The time has come for the captive Black nation in the U.S. to analyze its struggle with respect to international law Our struggle against U.S. imperialism confronts the dominant world power.
The imperialist agenda is reflected in the process of dehumanization of the Black nation, acknowledging America as the mother ship of the wounded octopus which is now the new world order. Our mandate is to propagate and integrate the political and military objectives that represent the history of the Black Liberation Movement by comparing our struggle to those waged by ZANU, ANC, PAC, the Sandinistas, the IRA, and the Palestinians. This comparison illuminates two realities: (1) that our struggle has matured to a world perspective with specific objectives and (2) that the worldwide struggle against oppression is directly tied to our liberation.
Historically, the Black liberation struggle has employed many methods and tactics, which have been very profound and remain to this day. There can be no denying the positive effects of the slogan of Black Power and the positive impact of the Black Panther Party as well as the dynamic influence that Malcolm X had on the world struggle for self-determination. In our pursuit of the application of international law to our struggle, we must not mistake tactics for strategy. The rewards of our struggle derive from a proper analysis of the world, and it will win for our struggle some allies, but it is the justness and determination of our people and freedom fighters that will win the victory. This responsibility lies on our backs and our backs alone.
As current events unfold in the world today, the geopolitical landscape is undergoing a rapid and drastic metamorphosis as decades-old political structures unravel and deeply entrenched ideological and economic systems explode, spewing out the froth of death; it is unmistakably clear that we are witnessing the heralding of a new era.
The new era is demonstrated by the unification of Germany, the fall of Romania’s communism, the razor edge of potential change in South Africa, as well as the political mutations in Nicaragua, Russia’s Perestroika, and ethnic upheavals within the Soviet Republics. In light of these tumultuous changes in the arena of global politics, it is necessary not only to stringently apply and enforce existing international law but to also reevaluate their relevancy and applicability to these world events
Because of these sweeping global political and economic changes, a new and more serious examination must be placed on the question of political dissidents, the right to self-determination, and national Liberation movements within the boundaries of all countries.
Contemporary events transpiring in the world signal the immediate and urgent need for EU nations to embrace the significance of the Geneva Accords, Protocol I and II, as well as various UN Resolutions governing belligerency, conflicts, and internal strife in or around sovereign borders.
These various international instruments, adhered to and recognized by the majority of the world community, provide a very important mechanism through which we may address the universal concern for the prevention of political, social, and religious persecution
Especially in view of ongoing U.S. abuses of political power and the repression its citizens face, the United States cannot be excluded from examination within the context of the aforementioned geopolitical situation. Therefore, any postulate that addresses religious, political, or socially motivated conduct should examine the treatment of U.S. citizens and inhabitants within the context of current U.S. judicial procedures.
Thus, scrutinization of state and federal court procedures and processes are a prerequisite to assuring basic human rights, specifically to guard against the unwarranted criminalization of religious, political, and socially motivated conduct and to guarantee the necessary protection of these basic human rights.
U.S. Democracy and Its Judicial System
The United States has long been viewed as a beacon of democracy, attracting nations toward its democratic style. Many of the world’s nations perceive the U.S. justice system as a force encompassing the relevant attributes and tenets of international law; a justice system that provides protection to dissidents within its borders—a cause that the U.S. government nominally lauds and champions in the most vociferous terms when it suits its purpose. Signatories and endorsers of international covenants and resolutions regarding the protection and enforcement of human, political, and civil rights, especially permanent members of the United Nations Security Council, are perceived to provide the necessary legal mechanism under which conduct in pursuit of political, social, and religious objectives may be properly adjudicated. Unfortunately, this is not the case.
The perspective presented here attempts to deal with and examine the flaws in the U.S. legal system. Moreover, the denial of the existence of political dissidents within its territorial confines negates and denies basic human rights and protections to people and groups involved in various forms of struggle.
Most U.S. laws used to prosecute religious, political, and socially motivated conduct against state and federal power, because of its inherent nature, have systematically denied political dissidents the right to a full defense by prohibiting the introduction of relevant evidence Although the indictments are clearly politically motivated, the government’s consistent contention that its aim is not “political” further circumvents introduction of pertinent mens rea evidence of the defendant’s religious, political, or social reasoning for their alleged violations of law.
