soon as possible as a preventive tool, a sort of “life assurance”.

What do you hope to see in terms of truth, justice, and reparation to victims of enforced disappearances in the coming years?

Olivier de Frouville: Enforced disappearances are not a fatality. This is a technique of terror, which is being taught to intelligence and security officers and allowed to be used by governments in “exceptional circumstances” in a number of situations across the world. We need to make those people understand that, as the Declaration says, no circumstances whatsoever may justify enforced disappearances. Enforced disappearance is torture. It is now widely accepted that there is an absolute jus cogens prohibition of enforced disappearances and a correlative absolute right not to be subjected to enforced disappearances.

The consequence is that enforced disappearance is a serious crime in international law, with all the consequences flowing from it in terms of international responsibility of the State, but also in terms of international responsibility of individual perpetrators. States and individuals must be held accountable. This is the reason why we continue to insist that investigations are undertaken and that perpetrators are punished, but also that the State should take measures to provide for reparations to victims, not only through compensation, but also through rehabilitation and satisfaction. Acknowledgement of the responsibility of the State, rehabilitation of the memory of the disappeared is particularly important.

Huge challenges also remain ahead as far as the right to the truth is concerned. Finding the truth about the fate of disappeared persons implies exhumation and identification of sometimes thousands of victims. This is a very complicated long-term and costly task, especially for developing countries. We need to think more of how to help countries in transition and who are willing to undertake this task but who do not have financial means and technical capacities. What was done by the international community in Bosnia-Herzegovina may serve as example. Even though we are still far from the end of the road in this country, great progresses have been made and a methodology has been defined that could be replicated in other countries.

Finally, we are very much concerned by the situation of those who fight against enforced disappearances on the field: families of victims, sometimes very simple people, human rights defenders, NGOs. Almost every week we receive calls for urgent actions because these peoples are subjected to threats, intimidation, or reprisals. They work in difficult conditions; they are often accused of defending “criminals”. It is hard for a mother who asks for the truth about her son, who has been abducted by the police or the military in front of many witnesses, to be answered: “Your son is a criminal, he fled and is now fighting with the guerrillas.” The fact is that the criminals are those who abducted her son. Another problem we see, especially due to the current times of financial crisis, is that those courageous peoples who are mobilizing themselves against enforced disappearances in their countries are lacking funds. It is more and more difficult to find financial support for what is often perceived by donors as a “politicized” issue, whereas other issues may seem less problematic. This is an absolute shame. There is a responsibility of all donors to strongly support those courageous people who are only asking for justice, truth, and reparation and who are taking all the risks on behalf of all of us.

Emmanuel Decaux is professor of public international law at the University Paris II as well as director of the Center for Human rights and humanitarian law (CRDH). He published extensively on Human Rights International Law. Since 2002, he was member of the Sub-Commision on Human Rights and, subsequently, member of the HRC Advisory Committee. He was elected member of the Committee on enforced disappearances in 2011 and is currently serving as chairperson. Olivier de Frouville is a Professor of Public Law at the University of Paris 2 (Panthéon-Assas), ad interim Director of the Thucydide Center and Deputy Director the Center of Research on Human Rights and Humanitarian Law (CRDH). He is also a member of the Institut Universitaire de France (IUF).

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide.

 

Original article: http://blog.oup.com/2013/08/enforced-disappearance-international-law-pil/

