The United States Supreme Courts should restrict the President’s war powers authority to indefinitely detain, on the grounds that the Geneva Conventions confer a private right of action

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The United States Supreme Courts should restrict the President’s war powers authority to indefinitely detain, on the grounds that the Geneva Conventions confer a private right of action.


Advantage one is modeling
Judicial abstention from detention authority has obliterated the international credibility of the Supreme Court

Gruber, 11

(Law Prof-University of Colorado, “An Unintended Casualty of the War on Terror,” 27 Ga. St. U.L. Rev. 299)

As the dust of the Bush administration's war on terror settles, casualties are starting to appear on the legal battlefield. The United States' human rights reputation and the Supreme Court's international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration because in fact it handed down several opinions setting limitations on the administration's treatment of terror detainees. While these cases, notably Hamdan v. Rumsfeld, set forth domestic law limitations, their conspicuous effort to avoid giving the Geneva Conventions the force of law served to confirm world opinion that the Supreme Court is "out of step." This Essay demonstrates how the Court's avoidance of the treaty status issue in Hamdan not only contributed to the perception of American legal exceptionalism but also paved the way for the single most anti- international opinion in Supreme Court history, Medellin v. Texas. In Medellin, the Supreme Court adopted a legal stance that creates near impassable barriers to the domestic enforcement of treaties. Nonetheless, as President Obama ruminates on maintaining military tribunals and courts brace for another round of terrorism cases, the Supreme Court may yet have a chance to narrow the reach of Medellin, confirm the enforceability of the Geneva Conventions, and restore its international influence. The United States' war on terror has produced a lesser-discussed but very important casualty: the international reputation of the Supreme Court. Today, many scholars both within and outside the United States note the dwindling influence of the U.S. Supreme Court, as evidenced by declining worldwide citation. On September 17, 2008, the front page of the New York Times declared, "U.S. Court Is Now Guiding Fewer Nations." n1 The article observes that citations to the Canadian Supreme Court and European Court of Justice are on an upswing, especially in cases involving human rights, while, according to Professor Anne Marie Slaughter, "We are losing one of the greatest bully pulpits we have ever had." n2 The bottom line is that much of today's world views U.S. Supreme Court opinion as antiquated and out-of-step with modern constructions of global rights and obligations. n3 To be sure, several aspects of American legal practice garnered international disfavor even before the September 11 attacks, notably the nation's continued legal support for the death penalty. n4 Subsequently, the war on terror and its concurrent destruction of civil liberties, embrace of torture and indefinite detention, and contempt for international humanitarian law cemented the widespread view of America as the prototypical abuser of human rights rather than guarantor. n5 In short, the courts of the world are [*301] saying that if the U.S. does not respect international and foreign law, international and foreign courts will not respect the U.S. n6 As President Obama recedes from his initial stance against ad hoc military justice n7 and federal courts prepare for another round of military tribunal challenges, n8 we should remain poignantly focused on the reputational damage caused by the Bush administration's "cowboy adventure into totalitarianism," n9 which was permitted to push forward even by "liberal" "obstructionist" Supreme Court decisions. n10 As we move into a new era of international relations and (hopefully) respect for human rights, the time is ripe to learn some lessons about what was and what was not decided in the Supreme Court terrorism cases. This Essay highlights how an unfortunate misstep in the seemingly internationalist Hamdan v. Rumsfeld n11 decision paved the way for a jurisprudence of hostility toward international law. In this way, progressive Justices actually became complicit in the legal isolationist ideology so prevalent during the Bush era, which led the courts of the world to abandon the Supreme Court. [*302] I. A Globalist Court in an Age of Nationalism There can be little dispute that during the Bush administration years, especially those immediately following September 11, internationalism fell out of popular and political favor. Guantanamo, renditions, torture, and the unilateral invasion of Iraq served as stark examples of the United States' go-it-alone mentality regarding human rights and humanitarian law. This attitude was arguably a continuation of the administration's pre-September 11 "exceptionalist" n12 approach to human rights. n13 Foreign jurists and human rights supporters had already been shocked at President Bush's "unsigning" of the Rome Statute, thereby withdrawing support for the International Criminal Court, n14 and the United States' refusal to participate in international environmental regulation. n15 Of course, after September 11, as isolationist sentiment rose, America's acceptance of international law further decreased. Indeed, many Americans, including important legal actors, openly express contempt for international law and legal institutions. n16 In this view, international human rights law is a dirty phrase synonymous with loss of American sovereignty and radical liberal ideology. n17 Following September 11, isolationist sentiment intensified as society became increasingly averse to international law, foreign values, and [*303] even foreigners. n18 Today, conservatives warn against the corrupting influence of foreign practices and characterize international law as a product of "elite" law professors who are not representative of the nation's views. n19 The body of international scholars has been described by even prominent law professors as either "feather boa-wearing" n20 liberal snobs intent on imposing patrician continental norms on ordinary American folk, n21 or worse, terrorism sympathizers. n22 One professor characterized the Supreme Court's citation of foreign and international sources as a product of "aristocratic" global "bonding" sessions at "Lake Como or the South of France." n23 However, if the executive's actions and public opinion confirmed to the world that the United States disdains international law, what about actions of the Supreme Court itself? In the early part of the decade it appeared that an emerging globalist Supreme Court attitude could provide a much-needed foil to the existence and perception of American legal exceptionalism. n24 Justices Breyer, Ginsburg, and former Justice O'Connor vocally extolled the importance of [*304] international and comparative law in domestic