Tuesday, February 20

My Law Courses

I am taking two courses here at Universiteit Utrecht, each is worth 7.5 credits so it is the equivalent of a normal full load for the University of Washington. The learning program is different here: for these 15 credits I am in class only 4.5 hours a week. But there is a lot of reading and the classtime is remarkably focused and well spent.

The Guilt of Nations

In this class, we are looking at historical injustices, predominately violations of human rights on a grand scale, and how to deal with them at the national and international level. I love this class. In the first two weeks, we have touched on the Nuremberg trials and the South African Truth and Reconciliations Commission (TRC). On the one hand, the approach is through criminal justice: prosecuting German military and government personnel for their personal (INDIVIDUAL) involvement in the murders of Jews and others during and leading up to WWII.

On the other hand, in South Africa, the pursuit was simply truth. The police and others who enforced Apartheid through incredible violence and force suffered no criminal sanctions. Instead, for the sake of the pursuit of truth and knowledge, these people were invited (forced? I'm not sure) to tell the nation and the world the details of what they had done, why and how. Also, the victims were given a forum in which to describe in detail the horrors they had suffered and/or witnessed.

The criticisms of the former are many: retroactively prosecuting individuals for crimes that were not technically illegal within the realm of international law; that is, murder was illegal in Germany, America, Austria, but not explicitly prohibited in this international jurisdiction in which the participants were prosecuted. Another criticism that I feel is more legitimate is the nature of the selectivity of these prosecutions. Not every German who took part in the regime was "brought to justice" at Nuremberg, indeed very few were indicted or prosecuted. This same criticism may be made about both the ICTY and ICTR.

The criticism of the TRC, in my mind, is that there is no punishment. A person could describe in terrible detail the lynchings, beatings, murders, rapes of dozens of civilians and then walk out the door completely free.

But the point of the course is that there are these various "remedies" that have been used to deal with atrocities of the past. The course is very relevant as conflict wages on in Iraq, Sudan, and many other places around the world and someday we will be looking at such events in hindsight. And we, or someone, will be faced with how to respond to this history, whether to pretend it didn't happen, whether to prosecute the offenders using traditional methods of criminal justice, whether to seek truth and knowledge and teach future generations about the events that transpired.

Constitutional Law of the European Union

Here I have a bit of a problem because the professor expects fairly thorough knowledge of the history and law of the EU, a subject about which I am clueless. So I am basically learning two courses in one here, the history of the EU and the more recent Constitutional history (and future). It is a fascinating course, despite the formidable challenges faced by this American girl.

Particularly, I can see the reluctance of the Europeans in my class to accept an EU legal system that is supreme over their own national systems. Indeed, through the treaties already entered into by the Europeans, they have an EU court which has expanded its own jurisdiction and power through the last few decades, yet the Europeans are somewhat in denial about this fact. It is not quite like the US Supreme Court, but it is approaching our system of exclusive or shared jurisdictions, between Federal and State, or EU and nation-state, and the superiority of EU law, including the ability of this EU court to, under certain, expanding situations, pass judgment on the law of a particular member-state, something the Europeans probably never foresaw.

The EU seems to have been formed primarily for market reasons (4 Fundamental Freedoms: Free Movement of Person, Goods, Capital, Services) but has included a high court (the European Court of Justice) charged with, among other things, enforcing these treaty rights including the fundamental freedoms. I will try to learn as much as I can in this course, but it will be hard.

One noteworthy thing, however, about the EU: I cannot express with serious enough words the importance and supreme qualities of treaties. Unlike America, the land of the free, where treaties can be erased with a single federal statute, and are generally not "self-executing" without express statutory legislation, here treaties are given the weight and force that an agreement between nations ought to have. I am so embarrassed by the American government's low-appreciation of such international agreements, and by our government's way to tossing treaties aside whenever convenient.

If America does not intend to abide by treaties we have no business entering into them in the first place because other nations afford treaties great respect and expect the same from America.

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