If we examine the gambit of jury trials in these cases, one will note that the opening and closing remarks by the prosecutors clearly indicate that they are in fact trying a political, social, or religiously motivated case. The prosecutors convey language that portends terrorism, destruction, mayhem, or the self-motivated intentions of the defendants.
Yet when the defendants approach certain key areas during the trial that would permit responsible discussion about germane factors with regard to the relevant application of the Geneva Accords, Protocols I and II and Common Article 3, respectively, as well as procedural, legal political defenses, the government diverts the attention of the court and jurors by solely focusing on the criminal aspects of the law, thus obfuscating issues of fact and law to suit its own political needs for a conviction.
Moreover, let us piece together the mosaic of executive law regarding politically motivated conduct in the United States to further illustrate the ill intention and mordant behavior cast upon this conduct by the Executive Branch. The U.S. Constitution, as interpreted by the executive branch of government, customarily prohibits the judiciary branch from analyzing under international law the political, social, or religious motive in the context of trial procedures. This prohibition denies dissidents the right to a proper defense. The denial of the right to a proper defense is a violation of the protections provided for under basic international and domestic law. However, a closer look at the process may give rise to some form of procedural strategy.
Do U.S. Criminal Law and Procedure Need to Distinguish Among Political, Social, Religious, and Criminal Conduct?
Historically, the U.S. government has viewed all turmoil and discontent displayed by its citizens or inhabitants as totally a matter of internal domestic affairs outside the purview of international standards, UN resolutions, and other international instruments. However, this postulate is without merit. The numerous human rights bills outlining the protection of political, social, religious, and civil rights will be instructive.
The United Nations has defined basic human rights in an International Bill of Rights under which EU members are pledged to protect specific fundamental rights, including the right of all people to self-determination Four separate instruments comprise this bill: the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; and the Optional Protocol to the International Covenant on Civil and Political Rights. Numerous other declarations and conventions on human rights have also been promulgated through the United Nations.
In addition, there are other instruments of international agreement, such as the Nuremberg defense, the necessity defense to civil disobedience, and the political offense exception to political extradition, which evaluate the political nature of acts.
International Law and the Misapplication of American Jurisprudence to Freedom Fighters, Political, Social, and Religious Dissidents
In the field of international politics, we often see a deliberate distortion of language, a cacophony of deceptive inflection, a modern-day version of the “tower of Babel,” wherein clear and accepted standards are misapplied, taken out of context, or outright ignored. The nuances on the ideological battlefield determine the degree of integrity and emphasis that nations show toward recognized international standards.
In the United States we see a very clear, flagrant example of how language is systematically distorted, of how certain segments of international law are only selectively applied. A process of de-emphasis and total denial is applied to segments of the populace not ideologically aligned or sympathetic to the political agenda of the ruling elite, vis-a-vis the U.S. government.
The U.S. government still continues to deny that there are political prisoners, numerous political prisoners, scattered throughout prisons across America. The truth about the existence of political prisoners in America is something the U.S. government has worked very hard to distort, suppress, and deny. There is a perpetual propaganda campaign encompassing the judicial, legislative, and executive branches of government to systematically manipulate and create false images.
The fact is that there are countless people inside the U.S. and its prisons who are part of active political, social, and religious movements, with delineated ideological structures. Their imprisonment by the U.S. government for their clear political, social, or religious beliefs or conduct stemming from the pursuit of their goals is a clear contravention of international instruments to which this nation is a signatory.
The people and organizations who have been engaged in political activities inside the U.S. have been the victims of the most vituperative and insidious form of propaganda, through the distortion of the “word”—terrorist. The “word” represents the power to shape, distort, or destroy. The U.S. government has criminalized political dissidents, by the usage of special criminal statutes and the political power triggered by the use of the “terrorism” label.
Terrorism
The following definitions establish the minimum criteria used by the FBI to determine if criminal acts should be labeled as acts of terrorism.
Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.
The FBI defines two categories of terrorism in the United States: international terrorism which involves terrorist activity committed by groups or individuals who are foreign-based and/or are directed by countries or groups outside the United States or whose activities transcend national boundaries; and domestic terrorism which involves groups or individuals who are based and operate entirely within the United States and are directed at elements of our Government or population without foreign direction.