constitutional jurisprudence. n25 In the 2003 decision Lawrence v. Texas, the Court cited international norms as part of its analysis striking down anti-sodomy laws. n26 In 2005, the Court took up the hotly-contested issue of the juvenile death penalty in Roper v. Simmons. n27 In a move that many conservatives saw, and continue to see, as an all-out assault on American values and sovereignty, the Court cited international sentiment as "confirmation" of its formal conclusion that putting juveniles to death is cruel and unusual. n28 Many, like Justice Ginsburg, believed that the Court's "'island' or 'lone ranger' mentality [was] beginning to change." n29 The Supreme Court was in the midst of a modest revolution, inching towards globalization despite great internal conflict n30 and external controversy. n31 At the same time, the Court was asked to [*305] assess the parameters of the Bush administration's war on terror. Here, political sides had been quickly drawn regarding constitutional restraints on executive war- making power, n32 with conservatives generally arguing for unfettered or near limitless executive authority and liberals favoring significant congressional and judicial oversight. n33 Lurking in the substrata of the various civil liberties-versus-national security debates was a bubbling political polarization over the enforceability of international law. The Geneva Conventions n34 were arguably the greatest threat to the Bush administration's ability to wage the war on terror in any manner it saw fit, even greater than the Constitution. There is very little language in the Constitution regarding presidential war power, and the principle that during war the President can bypass other constitutional provisions is largely a creature of expert commentary and sparse case law. n35 Because the "law of war" is therefore extra-constitutional, it provided the Supreme Court a virtual tabula rasa [*306] legal regime on which to scrawl its limitations (or non-limitations). n36 Thus, the Bush administration could reasonably hope to exploit the atmosphere of fear and hysteria surrounding September 11 in favor of an expansive judicial reading of constitutional war power. n37 By contrast, the Geneva Conventions lay out with clarity and great specificity how governments must treat prisoners of war, civilians, and others during times of armed conflict. n38 The treaty accordingly represented a significant potential restraint on how the Bush administration could treat detained Afghan and al Qaeda fighters. From the beginning, the Bush administration pursued a policy of "lawyering" the Conventions n39 and setting forth numerous textual arguments, from specious to plausible, as to why they do not apply to the Guantanamo detainees. n40 It was obviously important for public relations reasons that the administration find a way to convince the [*307] public that it was in compliance with the Conventions, n41 but in the legal arena the administration advanced an argument for the wholesale jettisoning of the Geneva Conventions in domestic courts: "Non-self-execution." The administration claimed simply that as non-self-executing treaties, the Geneva Conventions could not be enforced by individuals in U.S. courts. n42 In turn, the formerly legalistic question of treaty execution became as highly politicized as the civil liberties-versus-national security debate. Of course, the question of treaty execution long predated the war on terror. The status of treaties is mentioned in the very text of the Constitution, in the Supremacy Clause, which declares that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." n43 During the early years of our republic, the fact of treaty supremacy was relatively apolitical and apparently accepted. n44 The period immediately following World War II saw a flurry of international legal activity and thrust the question of treaty supremacy into the foreground. n45 Since that time, there has been steadily growing hostility in certain legal, academic, and political circles to the concept that treaties created in part or whole by "foreign entities" are binding [*308] domestic law. n46 Although a topic of moderate activity in lower courts, until the last few years the Supreme Court had said very little on the issue and had not adopted the position that treaties are generally non-self- executing. n47 It was upon this historical, political, and legal background that the Supreme Court rendered its 2006 decision in Hamdan v. Rumsfeld, invalidating Bush's military tribunals because they violated the Uniform Code of Military Justice (UCMJ). n48 The decision caused a feeling that can be fairly characterized as jubilation among progressives and internationalists. n49 Yale Law School dean and international lawyer Harold Koh declared that the Hamdan case "finally beg[a]n the much-needed process of turning the legal world right-side up again." n50 International law scholar George Fletcher dubbed Hamdan a new beginning for international law in the United States. n51 Perhaps, however, internationalists were advancing a premature "mission accomplished" declaration. Upon further examination, the Hamdan majority opinion is remarkable in its [*309] judicial restraint. Although it invalidated Bush's tribunals, it did so on the narrow ground that they violate the UCMJ, a domestic statute that was about to be superseded by the Military Commissions Act (MCA). n52 Hamdan did not pronounce any significant constitutional limitations on presidential war power, n53 nor did it reach the overriding foreign relations question of treaty execution. n54 Hamdan indeed would have been one of the greatest internationalist victories had the Supreme Court been willing, after nearly fifty years of silence, to recognize the force of international law in the face of decades of growing post-World War II isolationism that pinnacled after September 11. Unfortunately, the Court appeared to fear weighing in on the issue and went to great lengths to stay mute on whether the Geneva Conventions constitute valid domestic law. The Hamdan majority's refusal to comment on the status of the Conventions left open a dangerous door for a divided Court, now politically polarized over the treaty execution issue, to finally adopt an isolationist stance toward treaty execution. This is the precise door the Court walked through with its March 25, 2008 decision, Medellin v. Texas. n55 What started out as fear of international human rights law in Hamdan went to loathing in Medellin, as the Court for the first time formally sanctioned the United States' ability to double deal in international relations. n56 But before discussing Medellin, two [*310] preliminary questions call for examination. First, what is the status of treaties in U.S. domestic law? Second, why was Hamdan's approach to the Geneva Conventions harmful to the Supreme Court's international reputation?
The plan restores the image and influence of the Supreme Court—detention ruling key

Gruber, 11

(Law Prof-University of Colorado, “An Unintended Casualty of the War on Terror,” 27 Ga. St. U.L. Rev. 299)

