2010 MINUTES
37th Annual Business Meeting
Rhine River Cruise ~ Amsterdam ~ Basel ~ Lucerne Extension
FELLOWS ATTENDING:
President Kevin Midlam (Cynthia)
Hon. Dennis Choate (Colleen)
Hon. Warren Conklin (Lora)
Hon. John Einhorn (Jaci)
Hon. Richard Frazee (Elaine)
Hon. William Hollingsworth (Jo)
Hon. William B. Keene (Pat)
Hon. Malcolm Mackey
Hon. Philip Mautino (Barbara)
Hon. Tom Murphy (Pat)
Hon. William Rylaarsdam (Jan)
Hon. Thomas Schulte & Hon. Mary Schulte
Hon. Lois Smaltz (Don, Esq.)
Hon. Robert Soares (Punky)
Hon. Ron Owen (Ret.)
Hon. Cheryl Leininger [Owen]
Hon. Thomas Thrasher (Sandra)
Diane Bowen, Chief Executive Officer
GUESTS:
Hon. Robert Coates (Ana Fernandez)
Mr. Paul Anderson (Sandra Hall)
Mrs. Jean Godfrey
THURSDAY: Academy members arrived and transferred to the Hotel Estherea, Singel Canal in Amsterdam and enjoyed a free afternoon. Amsterdam is the capital of the Kingdom of the Netherlands, made up of 90 islands linked by 1200 bridges spanning canals on either side of the River Amstel. A Welcome Dinner was held in the evening at the Five Flies Restaurant d’Vijff Vlieghen.
The dinner was attended by Karen K. Johnson, Deputy Legal Counselor, with the United States Embassy, a State Department lawyer in foreign service. There are 180 lawyers in the Office of the Legal Counselor, who handle everything from real estate transactions to diplomatic law cases. Ms. Johnson considers The Hague a premier place to practice international law.
The Office also lends assistance to the tribunals and organizations within The Hague. These include the Iran-United States Claims Tribunal, established under the Algiers Accords of January, 1981. This Tribunal was the result of negotiations between Iran and the U.S. to resolve the hostage crisis. In exchange for the release of hostages by Iran, the U.S. agreed to unfreeze Iranian assets. The Tribunal resolved claims by U.S. nationals for compensation, and claims by the governments against each other.
Other tribunals at The Hague have included the International Criminal Tribunal for the Former Yugoslavia. This Tribunal indicted 161 persons; proceedings have been concluded against 124 persons, are ongoing for 37, and 2 of the accused are still at large. In the Special Court for Sierra Leone, Liberian President Charles Taylor is in the defense phase. The Special Tribunal for Lebanon is dealing with those responsible for the attack in 2005 in Beirut that killed the former Lebanese Prime Minister Rafiq Hariri and 22 others.
The Office also interacts with the Permanent Court of Arbitration and the Hague Conference on Private International Law, and Ms. Johnson discussed the role of the Legal Counselor’s Office in assisting those organizations.
FRIDAY: In the morning the group visited the International Criminal Court at the Hague and was welcomed by Eleni Chaitdou and Regina Weiss, representing the Legal Office of the ICC. The ICC is the first permanent, treaty based, international criminal court established to “help end impunity for the perpetrators of the most serious crimes of concern to the international community.” It is an independent international organization and not part of the United Nations. Its seat at The Hague is funded by the States Parties, and it receives voluntary contributions from governments, international organizations, individuals, corporations and other entities. The ICC tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes, when committed after July 1, 2002. The jurisdiction and functioning of the ICC are governed by the Rome Statue.1 The ICC is intended to complement, not to replace, national criminal justice systems. “It can prosecute cases only if national justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such proceedings genuinely.”2
The Office of the Prosecutor (OTP) of the ICC can begin an investigation or prosecution in three different ways: States parties to the Statute of the ICC can refer situations, the United Nations Security Council can request an investigation (Ch.7, UN Charter), or the prosecutor may initiate investigations on the basis of information received from reliable sources. In this case, the prosecutor must seek authorization from a Pre-Trial Chamber composed of three independent judges. The OTP determines if there is a reasonable basis to investigate. The OTP is an independent organ of the Court.
The Registry of the ICC provides judicial and administrative support to the Court, and to victims and witnesses. It assists them in the exercise of their rights, assists them during judicial proceedings and, if necessary, assists in their protection, including restitution, rehabilitation and compensation. The States Parties to the Rome Statue have established a Trust Fund for Victims in the event a convicted person does not have sufficient assets to make reparations.