Terrorist Incident
A terrorist incident is a violent act or an act dangerous to human life in violation of the criminal laws of the United States or of any state to intimidate or Coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives (emphasis supplied)
Most Frequently Used Federal Statutes
The Terrorist Research and Analytical Center of the Department of Justice has listed the available statutes under the federal penal law that can be used to accomplish the political objectives of its misnamed “counter-terrorism activities”:
The FBI has the lead Federal agency authority to investigate acts of terrorism in the United States. Because there is no all-encompassing Federal law concerning this issue, the FBI bases its investigative and prosecutive efforts on several different Federal statutes
Many political dissidents have been declared criminals. However, we can see a clear change in tactics as political, social, and religious movements matured. Having learned many lessons from earlier waves of U.S. repression, these movements began to actively push to be properly recognized. They petitioned higher bodies of law, reached out to progressive third-world nations to elicit support in international forums, and submitted Prisoner of War motions to domestic courts.
With this newly acquired maturity, political dissidents and their movements became more astute, more able to dynamically emphasize the political nature of their conduct in the face of criminal charges. It was no longer possible for the U.S. government to simply portray them as criminals.
How did the United States government respond? They simply adopted a term that has long been used to distort organized groups and movements in the international arena. They resurrected the McCarthy-era witch hunts for “communists” and brought home to the shores of America the “word,” terrorism, a highly pejorative term. It conjures up cinematic images of bearded, unkempt, wild-eyed men wielding Kalashnikovs and Uzi assault weapons, intent on murder and mayhem, killing innocent people in an anarchic frenzy of random violence.
This is the image that has been systematically programmed into the minds of people, deep into their subconscious, so that when they hear the “word,” terrorism, it automatically conjures up these images. It is this malicious, intentional, and deliberate misrepresentation of political dissidents as “terrorists” that enables the
U.S. government to evade treating political prisoners according to international law, thus making a complete mockery of international laws and standards, reducing them to a mere caricature of what the nations of the world intended them to be
Enforcing International Law
Enforcement of any basic tenet of international law or preexisting instrumentality, whether developed by the World Court or the United Nations, remains an immense and complex problem. Sovereign nations quickly shuffle and invoke legislation that negate the integrity of internationally convened bodies so as to authorize and unauthorize treaties concerning territories, rights to the sea, terrestrial underdevelopment or overdevelopment, and political decisions about emerging or established nations. Notwithstanding the fact that these sovereign nations are signatories to a myriad of established laws, enforcement mechanisms are ignored or in most cases nonexistent
If internationally assembled groupings cannot assure that specific laws are carried out, even after ratification, then alternative measures should and must be sought to ensure that nations that are signatories to these laws are held accountable to the international as well as national community.
Currently, it appears that the sole feasible enforcement method for international decisions is through the use of the domestic courts of signatory nations. However, can approaching the problem from the domestic court have a significant impact on the enforcement of international decisions? The answer is a resounding no! Let us keep in mind that most if not all the abusers come from or are the signatory nation themselves.
A review of the sources from which customary international law is derived clearly demonstrates that arbitrary detention is prohibited by customary international law. Even though the indeterminate detention of an excluded alien cannot be said to violate the U.S. Constitution or statutory law, it is judicially a violation of international law Similarly, the recent Supreme Court decision regarding the use of coerced confessions conflicts with customary international law against torture.
Domestic Court Enforcement of International Law
Using domestic courts to enforce international human rights law, whether directly or indirectly, is a new and challenging area of human rights advocacy. In addition to the substantive problems addressed in this section, many procedural difficulties arise, such as Standing, Sovereign Immunity, act of state, Political question doctrine, Political Offense Exception to extradition and the Nuremberg defenses confront those dissidents anxious to invoke international human rights law in the domestic court context Defendants can argue that amendments to the U.S. Constitution protect conduct of a political, social, and religious nature. While these are difficult times for the postulate of the political defense, we feel that it is an important step for the advancement of human rights protection.
There are many obstacles that the government and Justice Department use to confuse counsel and defendants. However, these obstacles can be overcome with imaginative ideas and through research, sound judgment, skilled advocacy, and political commitment to this area of struggle Moreover, it should be recognized that only through international bodies can you expose the domestic violations of international law. One could only approach structures such as the OAS and the World Court if they have exhausted domestic remedies
Defining in Court Political Legal Approaches
The right to self-determination, that is, colonial situations and conflicts, can no longer be considered a domestic question. The right to self-determination is an international question over which the United Nations can exercise jurisdiction.