V. A Second Chance for the Geneva Conventions

It appears likely that the Supreme Court will not rule on the domestic enforceability of the Geneva Conventions any time soon. Congress, through the MCA, has now set forth specific processes governing military trials of "alien unlawful combatants." These tribunals obviously comply with any constitutional mandate that military tribunals be established by both political branches of government. n178 The fact that Congress has approved the tribunals also [*332] helps to satisfy Common Article 3's requirement of a "regularly constituted court." Indeed, the MCA proclaims itself to be in compliance with Common Article 3. n179 Experts, however, argue that in fact many of the procedures in the MCA are incompatible with Common Article 3's requirement that courts provide "all the judicial guarantees [which are] recognized as indispensable by civilized peoples." n180 Conceivably, then, a detainee subject to military trial under the MCA could assert that his Geneva rights are being violated. If such a case were to arrive at the Supreme Court, the Court would not be able to "backdoor" the Geneva Conventions through UCMJ Article 21, as it did in Hamdan, because the MCA expressly replaces the UCMJ where inconsistent. n181 Thus, in order to enforce such a detainee's Geneva rights, the Court would have to decide the self- execution question. Of course, the Supreme Court might simply find that the MCA complies with Common Article 3, rendering a decision on self-execution unnecessary, or strike down the tribunals on domestic grounds. Moreover, it could possibly bypass the self-execution question all together by holding that the MCA replaced contrary Geneva provisions as a "last-in-time" statute. n182 However, courts generally look for clear language before finding that a treaty has been superseded by statute. n183 Although the MCA does seek to stop [*333] individual invocations of the Geneva Conventions in military trials, elsewhere it confirms that the Geneva Conventions retain the force of international law. n184 If the MCA is insufficiently clear to constitute an express repeal of Geneva, the novel question becomes whether Congress, without repealing a treaty, can "unexecute" it, that is, force it to become non-self- executing. n185 This is, however, a question the Court will not likely address, given that military tribunals are being phased out and the number of detainees is decreasing. Since the June 2008 decision in Boumediene v. Bush permitting detainees to bring habeas corpus petitions despite the MCA's habeas-stripping provisions, n186 district courts have demonstrated a willingness to release detainees. For example, the district court for the District of Columbia ordered the release of Boumediene and several others on the ground that the government failed to prove by a preponderance of the evidence that they were "enemy combatants." n187 Hundreds of other detainees have been released discretionarily and, as of the writing of this Essay in January 2010, only 196 remain. n188 On January 22, 2009, President Obama signed an Executive Order to shut down the Guantanamo facility [*334] within a year and harmonize U.S. interrogation tactics with the Geneva Conventions. n189 The one terrorism detention case pending at the time before the Supreme Court that might have brought the Geneva Conventions back into play, Al-Marri v. Pucciarelli, n190 was rendered moot in February 2009 when President Obama transferred Al-Marri's case to the criminal system. n191 Still, recent events have served to revive the debate over military tribunals. The one-year deadline for closing Guantanamo has come and gone. n192 Moreover, President Obama, apparently under pressure from Congress, has retreated from his commitment to permanently close the Bush terrorism play- book. n193 He now endorses military trials, albeit under an apparently more civil-rights oriented version of Bush's commissions, n194 and supports indefinite detention of certain [*335] terror suspects. n195 Meanwhile, trials under MCA procedures are on- going. n196 As a consequence, the possibility that the Supreme Court will have another opportunity to rule on Geneva's applicability to the war on terror still exists. If the occasion arises, the Supreme Court will have another chance to turn "the legal world right-side up again" n197 and to show that it is not a "lone ranger" n198 by affirming the domestic enforceability of the Geneva Conventions. Although Medellin may have created yet another legalistic barrier between the "war" detainees n199 and their human rights, the case leaves some room for a future decision giving effect to the Geneva Conventions. Conclusion As President Obama inches ever closer to embracing the "twilight zone" model of terrorism law, it would be wise to keep in mind the reputational harm the Bush administration's war on terror caused the United States. One human rights advocate warned the Obama administration, "The results of the cases [tried in military commissions] will be suspect around the world. It is a tragic mistake to continue them." n200 More than just a source of embarrassment, there are real consequences to America's sullied international reputation. Our experiments with "alternative" military justice not only affect [*336] our high court's world influence, they operatively prevent the United States from assuming a leadership role in defining and defending international human rights. For example, in 2007, the Chinese government responded to the U.S. State Department's annual human rights report by stating that America had no standing to comment on others' human rights violations given its conduct of the war on terror. Specifically, the Chinese characterized the United States as "pointing the finger" at other nations while ignoring its "flagrant record of violating the Geneva Convention." n201 Supreme Court validation of treaty law would no doubt help repair the international reputation of the United States. n202 The lesson here is about fear and missed opportunity. Guantanamo stands as a stark reminder of the great importance of international humanitarian law during times of crisis. The Geneva Conventions were the very barrier between terrorism detainees and a government regime singularly committed to national security through any means possible. Unfortunately, when international law mattered most, even the liberal Supreme Court justices avoided cementing its legal status. By contrast, Medellin, a convicted murderer, was apparently afforded the full panoply of constitutional protections, and in all likelihood, his inability to confer with consular officials did not prejudice his case. Much less was at stake, and those on the Supreme Court critical of humanitarian law impediments to waging the war on terror could fashion anti-internationalist rules with little public fanfare or liberal resistance. Consequently, although Hamdan will likely go down in history as evidence of the Court's willingness to protect individual rights in the face of massive public fear and executive pressure, it also represents a failure to truly support the comprehensive [*337] international regime governing war-time detention, a regime in which the United States long ago vowed to participate. But all may not be lost. The Supreme Court might have another chance to rule on the status of the Geneva Conventions, and Medellin leaves some wiggle room on self-execution. If the Supreme Court is once again to be a beacon of judicial light, it must move beyond the xenophobic exceptionalism of the Bricker past and embrace the straightforward and fair principle that signed and ratified treaties are the law of the land.
Africa models detention

PILPG 8, the Public International Law & Policy Group (PILPG), is a global pro bono law firm that provides legal assistance to foreign governments and international organizations on the negotiation and implementation of peace agreements, the drafting and implementation of post-conflict constitutions, and the creation and operation of war crimes tribunals. PILPG also assists states with the training of judges and the drafting of legislation, “brief of the public international law & policy group as amicus curiae in support of petitioners”,
The precedent of this Court has a significant impact on rule of law in foreign states. Foreign governments, in particular foreign judiciaries, notice and follow the example set by the U.S. in upholding the rule of law. As foreign governments and judiciaries grapple with new and challenging issues associated with upholding the rule of law during times of conflict, U.S. leadership on the primacy of law during the war on terror is particularly important.