The Academy members met with Judge Daniel David Ntanda Nsereko from Uganda. Judge Nsereko became a judge of the ICC in 2007 for a term of four years and two months to fill a judicial vacancy. He is assigned to the Appeals Division and elected from the African Group of States.
Judge Nsereko (b. 1941) has more than 20 years of comprehensive experience in criminal law. As an advocate since 1972, he has represented defendants in criminal and civil cases in Uganda. He was a trial observer to Swaziland in 1990 and to Ethiopia in 1996, writing comprehensive reports in the context of international human rights matters. He served as a consultant for the Crime Prevention and Criminal Justice Branch of the United Nations, and has been a Professor of Law at the University of Botswana since 1996. He holds a LL.B. from the University of East Africa in Tanzania, M.C. J. from Howard University and LL.M and J.S. D. from New York University.
There are 18 judges of the ICC in three divisions, Pre-Trial, Trial and Appeals. Judges are chosen from candidates throughout the world by the Assembly of States Parties, on the basis of their competence in criminal law and procedures of international law. The judges are responsible for “ensuring that the trials are fair and that justice is property administered.” The first judges of the Court were elected in 2003. To ensure continuity, one-third of the judges were selected to serve for three years, one-third for six years, and one-third for nine years. Thereafter, the term of office will be nine years with no re-election.
Judge Nsereko discussed cases that are presently being heard at the ICC, including cases involving war crimes and crimes against humanity. These cases are referred to as The Situation in Darfur, Sudan, the Situation in Uganda, and the Situation in Democratic Republic of the Congo. At this time, trials are ongoing, and no trials have been completed.
The Academy members attended a trial in the Matter of Germain Katanga and Mathieu Ngudjolo Chui, both in custody. Three judges composed the Chamber: Judge Bruno Cotte (France), Judge Fatoumata Dembele Diarra (Mali) and Judge Christine Van den Wyngaert (Belgium). The charges are: three crimes against humanity (murder, sexual slavery and rape), and seven war crimes (using children under the age of 15 to take part in hostilities, deliberately directing an attack on a civilian population, willful killing, destruction of property, pillaging, sexual slavery and rape). These crimes were committed from the summer of 1999 through 2003. The Democratic Republic of the Congo referred the situation to the ICC in 2004. Investigations followed and arrest warrants were issued in July 2007. In October 2007 Katanga surrendered, and in February 2008 Chui was arrested. In September 2008 the Pre-Trial Chamber confirmed the charges and trial commenced in November 2009.
Following the ICC visit, the Academy members went to the Peace Palace at The Hague. The Peace Palace is often called the seat of international law because it houses the International Court of Justice (the principal judicial body of the United Nations), the Permanent Court of Arbitration, the Hague Academy of International Law and an extensive Library. It is also a regular venue for special events in international policy and law. In 1903 Andrew Carnegie donated $1.5M U.S. for the construction and maintenance of the Palace. The Carnegie Foundation continues to own and maintain the Peace Palace, and it is filled with many art treasures that were gifts from countries around the world. An eternal peace flame was installed in 1999.
Academy members had lunch at the Refectorium Restaurant in the Peace Palace, and thereafter met with Garth Schofield, Legal Counsel at the Permanent Court of Arbitration (PCA). He has a J.D. from Yale, and a Master’s in international law and conflict resolution from the Fletcher School of Law and Diplomacy. The PCA was established in 1899 to facilitate arbitration and other forms of dispute resolution between states, and has “developed into a modern, multi-faceted arbitral institution to meet the rapidly evolving dispute resolution needs of the international community.” It provides dispute resolution to states, state entities, intergovernmental organizations and private parties. The PCA has two working languages, English and French, but proceedings may be conducted in any language agreed upon by the parties. Presently there are 140 state members out of 193 states in the world. The United States is not a member.
The PCA only identifies the parties and publishes awards or other information regarding proceedings where the parties have agreed to disclosure. Recently completed cases include an arbitration between Malaysia and Singapore concerning land reclamation, a matter involving the Eurotunnel between the UK and France, and an investment dispute between Telekom Malaysia Berhad and the Government of the Republic of Ghana. Presently before the Court are arbitrations concerning the Netherlands and the Czech and Slovak Federal Republics, Bangladesh and India, Bilcon of Delaware and the Government of Canada, and others. “The PCA’s role in a globalizing world is growing, with state-to-state arbitration and investor-state disputes, as well as cases in which the PCA acts as an appointing authority.”3
Mr. Schofield then escorted the Academy members on a tour of the Peace Palace, and then the group returned to Amsterdam and a free evening.