Why Edward Snowden never had a right to asylum

There is nothing that complicated about the Edward Snowden case, but it does involve several overlapping areas of law, international and domestic, and commentators seem to assume there is some sort of accepted hierarchy. The starting point is that he is accused of violating some US domestic criminal law by revealing the activities of the US security service’s surveillance operations as a consequence of prior employment for a contractor to the NSA. When his disclosures came to light, he was in the Hong Kong Special Administrative Region. It is at this point that the complexity of the overlapping legal regimes first generated confusion. The allegation of criminal activity prompted the United States to seek his extradition; Edward Snowden started to explore the possibility of seeking asylum to avoid prosecution in the United States. The processes were parallel, but distinct. The easiest aspect of the confusion to remedy is that relating to asylum. International law does not grant a right to asylum, but at best Article 14 of the Universal Declaration of Human Rights (UDHR) — not legally binding in and of itself — provides for a right to seek and enjoy asylum. Indeed, while much of the UDHR was incorporated in the legally binding International Covenants on Economic, Social and Cultural Rights, and Civil and Political Rights, Article 14 made it into neither, so only if it has achieved customary status can one find a binding obligation to allow him to even seek asylum. Asylum itself is in the grant of the state and depends on domestic laws and procedures. There are multiple extradition aspects to this case. First, extradition generally requires some form of agreement between the requesting and requested states, initially between the US and the HKSAR and now Russia. There is an extradition arrangement with HKSAR in force since 1998, but none with Russia. Moreover, if he were to be offered asylum, there would be nothing to stop the US filing a request with that state if there was some form of agreement between them. Extradition arrangements are specific to each agreement, but there are some generic concepts, such as extradition crimes, double criminality, and the political offence exception. In Edward Snowden’s case, those three elements raise some particular issues. It is beyond the scope of this piece to explore the domestic US law he might have violated, but the facts and offences would have to be criminalized under the law of the requested state as much as the US before extradition could be permitted. Moreover, extradition treaties generally exempt from surrender those accused of offences of a political character. Courts in different countries have interpreted the political offence in different ways, but it is never enough to have a political motivation. Further, while espionage (if that is indeed what Edward Snowden is alleged to have committed) may seem the archetypal political offence, it has received a mixed reception in the courts depending in part, according to some case law, on whether he might have gained any financial benefits. Finally, more modern extradition treaties often include human rights guarantees such that surrender cannot be granted to the requesting state, the US, if the alleged fugitive’s rights would be violated. While the extremes of the Bush regime’s activities in Guantànamo are not something Edward Snowden need fear, the requested state might feel the need to impose conditions on the type and maximum length of any prison sentence following a conviction. The United States does not allow individuals to petition for international review of its domestic decisions, so the onus is on the requested state to establish such protection in advance (see Judge v Canada). Extradition and deportation are two different processes, although both remove an individual from a state. In the latter case, however, the domestic immigration law simply requires a non-national to depart and there need be no required destination, except that only the state of nationality has an obligation to receive anyone in normal circumstances and Edward Snowden is still a US national. One area of law that does affect deportation is international refugee law under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Refugees cannot be subjected to refoulement to the frontiers of a territory where their life or freedom would be threatened. However, to be a refugee, the applicant has to have a well-founded fear of persecution for one of five grounds, including political opinion, and Edward Snowden does not fear persecution, rather prosecution. The law itself is not persecutory and is not being applied only because he is in political disagreement with the surveillance procedures. Furthermore, Article 1F of the 1951 Convention excludes from refugee status those with respect to whom there are serious reasons for considering that they have committed a serious non-political crime, but that would just rehearse the earlier debates on political offences. Finally, one comes to the issue of asylum. Asylum is in the grant of the state. Ordinarily one seeks it on the territory of the relevant country, although states in Central and South America accept applications in their embassies. The Julian Assange case shows that Ecuador, at least, applies that outside the region. So far, Nicaragua, Venezuela, and Bolivia have offered Edward Snowden asylum if he can get there from Moscow. States are at liberty to let anyone they please in to their territory. It can be presumed that if they grant him asylum, they would not extradite him to the US if they received a request; all three states have extradition arrangements with the US. However, all three are democracies and a subsequent government may not feel obliged to respect that grant. Cesare Battisti had been given asylum in France, but when the Sarkozy regime threatened to send him back to Italy, he ended up fleeing to Brazil where his eventual protection depended on the President, not the courts.

http://blog.oup.com/2013/07/why-edward-snowden-never-had-a-right-to-asylum/?utm_source=feedblitz&utm_medium=FeedBlitzRss&utm_campaign=oupblog

Geoff Gilbert is a Professor and Head of School in the School of Law and Human Rights Centre at the University of Essex. He has been Editor-In-Chief of the International Journal of Refugee Law (Oxford University Press) since 2002. He was founding Director of Studies for the Thematic Refugees and Human Rights Course from 2005-2007 with the UNHCR; Director of the Organization for Security and Co-operation in Europe (OSCE) training program for judges on combating torture in Serbia and Montenegro; and Special Adviser to the Parliamentary Joint Committee on Human Rights on the ‘Treatment of Asylum Seekers, 2006-07’.

International Journal of Refugee Law

The International Journal of Refugee Law serves as an essential tool for all engaged in the protection of refugees and finding solutions to their problems. It regularly provides key information and commentary on today’s critical issues, including: the causes of refugee and related movements, internal displacement, the particular situation of women and refugee children, the human rights dimension, restrictive policies, asylum and determination procedures, populations at risk, and the conditions in different countries.

Subscribe to the OUPblog via email or RSS.

Subscribe to only law articles on the OUPblog via email or RSS.