Recent decisions of this Court have reaffirmed the primacy of rule of law in the U.S. during the war on terror. As relates to the present case, a number of this Court’s decisions, most notably Boumediene v. Bush, 128 S.Ct. 2229 (2008), have established clear precedent that Guantanamo detainees have a right to petition for habeas corpus relief. Despite a clear holding from this Court in Boumediene, the Court of Appeals sought in Kiyemba v. Obama to narrow Boumediene to such a degree as to render this Court’s ruling hollow. 555 F.3d 1022 (D.C. Cir. 2009). The present case is thus a test of both the substance of the right granted in Boumediene and the role of this Court in ensuring faithful implementation of its prior decisions.

Although this Court’s rulings only have the force of law in the U.S., foreign governments will take note of the decision in the present case and use the precedent set by this Court to guide their actions in times of conflict. PILPG has advised over two dozen foreign states on peace negotiations and post-conflict constitution drafting, as well as all of the international war crimes tribunals. Through providing pro bono legal assistance to foreign governments and judiciaries, PILPG has observed the important role this Court and U.S. precedent serve in promoting rule of law in foreign states.

In Uganda, for example, the precedent established by this Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and Boumediene, influenced judges and legislators to incorporate the principles of judicial review and enforceability in their domestic war crimes bill. In Nepal, this Court has served as a model for the nascent judiciary. In Somaliland, the government relied heavily on U.S. terrorism legislation when drafting terrorism legislation for the region. And in the South Sudan peace process, the Sudan People’s Liberation Movement/Army (SPLM/A), the leading political party in the Government of Southern Sudan, relied on U.S. precedent to argue for the primacy of law and the importance of enforceability of previous adjudicative decisions in the Abyei Arbitration, one of the most important and contentious issues in the ongoing implementation of the peace agreement.

Foreign judges also follow the work of this Court closely. In a number of the judicial training programs PILPG has conducted, foreign judges have asked PILPG detailed questions about the role of this Court in upholding rule of law during the war on terror.

A review of foreign precedent confirms how closely foreign judges follow this Court. In numerous foreign states, and in the international war crimes tribunals, judges regularly cite the precedent of this Court to establish their own legitimacy, to shore up judicial authority against overreaching by powerful executives, and to develop a strong rule of law within their own legal systems.

Given the significant influence of this Court on foreign governments and judiciaries, a decision in Kiyemba implementing Boumediene will reaffirm this Court’s leadership in upholding the rule of law and promote respect for rule of law in foreign states during times of conflict.
Judicial independence key to sustainable democracy in Africa

Abuya, 10

(Law Prof-University of Nairobi, “Can African States Conduct Free and Fair Presidential Elections?” 8 Nw. U. J. Int'l Hum. Rts. 122, Spring)