SATURDAY: Academy members left the hotel and enjoyed a sightseeing walk along the Singel Canal to the Rijksmuseum, for a guided tour. The afternoon was free and members enjoyed the sights of Amsterdam, including the Anne Frank House and the Van Gogh Museum.
In the evening Justice William Rylaarsdam and Jan joined the trip, and the group had dinner while cruising the Amsterdam canals.
SUNDAY: In the morning the Academy members left Amsterdam and visited Zaanse Schans, a typical Dutch village, before boarding the Avalon Felicity, which docked overnight in Amsterdam. There was a Welcome Cocktail Party before dinner and musical entertainment in the lounge following dinner.
MONDAY: At noon the Avalon Felicity departed Amsterdam for Cologne, passing through locks on the River Rhine. Members enjoyed a free afternoon aboard ship.
TUESDAY: In the morning the ship cruised the scenic Rhine.
Business Meeting
Aboard the Avalon Waterways Felicity
At 8:30 a.m. in the Ship’s Lounge, the annual business meeting was convened. President Kevin Midlam called the meeting to order. Judge Midlam introduced a guest, Judge Fred Bishop from Atlanta, Georgia whom the group had met while on the ship, and invited him to join the meeting.
Upon motion by Judge Frazee; second by Judge Warren Conklin, the minutes of the 2009 meeting in Edinburgh, London and Ireland from October 3, 2009 to October 17, 2009 were approved as written.
The Treasurer’s Report submitted by Judge Keene, reflected a beginning balance of $2,975.65 as of October 9, 2009. Income derived from dues, initiation fees and scholarship donations totaled $5,000.00; expenses were $4,920.80. The balance on hand as of October 19, 2010 is $3,054.85. Upon motion by Judge Soares, second by Judge Mackey, the Treasurer’s Report was approved.
It was noted that in 2009 the members voted to conduct as much business as possible, other than the collection of dues, through email. Diane Bowen, CAO, reported that she now has the email addresses of over three-quarters of the membership and is able to keep Academy members informed of current information. She can also disseminate the minutes and the trip brochure by email.
The yearly membership report was discussed. Two Fellows were delinquent in paying their 2010 dues. One new member was admitted, Judge Robert D. Monarch from Orange County Superior Court; there are no pending nominations; there were three resignations.
Judge Einhorn made the following nominations of Judges from the San Diego Superior Court: Joel Pressman, Joan Lewis, Ronald Prager and Laura Parsky. Judge Midlam nominated Justice Richard Huffman from the Fourth Appellate District, and Judge Fred Bishop from Atlanta, Georgia. The nominations were approved.
In accordance with the Bylaws, the Nominating Committee chaired by founding member Judge William B. Keene, comprised of all former Academy Presidents in attendance, put forth the following slate of officers for the 2011 year: Judge Malcolm Mackey, President; Judge Tully Seymour, President-Elect; and Judge Tom Murphy as Chancellor. [At a later time during the trip, Judge John Einhorn was elected Chancellor in place of Judge Murphy.] In the interest of facilitating the banking, Judge Keene will continue to serve as Secretary-Treasurer. There were no further nominations from the floor. The nominations were moved closed by Judge Soares, second by Judge Conklin; the nominations were unanimously approved by acclamation.
The following Honorary Members were proposed: Judge Daniel David Ntanda Nsereko from Uganda, presently a judge on the International Criminal Court at the Hague; and Judge Seiler of the Swiss Federal Supreme Court with whom the group will meet in Lucerne. So moved by Judge Choate, second by Judge Frazee.
Judge Mackey described the trip to Italy he is proposing for 2011, which will include a 3-night stay in Rome followed by an Azamara cruise leaving from Rome to Sicily, the Amalfi Coast, Malta and Tunisia. [As of this writing, the trip proposal has been sent to all IATJ members. Trip details (including dates) are located at www.iatjtravel.com. It is password protected for security reasons. The password has been (e)mailed to all members.] At 9:30 a.m. the meeting was adjourned.
Thereafter, the ship docked at Cologne, the capital of the Rhineland, and members were taken on a guided tour which included the Cathedral. The afternoon was spent exploring the town.
WEDNESDAY: The ship docked at Koblenz where a historical guided tour of the 5th century town was available. The ship sailed at noon through the Castles of the Rhine Valley with a running commentary by the cruise director, Dragan, of stories, legends, sagas and myths surrounding the largest concentration of castles in the world.
