From Federal District Court

OFAC is the Office of Foreign Assets Control — the agency which fined me.

‘Sacks v. OFAC’ documents in the District Court

I found the last two items above most significant.  So I am reproducing them below.

Judge Robart’s ruling on international law and especially on the treaty on genocide (which the U.S. had partially ratified) … I found shocking (though I do not place the blame at Judge Robart’s doorstep.)  The U.S. Congress said that it is for the “Prevention and Punishment of the Crime of Genocide” (the full title of the Convention) and continued to say that no one has any “substantive or procedure right enforceable by law by any party in any proceeding.”  This can only mean one thing: The U.S. wants to appear to oppose genocide while prohibiting any legal prevention or punishment of the crime of genocide!

I can imagine the mafia would be very happy with such an arrangement about murder.

It was completely unexpected, for me at least, that Judge Robart’s invited me to address the court.  (Though I was aware that there were a lot of supporters crowding into the benches as observers).  I have taken the liberty of highlighting the most significant things that I said — and the most significant response that Judge Robart’s made in response.  Please have a look.

The issue of our courts and our media will likely be the topic of the February emailing.  As a preview, the Executive Director of Human Rights Watch Kenneth Roth wrote an article “The Charade of US Ratification Of” for the Chicago Journal of Int’l Law. It explained a lot to me.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

This is page 7 of the federal judge’s decision on international law and U.S. sanctions on Iraq.  (emphasis added)

The full ruling is at www.concernforiraq.org/ofac/JudgeRobartDecision22Oct04.pdf.

The legal case citations have been moved to footnotes to make the text more readable.

The court finds that the international law upon which Plaintiff relies is not binding on the United States. The United Nations Convention on the Rights of the Child is not self-executing, and the United States Senate has declined to ratify it.[1] The same is true of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.[2] Although the United States has ratified part of the Convention on the Prevention and Punishment of the Crime of Genocide, it also provided that the Convention creates no “substantive or procedural right enforceable by law by any party in any proceeding.”[3] Finally, the Universal Declaration of Human Rights is aspirational, not binding, and is not recognized as law in the United States.[4]

Customary international law also provides no defense for the Plaintiff. Plaintiff argues that even if the international law he cites has not been ratified or enacted in the United States, customary international law embodying the same principles is controlling. Even if the court accepts the Plaintiff’s interpretation of the relevant customary international law, it cannot overlook the executive and legislative acts that expressly address sanctions against Iraq. Customary international law is not binding where there is a controlling legislative or executive act addressing the same subject. [5]International law does not provide Plaintiff with a legally cognizable claim against the challenged regulations.


[1] Flores v. Southern Peru Copper Corp., 343 F.3d 140, 165 (2d Cir. 2003).

[2] Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984).

[3] 18 U.S.C. § 1092.

[4] Flores, 343 F.3d at 165.

[5] Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996).

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

THE COURT: The Court is not prepared to rule from the Bench. I’m going to do something that’s a little bit unusual.  Mr. Sacks, would you like to address the Court?

MR. SACKS: I would, Your Honor.

THE COURT: You need your lawyer’s consent, because I don’t want you to — anything that you say arguably the government can use in some future proceeding. But if you would  like to take a couple minutes and speak, we’d be welcome to hear you.

MR. SACKS: Thank you very much. Shall I stand up?

THE COURT: Wherever you’re most comfortable, sir.

MR. SACKS: Well, fine. Your Honor, there are two  things that have impressed me very much since I came in. The  first one is my deep respect for the proceedings of this Court, for your thoughtful questions, both to my attorney and Mr. Rabinovitz, and this part of our tradition, it’s part of our country, that we, in a Court of law, are committed to find the truth under pieces of evidence, under the laws of evidence, and I honor that very much.

The second thing that struck me is that I’m obviously not a  person versed in all the intricacies of the legal structures that are being argued here. But of all of the arguments, the one that most impressed me is a question, and it’s a question in my mind, is if we have honored, accepted in some form either the Geneva Convention, the convention against genocide and the customary international law that we, I trust, should respect, then what prompted me in my trips to go to Iraq was the knowledge from the New England Journal of Medicine from 10 years ago when I first discovered it that 46,900 children in Iraq had died within the first eight months.

Now, I’ve been struggling for many years to find something that I could do that would help to be a responsible citizen of this country to stop this process which is clearly killing thousands of children every month.

If it is in fact correct that the customary international law that applies in this case, the rights of the children, the Geneva  Convention, the Genocide Convention, cannot be brought in front of a domestic Court because the President has standing to overrule those customary international law, then that issue puts me, and I think all the other citizens of the country, in a quandary.

What can we do if we feel that some gross, terrible human rights violation is occurring under our government? And that to me is the central issue. I appreciate and honor the specific arguments on the details of the law and what it permits and does  not permit.

But you said when I came in that you might have thought that  I wasn’t happy to be here under these circumstances. Actually, the issue for me for 10 years has been to find some way to raise this issue either in the media or in a Court of law, to find a  way to honor — to recognize what we’ve done, because if we don’t recognize and know what we’ve done, my great fear is we’ll do it again.

And what’s happening in Iraq, to my mind, is very connected with these issues, and my fear is we have to find some way to prevent this from happening again.

I thank you.

THE COURT: Thank you, sir. Counsel, this was well presented. Mr. Sacks, you’re right in that the issues that are before the Court many times involve legal principles that seem very separated from the facts that are also before the Court.

We will be in recess. We will try and get our order out on  this as promptly as we can. Thank you very much.

_________________________________

3 Responses to From Federal District Court

  1. carol isaac says:

    Bert, Question….

    As I read this, “… find something that I could do that would help to be a responsible citizen of this country to stop this process which is clearly killing thousands of children every month….”, I am struck by how this might be said by a Catholic against abortion. Has anyone anti-abortion ever said this to you? I am pro-choice just in case you are wondering.

    Carol Isaac

  2. carol isaac says:

    Bert,
    Bert, Question….

    As I read this, – “… find something that I could do that would help to be a responsible citizen of this country to stop this process which is clearly killing thousands of children every month….”, – I am struck by how this might be said by a Catholic against abortion. Has anyone anti-abortion ever said this to you? I am pro-choice just in case you are wondering.

    Carol Isaac

  3. Bert Sacks says:

    In answer to your question, Carol, I recall once being on the Michael Medved show and being asked that question. I answered that I appreciated the intent, expressed in a civil manner, and that my view was pretty much expressed by Everett Koop, our former U.S. Surgeon General. (He once told me, when I met him to ask if he’d speak out against the Iraqi sanctions, that he knew of them and was opposed to them, but was engaged in his ‘tobacco wars’ in DC and couldn’t afford to make more political enemies. He added that he didn’t know if this was moral cowardice. I greatly appreciated his honesty and candor.)

Leave a Reply

Your email address will not be published. Required fields are marked *