An independent judiciary is an essential ingredient in free and fair elections. Julius Nyerere, a former president of Tanzania, argued that unless judges perform their work "properly, none of the objectives of [a] democratic society" can be met. n234 Accordingly, any initiative that seeks to reform the electoral process in Africa must also focus on the judicial system, due to the central role n235 that courts play in the resolution of electoral disputes in particular and the promotion and protection of democracy in general. Any person who is dissatisfied with the result of a presidential election can challenge it in domestic courts. Special courts are established in most African countries to handle such claims. n236 This section first discusses the process of challenging the results of a presidential election. It then evaluates some of the factors that cast doubt on the ability of courts to handle electoral disputes in accordance with due process considerations. A. Process Multiple procedures dictate the process of challenging the election of a president. Once the EMB declares the results of the vote, any unsatisfied person can challenge this outcome in court within a specified period of time. n237 Essentially, election petitions involve determining the "validity" n238 of a poll. The burden of proof is on the person who lodges the application to demonstrate that there was an irregularity in the electoral process. n239 The burden a petitioner must meet is a balance of probability, not beyond a reasonable doubt. n240 Those election petitions that fail to meet this burden are dismissed with costs. n241 Any aggrieved person can appeal the decision of the electoral court to an appellate court. n242 Only questions of law can be raised on appeal in Zimbabwe. n243 In Kenya, by contrast, because the law is silent on the scope of issues that an appellant can advance, administrative law principles apply. n244 Therefore, an aggrieved party could appeal the [*151] decision of an electoral court on grounds that the decision maker erred either in law or in fact. Where it allows the appeal, the appellate court refers the petition back to the electoral court if it made an error of law. Under such circumstances the electoral court must re-adjudicate the challenge based on the guidance the appellate court provided. For those cases where an appellate court finds that the electoral court made an error of fact, it refers the matter to the EMB directly, with an order, for instance, to recount votes. n245 The mandate of an electoral court is limited to determining whether the law was complied with. Therefore, if the court determines that a person was unduly elected, judges can only order the EMB to re-tally votes. Judges cannot declare that a particular presidential candidate won the election. n246 This authority rests solely with the EMB. B. Challenges Although the process appears straightforward in theory, several problems have arisen in practice. This subsection evaluates issues surrounding the independence and impartiality of courts and their ability to deliver justice promptly in election petitions. 1. Independence and Impartiality As guardians of their countries' constitutions n247 and the rights of individuals, judges must uphold the law at all times. This rule stems from the principle of separation of powers. Under this doctrine, the three arms of government--legislative, executive, and judicial--are required to be autonomous in their work. This requires each arm to guard itself from undue influence by the others. n248 The separation of powers is crucial in any constitutional state. n249 Judicial independence is particularly important, as without it, it would be difficult for an individual to ensure the protection of his or her human rights from infringement by the state. n250 Indeed, judicial independence is the "lifeblood of constitutionalism." n251 [*152] P 63 Furthermore, the independence of the judiciary from the other arms of government plays a central role in preserving and promoting the integrity of courts. n252 Independence also ensures that disputes are adjudicated based on their factual and legal merits, not on political considerations. In other words, judges should be free to act on their "own convictions, without any apprehension of personal consequences" to themselves. n253 Charles Montesquieu claims that in comparison to the power of the other arms of government, the power of the judiciary is "next to nothing." n254 However, this claim underestimates the pivotal role that judges play in the protection and promotion of voting rights. In particular, they are charged with the responsibility of adjudicating the "validity" n255 of a presidential election. An objective decision maker must ensure not only that justice is done, but also that it is seen to be done. He or she must grant effective remedy to a person whose rights and freedoms have been violated. n256 Moreover, confidence in the legal process is critical if such a person is to seek redress in the judicial system. People, especially those who are aggrieved, must have a sense that electoral courts will act independently and determine petitions based on well-established domestic and international legal principles. As the Australian High Court once stated, "the appearance of independence preserves public confidence in the judicial branch" n257 as well as in the law. In other words, public perception of bias by the judiciary should be minimized, if not eliminated altogether. The parties to a petition and members of the public should be confident that justice prevailed. The opposition parties in Kenya and Zimbabwe employed two distinct approaches in the wake of the flawed presidential election. Whereas the opposition party in Kenya refused to seek relief in court, its counterpart in Zimbabwe chose to pursue a judicial remedy. An evaluation of these approaches ultimately reinforces the argument that an independent judiciary is an essential tool for democracy. a) Writing Off the Judiciary: The "We Will Not Go to Court" Route As one would have expected, the main opposition party in Kenya, the Orange Democratic Movement ("ODM"), challenged the outcome of the 2007 presidential election. n258 Although one also would have expected the ODM to seek relief within the local legal framework, n259 the party refused to ventilate its grievance in "Kibaki's courts," thus expressing a total lack of confidence in Kenya's judiciary to resolve any challenge to [*153] the election results independently and impartially. The ODM viewed the courts as an instrument of the state that could not objectively adjudicate any petition that involved the sitting president. n260 Thus, the ODM believed that the solution to the flawed presidential poll lay in engaging the government through peaceful protests rather than through litigation. Their supporters took their dissatisfaction with the election results to the streets. In response, the government declared that it would deal decisively with any unauthorized or unlawful demonstration. It also argued that any aggrieved person should seek relief in court: "Elections are over and our Constitution does say that once the Electoral Commission has declared the results those are the results that we accept. If we have any disputes, the normal way of resolving them is ... by petitioning the High Court." n261 Interestingly, the Vice President of Kenya, Kalonzo Musyoka, who was a contender for the presidency in the 2007 election, echoed this viewpoint: "I am a lawyer. I can even take instructions. And I can argue for [the ODM]." n262 Some commentators expressed similar sentiments. Peter Kagwanja, President of the Africa Policy Institute, claimed that the domestic legal framework was the proper forum for resolving electoral disputes. n263 Kagwanja asserted that "giant strides" had been made since Kenya's independence in 1963 to set up "a functioning modern" judicial system. n264 Thus, people must respect court decisions, "however sleazy" they may be. n265 To support this assertion, Kagwanja cited the U.S. Supreme Court decision in Bush v. Gore, n266 where the central issue was the tallying of votes in the state of Florida. Bush has been the subject of wide discussion, n267 and courts in Kenya could have drawn from the rich jurisprudence that decision has generated. However, the assertion by Kagwanja is narrow in the sense that he ignores the vital role that confidence in the judiciary and court system plays in the litigation process. Indeed, courts worldwide have underscored the value of public confidence on the judiciary. In their dissent in Bush, Justices Breyer and Stevens describe belief in the judiciary as the foundation of the rule of law. n268 Canadian n269 and Australian n270 courts have also acknowledged that public perception is a core component of the justice system. In the words of Justice Katju of the Indian Supreme Court: [*154] It is of upmost importance for the public to have confidence in the judiciary. The role of the judiciary is to resolve disputes amicably. Without it, people may use violence to resolve differences. To avoid this, the judiciary must be independent. This is an inherent trait. If a judge is independent and knows the law, the losing party is likely to be pacified. He or she will be content, notwithstanding the fact that he or she has lost the action. n271 Data from Africa n272 and elsewhere n273 demonstrate the importance of public trust in the judiciary. People engage the judiciary because they have faith in the court system, n274 and they believe their disputes will be resolved based on legal principles. In addition, they trust that judges will be independent and not favor any party. n275 Absent this trust, it is doubtful that presidential candidates would ever seek relief in domestic courts. Kenya's judiciary has undergone a number of developments, including a transformation from an all-white bench at the time of independence to a bench comprised of native-born judges today. However, courts in Kenya and Zimbabwe do not have a reputation of fairness and independence. Survey data suggest that many citizens do not trust that courts and judges in Africa are autonomous in their work. In a survey conducted in 2006 and 2007 among thirty-two African countries, including Kenya and Zimbabwe, the Gallup Organization found that just over half of those polled (fifty-three percent) expressed confidence in the judiciary in their country. n276 Moreover, a number of studies have established that courts in Kenya and Zimbabwe cannot discharge their mandates impartially and independently. For instance, in its 2008 report, the Fund for Peace, a nonprofit research and education organization, described the judiciary in Kenya and Zimbabwe as "weak" n277 and "poor," n278 respectively. The 2008 report of the Waki [*155] Commission observed that Kenya's judiciary had "acquired the notoriety of losing the confidence and trust of [its clientele] because of the perception that it is not independent." n279 Legal practitioners argue that public confidence in the Kenyan judiciary has "virtually collapsed." n280 Simply put, the judiciary in Kenya and Zimbabwe is facing a crisis of confidence.
African rule of law solves multiple zoonotic diseases