In the evening the ship arrived in Rüdesheim and the passengers visited the Gutenberg Museum and Siegfried’s Mechanical Musical Instrument Museum followed by a special wine tasting of the region. Some of the ladies visited the famous Käthe Wohlfahrt Christmas store in the town. In the evening some members attended a German Dinner Party featuring Schnapps vom Brett, local wine and a three course German dinner while being entertained by local German music and typical dancing. The area is known for its Riesling wines and Gemütlichkeit (cozy good cheer).
THURSDAY: The ship arrived in Mannheim and members were taken on a tour of Heidelberg and the Heidelberg Castle which towers above the city. The Castle is a famous ruin in Germany, built before AD 1214. It was home to Kings, the most famous being Friedrich V, who triggered the Thirty Years War after accepting the crown of Bohemia.
FRIDAY: The ship sailed overnight to Strasbourg, France, where passengers enjoyed a morning canal cruise through Strasbourg to the city centre followed by a sightseeing walk and free time before returning to the ship. In the afternoon, some Academy members took optional excursions to the Alsace region. Others toured the Maginot Line, the “supposedly impenetrable wall which was meant to protect France from German aggressions in WWII.” After dinner, Adolf Herr, a well known clock creator, entertained the passengers with a woodcarving demonstration.
SATURDAY: In the morning the ship docked at Breisach, Germany and passengers were taken on a scenic drive through the Black Forest region. They enjoyed a visit to Hornberger Uhrenspiele, the House of Black Forest, a German store specializing in Schätze des Schwarzwaldes (Treasures of the Black Forest), including Cuckoo Clocks and Christmas decorations. They also sampled some Black Forest Cherry Cake. In the afternoon some members took an optional tour to Colmar, France. The Academy members enjoyed a private Farewell Cocktail party in the Aft Lounge and then attended the ship’s Farewell Gala Dinner.
SUNDAY: In the morning the ship docked in Basel, Switzerland for disembarkation. The following Academy members left the trip: Judges Choate, Conklin, Frazee, Keene, Leininger/Owen, Mautino, Rylaarsdam, Smaltz, Thrasher, and Guests Hall/Anderson
Judges Midlam, Einhorn, Hollingsworth, Mackey, Murphy, Soares, Coates/Fernandez, Jean Godfrey and Diane Bowen were transferred by bus to Lucerne for three nights at the Palace Luzern on the Lake. In the evening a dinner was held at The Old Swiss House, which was built in 1859. Because of its wood partitioned exterior facade, it is one of the most photographed attractions of the area. It is located near the Lion Monument, a famous sculpture which commemorates Swiss Guards massacred in 1792 during the French Revolution. Mark Twain praised the sculpture of a mortally-wounded lion as “the most mournful and moving piece of stone in the world.”
The Academy members were joined by Xiaolu Zhang, a Professor at the University of Lucerne School of Law, who was instrumental in setting up the Swiss meetings for the Academy. She was born in China and moved to the United States in 1985. She obtained her J.D. from the University of Colorado School of Law. She and her husband moved to Lucerne in 2007. She is presently teaching Introduction to Anglo-American Legal Thinking Exercises, directed towards improvement of law students’ English writing and speaking abilities.
Switzerland came into being in 1848; until that time it was not a real state, but a loose alliance of autonomous cantons whose degree of cooperation with each other varied. In 1848 a constitution made it into a federal state, giving it a central government. The constitution was designed to balance as fairly as possible the interests of the state as a whole.4
MONDAY: In the morning the group was escorted by Ms. Zhang to the Lucerne School of Law and met with Vice-Dean and Chair of Public International Law, Sebastian Heselhaus, and members of the law faculty, Xiaolu Zhang (Transnational Legal Studies), and Nicole Fischer and Madeline Stämpfi (Swiss Legal Studies).
The University of Lucerne is the youngest university in Switzerland; it was founded in 2000 and currently has approximately 2,400 students, and a staff of 379 persons. It has three faculties, Theology, Humanities and Social Sciences, and the Law. Presently 53% of the students study law, 38% the Humanities and 9% Theology. The University participates in the bologna process which meets the European Higher Education Area by implementing the three-tiered curricula system. A personal atmosphere of motivated lecturers and a large range of courses are the strengths of the new University, and the ratio of professors to students is 1-50. The budget in 2009 was $41.5M US.