Aluwong, lecturer in department of veterinary public health and preventive medicine at Ahmadu Bello University, 2010

(“Emerging diseases and implications for Millennium Development Goals in Africa by 2015 – an overview,” Veterinaria Italiana, 46 (2),

Emerging diseases can occur anywhere in the world and the consequences can be severe. Based on experience to date, it is difficult to predict the origin or the nature of future emerging diseases. Recently, new emerging diseases have in some instances demonstrated that they originate primarily where there are high concentrations of different animal species, often in close contact with people (2). As human lifestyles change due to advancing technologies, increasing populations and changing social behaviour, new diseases emerge, while those that have been controlled in the past sometimes tend to re-emerge. Emerging diseases can be defined as infections that are new occurrences in a susceptible population or are rapidly increasing in incidence or geographic range (16). About 75% of the emerging diseases that have affected humans in the past 10 years are caused by pathogens originating from animals and/or their products (29). Approximately 60% of these diseases are zoonoses, including recent examples, such as H1N1 (commonly referred to as ‘swine flu’), avian influenza, severe acute respiratory syndrome (SARS), Ebola haemorrhagic fever and probably human immunodeficiency virus/acquired immune deficiency syndrome (HIV/AIDS). Some of the most important factors that have contributed to an increase in emerging diseases are as follows:

▪ expansion of the human population

▪ climate change

▪ globalisation of trade

▪ increasing movement of animal species, civil unrest/wars, microbial evolution and ecological disruption (16).

These and other current issues suggest that emerging diseases may not only continue to occur, but have the potential of increasing the rate of their emergence. These observations call for closer integration of veterinary, medical and environmental communities, along with relentless education of the general public and policy-makers on the African continent.

Complexity of factors underlying infectious disease emergence

Microbial evolution

The emergence of some disease is due to the natural evolution of micro-organisms. For example, a new serotype of Vibrio cholerae, designated 0139, appears to be nearly identical to the strain that most commonly causes cholera epidemics, Vibrio cholerae 01, except that it has gained the ability to produce a capsule (8). The consequence of the new serotype is that even people who have immunity against the earlier strain are susceptible to the new one. Resistance to the effects of antimicrobial drugs is contributing to the re-emergence of many diseases, including malaria.

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The principal Millennium Development Goal that interfaces with emerging diseases is Millennium Development Goal No. 6, which is combating HIV/AIDS, malaria, and other diseases. These other diseases mentioned in the sixth goal of the Millennium Development Goals include emerging diseases. Ensuring environmental sustainability is another goal of the Millennium Development Goals that also interfaced with emerging diseases. This includes livestock and environmental issues, such as land, water, air, biodiversity and ecosystems. Therefore, the mitigation of emerging disease outbreaks in Africa could largely contribute to achieving the Millennium Development Goals in Africa by 2015. For, as the saying goes, 'a healthy population is a productive population'. When there is complete eradication of microbial infectious agents in Africa, other Millennium Development Goals such as the eradication of extreme poverty and hunger, the reduction of child mortality, achieving universal primary education etc., will be reached. However, good governance and rule of law on the continent of Africa must be a pre-requisite for the attainment of the Millenium Development Goals by 2015.

New and strategic areas for partnerships within the global ‘One Health’ movement should be scientifically explored in Africa. The lessons of the recent past have taught us to expect the reoccurrence of emerging infections at any time and/or any place. Therefore, there is an urgent need to strengthen research, investigation and disease control partnerships among animal health and public health experts.

Emerging infectious diseases do not have boundaries, that is, they occur and can spread to other continents of the world. It is therefore pertinent to adopt a global collaborative agenda that focuses on the surveillance, prevention and control of emerging and re-emerging infectious diseases of animal origin. This should include the following components: the areas of wildlife biology, ecology, virology, ▪ integrated research agenda food safety, food and animal production, ▪ interdisciplinary zoonotic disease research centres ▪ infrastructural development; work force

development ▪ improved international coordination/cooper- ation and focus oriented.

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The responses of OIE member countries to a questionnaire on emerging zoonoses overwhelmingly acknowledged the impact of emerging zoonoses and their likely continued resurgence (18). A large number of member countries reported that they had experienced incidents of emerging and re-emerging diseases, along with the emergence of antimicrobial-resistant pathogens, and noted the importance of strengthening and improving surveillance, research and training to ensure or to build the capacity to address these persistent threats.

The mitigation of emerging diseases on the continent of Africa will help to attain the Millennium Development Goals but the entrenchment of good democracy and rule of law must be a ’sine qua non’ of the various governments of African countries. Another key point is the need for stronger partnerships with national and international animal and public health organisations, academic institutions, private practitioners in animal and public health and non-governmental organisations to meet the ensuing challenges. The OIE and the FAO must continue to be involved in their response to the needs of member countries and the changing demands and opportunities associated with emerging infections. Of paramount importance to this transformation will be the formation and strengthening of partnerships, mobilisation of resources and the development of a global intersectoral approach in tackling zoonotic threats.
New zoonotic diseases cause extinction – different from past diseases

Quammen, award-winning science writer, long-time columnist for Outside magazine, writer for National Geographic, Harper's, Rolling Stone, the New York Times Book Review and others, 9/29/2012

(David, “Could the next big animal-to-human disease wipe us out?,” The Guardian, pg. 29, Lexis)

Infectious disease is all around us. It's one of the basic processes that ecologists study, along with predation and competition. Predators are big beasts that eat their prey from outside. Pathogens (disease-causing agents, such as viruses) are small beasts that eat their prey from within. Although infectious disease can seem grisly and dreadful, under ordinary conditions, it's every bit as natural as what lions do to wildebeests and zebras. But conditions aren't always ordinary.

Just as predators have their accustomed prey, so do pathogens. And just as a lion might occasionally depart from its normal behaviour - to kill a cow instead of a wildebeest, or a human instead of a zebra - so a pathogen can shift to a new target. Aberrations occur. When a pathogen leaps from an animal into a person, and succeeds in establishing itself as an infectious presence, sometimes causing illness or death, the result is a zoonosis.

It's a mildly technical term, zoonosis, unfamiliar to most people, but it helps clarify the biological complexities behind the ominous headlines about swine flu, bird flu, Sars, emerging diseases in general, and the threat of a global pandemic. It's a word of the future, destined for heavy use in the 21st century.

Ebola and Marburg are zoonoses. So is bubonic plague. So was the so-called Spanish influenza of 1918-1919, which had its source in a wild aquatic bird and emerged to kill as many as 50 million people. All of the human influenzas are zoonoses. As are monkeypox, bovine tuberculosis, Lyme disease, West Nile fever, rabies and a strange new affliction called Nipah encephalitis, which has killed pigs and pig farmers in Malaysia. Each of these zoonoses reflects the action of a pathogen that can "spillover", crossing into people from other animals.

Aids is a disease of zoonotic origin caused by a virus that, having reached humans through a few accidental events in western and central Africa, now passes human-to-human. This form of interspecies leap is not rare; about 60% of all human infectious diseases currently known either cross routinely or have recently crossed between other animals and us. Some of those - notably rabies - are familiar, widespread and still horrendously lethal, killing humans by the thousands despite centuries of efforts at coping with their effects. Others are new and inexplicably sporadic, claiming a few victims or a few hundred, and then disappearing for years.

Zoonotic pathogens can hide. The least conspicuous strategy is to lurk within what's called a reservoir host: a living organism that carries the pathogen while suffering little or no illness. When a disease seems to disappear between outbreaks, it's often still lingering nearby, within some reservoir host. A rodent? A bird? A butterfly? A bat? To reside undetected is probably easiest wherever biological diversity is high and the ecosystem is relatively undisturbed. The converse is also true: ecological disturbance causes diseases to emerge. Shake a tree and things fall out.

Michelle Barnes is an energetic, late 40s-ish woman, an avid rock climber and cyclist. Her auburn hair, she told me cheerily, came from a bottle. It approximates the original colour, but the original is gone. In 2008, her hair started falling out; the rest went grey "pretty much overnight". This was among the lesser effects of a mystery illness that had nearly killed her during January that year, just after she'd returned from Uganda.

Her story paralleled the one Jaap Taal had told me about Astrid, with several key differences - the main one being that Michelle Barnes was still alive. Michelle and her husband, Rick Taylor, had wanted to see mountain gorillas, too. Their guide had taken them through Maramagambo Forest and into Python Cave. They, too, had to clamber across those slippery boulders. As a rock climber, Barnes said, she tends to be very conscious of where she places her hands. No, she didn't touch any guano. No, she was not bumped by a bat. By late afternoon they were back, watching the sunset. It was Christmas evening 2007.

They arrived home on New Year's Day. On 4 January, Barnes woke up feeling as if someone had driven a needle into her skull. She was achy all over, feverish. "And then, as the day went on, I started developing a rash across my stomach." The rash spread. "Over the next 48 hours, I just went down really fast."

By the time Barnes turned up at a hospital in suburban Denver, she was dehydrated; her white blood count was imperceptible; her kidneys and liver had begun shutting down. An infectious disease specialist, Dr Norman K Fujita, arranged for her to be tested for a range of infections that might be contracted in Africa. All came back negative, including the test for Marburg.

Gradually her body regained strength and her organs began to recover. After 12 days, she left hospital, still weak and anaemic, still undiagnosed. In March she saw Fujita on a follow-up visit and he had her serum tested again for Marburg. Again, negative. Three more months passed, and Barnes, now grey-haired, lacking her old energy, suffering abdominal pain, unable to focus, got an email from a journalist she and Taylor had met on the Uganda trip, who had just seen a news article. In the Netherlands, a woman had died of Marburg after a Ugandan holiday during which she had visited a cave full of bats.

Barnes spent the next 24 hours Googling every article on the case she could find. Early the following Monday morning, she was back at Dr Fujita's door. He agreed to test her a third time for Marburg. This time a lab technician crosschecked the third sample, and then the first sample.

The new results went to Fujita, who called Barnes: "You're now an honorary infectious disease doctor. You've self-diagnosed, and the Marburg test came back positive."

The Marburg virus had reappeared in Uganda in 2007. It was a small outbreak, affecting four miners, one of whom died, working at a site called Kitaka Cave. But Joosten's death, and Barnes's diagnosis, implied a change in the potential scope of the situation. That local Ugandans were dying of Marburg was a severe concern - sufficient to bring a response team of scientists in haste. But if tourists, too, were involved, tripping in and out of some python-infested Marburg repository, unprotected, and then boarding their return flights to other continents, the place was not just a peril for Ugandan miners and their families. It was also an international threat.