In addition, the Lucerne Faculty of Law is the most recently established Swiss law school, and in 2005 was ranked the top Swiss law school. It offers a broad, integrated program of studies in English, Swiss-German, Italian, and French. The agenda of the school aims for excellence, and the faculty members are energetic and focused on quality teaching. A significant number of distinguished visiting scholars come each year to teach. It also hosts a Lucerne Academy for Human Rights Implementation, which is a summer program that incorporates the actual work of defending human rights into the daily lawyering activities of general practice attorneys. Special focus is placed on advocacy skills such as case assessment, brief writing and oral argument. Xiaolu presently is involved with the summer program.
At the end of the visit IATJ President Kevin Midlam presented Dr. Heselhaus with a $1,000 donation from the Academy. It will be used to provide a scholarship to a student to attend the Academy for Human Rights Implementation this summer.
The Academy members stopped for lunch at the Restaurant Hofgarten. They then proceeded to a meeting at the Bundesgericht, the Federal Supreme Court of Switzerland, where they were met by Supreme Court Justice Hansjörg Seiler, who was elected to the Court in 2005, and sits in the Second Social Law Division. The Court has 38 judges and 30 part-time judges who work in the Court, assisted by staff members, including Law Clerks who are involved in drafting text for the Justices. Federal Supreme Court judges are elected by the United Federal Assembly for a term of six years, and may be re-elected. All judges are trained and highly experienced lawyers, and have generally previously served as Cantonal Judges, professors of law, lawyers or senior civil servants.
The Federal Supreme Court’s main role is to adjudicate appeals of rulings of the highest Cantonal Courts of appeals and of rulings by Swiss Federal Courts in domains governed by Federal Law such as civil, criminal, administrative and constitutional law. The Federal Supreme Court is Switzerland’s highest court of appeals. It’s jurisprudence ensures uniform application of federal law throughout Switzerland. Appeals are allowed if violations of Federal Law, International Law, Intercantonal Law or Cantonal Constitutional laws are alleged. The facts of the case can only be reviewed if they are obviously incorrect or infringe Federal Law.
The stages of the proceedings are usually the submission of a written appeal, the invitation to the respondent to present his position, and the ruling. If necessary, a second exchange of correspondence may be ordered before final judgment is rendered. In proprietary rights disputes, the Court verifies the application of Federal Law in amounts which exceed CHF 30,000; the minimum amount in dispute in Labour and Tenancy Law is CHF 15,000.
In Criminal matters the Federal Supreme Court adjudicates mainly appeals that are filed against the verdicts of the highest cantonal courts of appeals and the Federal Criminal Court. It examines the cantonal authority’s ruling to make sure it is not in violation of federal laws. It also will hear allegations claiming violation of citizen’s constitutional rights as they apply to the European Convention on Human Rights as well as the guarantee of fundamental rights.
The Court is composed of seven divisions with five or six judges in each. The tasks of the divisions differ according to the legal domains they cover: Public law deals with appeals concerning legal domains, ownership, planning, environmental protection, political rights, traffic, citizenship, due process and personal freedom. Civil law deals with appeals regarding the Swiss Code of Obligations, intellectual property rights, insurance, infringements, debt recovery and bankruptcy. Criminal Law is responsible for appeals concerning material criminal law, the execution of penalties and claims of constitutional rights violations. Social law deals with appeals in old-age and survivors’ insurance, supplementary benefits, loss of income allowance, health insurance and occupational pensions.
The Federal Supreme Court has the authority to rule that federal laws which contravene the Constitution are unconstitutional, however, it is obliged to enforce them. Consequently, constitutional jurisdiction is limited. In the context of the Law of Nations, international law prevails.5
The Court accepts about 7,000 cases per year and hears about 1,000 per year. Justice Seiler took the Academy members on a tour of the Court, including the ceremonial courtroom and the library. The balance of the afternoon was free.
TUESDAY: In the morning the group took an excursion to Mt. Stanserhorn in the Swiss Alps, traveling by bus, funicular and aerial cable car, to the top of the snow covered mountain and enjoyed lunch with panoramic views of the Alps. The balance of the afternoon was free and a Farewell Dinner was held at the Palace Luzurn in the La Terrasse Dining Room.
WEDNESDAY: The group left for home.
Written By Diane Z. Bowen,
Judge Kevin W. Midlam, President
1. Adopted by 120 States July 17, 1998, Entered into force on July 1, 2002 after ratification by 60 countries.
2. www.icc.cpi.int, ICC at a Glance.
3. www.pca-cpa.org
4 www.swisworld.org
5 An outline of Switzerland's Judiciary Structure, Bundesgericht Tribunal Federal.