The first team of scientists had collected about 800 bats from Kitaka Cave for dissecting and sampling, and marked and released more than 1,000, using beaded collars coded with a number. That team, including scientist Brian Amman, had found live Marburg virus in five bats.

Entering Python Cave after Joosten's death, another team of scientists, again including Amman, came across one of the beaded collars they had placed on captured bats three months earlier and 30 miles away.

"It confirmed my suspicions that these bats are moving," Amman said - and moving not only through the forest but from one roosting site to another. Travel of individual bats between far-flung roosts implied circumstances whereby Marburg virus might ultimately be transmitted all across Africa, from one bat encampment to another. It voided the comforting assumption that this virus is strictly localised. And it highlighted the complementary question: why don't outbreaks of Marburg virus disease happen more often? Marburg is only one instance to which that question applies. Why not more Ebola? Why not more Sars?

In the case of Sars, the scenario could have been very much worse. Apart from the 2003 outbreak and the aftershock cases in early 2004, it hasn't recurred. . . so far. Eight thousand cases are relatively few for such an explosive infection; 774 people died, not 7 million. Several factors contributed to limiting the scope and impact of the outbreak, of which humanity's good luck was only one. Another was the speed and excellence of the laboratory diagnostics - finding the virus and identifying it. Still another was the brisk efficiency with which cases were isolated, contacts were traced and quarantine measures were instituted, first in southern China, then in Hong Kong, Singapore, Hanoi and Toronto. If the virus had arrived in a different sort of big city - more loosely governed, full of poor people, lacking first-rate medical institutions - it might have burned through a much larger segment of humanity.

One further factor, possibly the most crucial, was inherent in the way Sars affects the human body: symptoms tend to appear in a person before, rather than after, that person becomes highly infectious. That allowed many Sars cases to be recognised, hospitalised and placed in isolation before they hit their peak of infectivity. With influenza and many other diseases, the order is reversed. That probably helped account for the scale of worldwide misery and death during the 1918-1919 influenza. And that infamous global pandemic occurred in the era before globalisation. Everything nowadays moves around the planet faster, including viruses. When the Next Big One comes, it will likely conform to the same perverse pattern as the 1918 influenza: high infectivity preceding notable symptoms. That will help it move through cities and airports like an angel of death.

The Next Big One is a subject that disease scientists around the world often address. The most recent big one is Aids, of which the eventual total bigness cannot even be predicted - about 30 million deaths, 34 million living people infected, and with no end in sight. Fortunately, not every virus goes airborne from one host to another. If HIV-1 could, you and I might already be dead. If the rabies virus could, it would be the most horrific pathogen on the planet. The influenzas are well adapted for airborne transmission, which is why a new strain can circle the world within days. The Sars virus travels this route, too, or anyway by the respiratory droplets of sneezes and coughs - hanging in the air of a hotel corridor, moving through the cabin of an aeroplane - and that capacity, combined with its case fatality rate of almost 10%, is what made it so scary in 2003 to the people who understood it best.

Human-to-human transmission is the crux. That capacity is what separates a bizarre, awful, localised, intermittent and mysterious disease (such as Ebola) from a global pandemic. Have you noticed the persistent, low-level buzz about avian influenza, the strain known as H5N1, among disease experts over the past 15 years? That's because avian flu worries them deeply, though it hasn't caused many human fatalities. Swine flu comes and goes periodically in the human population (as it came and went during 2009), sometimes causing a bad pandemic and sometimes (as in 2009) not so bad as expected; but avian flu resides in a different category of menacing possibility. It worries the flu scientists because they know that H5N1 influenza is extremely virulent in people, with a high lethality. As yet, there have been a relatively low number of cases, and it is poorly transmissible, so far, from human to human. It'll kill you if you catch it, very likely, but you're unlikely to catch it except by butchering an infected chicken. But if H5N1 mutates or reassembles itself in just the right way, if it adapts for human-to-human transmission, it could become the biggest and fastest killer disease since 1918.

It got to Egypt in 2006 and has been especially problematic for that country. As of August 2011, there were 151 confirmed cases, of which 52 were fatal. That represents more than a quarter of all the world's known human cases of bird flu since H5N1 emerged in 1997. But here's a critical fact: those unfortunate Egyptian patients all seem to have acquired the virus directly from birds. This indicates that the virus hasn't yet found an efficient way to pass from one person to another.

Two aspects of the situation are dangerous, according to biologist Robert Webster. The first is that Egypt, given its recent political upheavals, may be unable to staunch an outbreak of transmissible avian flu, if one occurs. His second concern is shared by influenza researchers and public health officials around the globe: with all that mutating, with all that contact between people and their infected birds, the virus could hit upon a genetic configuration making it highly transmissible among people.

"As long as H5N1 is out there in the world," Webster told me, "there is the possibility of disaster. . . There is the theoretical possibility that it can acquire the ability to transmit human-to-human." He paused. "And then God help us."

We're unique in the history of mammals. No other primate has ever weighed upon the planet to anything like the degree we do. In ecological terms, we are almost paradoxical: large-bodied and long-lived but grotesquely abundant. We are an outbreak.

And here's the thing about outbreaks: they end. In some cases they end after many years, in others they end rather soon. In some cases they end gradually, in others they end with a crash. In certain cases, they end and recur and end again. Populations of tent caterpillars, for example, seem to rise steeply and fall sharply on a cycle of anywhere from five to 11 years. The crash endings are dramatic, and for a long while they seemed mysterious. What could account for such sudden and recurrent collapses? One possible factor is infectious disease, and viruses in particular.

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