As one commentary observes about human rights violations after Helsinki Accord Review in Madrid in 1981, “there was nothing new about human rights violations, but what was new was that governments no longer can claim that mistreatment of its own was its own business.” The Charter of the United Nations enshrined two great principles: One is the principle of respect for human rights and self-determination of people; the other is that of nonintervention, suppression, and aggression against other nations.
The struggle for self-determination by New Afrikan/Black Freedom Fighters has been the primary basis for politically motivated offenses as presented in U.S. courts, politically, religiously, and economically as a direct result to the response of repression in America.
In findings presented after a tribunal concerning political prisoners in America held at Hunter College (1990), a distinguished group of international jurists stated:
The fact that self-determination for African Americans in the U.S. has not been recognized by international bodies was not determinative of the situation.
A review and study of these cases will help provide instructions for properly directing the struggle in domestic courts with the use of international law. International law is “part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of rights depending upon it are duly presented for their determination.
Under the dualist approach to international law, which a certain segment within the power structure promotes, in order to gain more latitude in the application of international law or to circumvent it altogether federal laws will prevail domestically over both conventional and customary international law when a conflict arises. Thus, the U.S. may breach an international obligation and become responsible internationally, as it did when Congress enacted the Byrd Amendment. Pursuant to the “last in time” rule, the enactment of the Byrd Amendment required the president to violate United Nations sanctions against Rhodesia, presently Zimbabwe, and yet not be answerable for such a breach in U.S. courts; this must, and should, be taken issue with if nations are not to be permitted the license of only respecting and applying international law where it suits their own interests.
Nuremberg Defense/Citizens Political Defenses/Diplomatic Defenses
Under the formulation of the Nuremberg defense, the defendant cites the Nuremberg Principles as creating a “citizen’s duty” under both international and domestic law to take action to prevent international crimes, when a citizen’s duty to obey domestic laws would otherwise prohibit such conduct, such as those prohibiting trespass or destruction of private property
Certain premises should be regarded as basic:
A. The Nuremberg defense requires that its principles, as part of international law, predominate over domestic law when a conflict exists.
B. The supremacy clause of the United States Constitution requires that the Nuremberg Principles take precedence over state law.
c. Common sense indicates that the prevention of international crime is more important than avoiding misdemeanors such as trespassing and disorderly conduct.
The Nuremberg Principles and the Nuremberg defenses should be applicable to other violations concerning racial discrimination, genocide, and so on, in the formation of courtroom strategy.
The Nuremberg Principles do not exclude the targeted victim from the protections of international law defenses while they are involved in activities, which are designed to prevent the act of genocide. The Nuremberg Principles are generally perceived as a principle of conscience for the non-victim highlighting their responsibility. These principles are not exclusive to the non-victim. The victim obviously has the right to invoke the principles in order to prevent the genocide of their group.
How Have Domestic Courts Handled the Modern Nuremberg Defenses?
U.S. courts have rejected the Nuremberg defense based on the doctrine of political question and standing. These doctrines prevent the political defendant from presenting any evidence of the Nuremberg defense to the jury. Upon closer scrutiny, however, these doctrines do not provide an adequate justification for the courts’ rejection of the Nuremberg defense.
Recently, the government has also begun using motions in limine to prevent the defendant’s use of the Nuremberg defenses in this context, and such motions raise serious constitutional issues that the courts have not yet addressed. The court took pains to note that the doctrine is one of political question, not political cases: “The courts cannot reject as ‘no lawsuit’ a bona fide controversy involving a claim that some action denominated ‘political’ exceeds constitutional authority. The court listed six factors to consider in determining whether a case presents a political question. These six factors are as follows: (1) the text itself demonstrates a constitutional commitment of the issue to a coordinate political branch; (2) lack of judicially discoverable and manageable standards; (3) impossibility of deciding without an initial, clearly non-judicial policy determination; (4) impossibility for a court to resolve without expressing lack of respect to another branch of government; (5) an unusual need for unquestioning adherence to a prior political decision; and (6) potential of embarrassment from several pronouncements by various government departments on the same question.
None of the factors, however, justifies prohibiting a defendant from presenting the Nuremberg defense. Initial policy decisions are not a prerequisite to allowing the defense because courts have well-developed standards governing the admissibility of evidence. No disrespect is shown to coordinate branches because the defense does not require adjudication of the legality of the underlying governmental policy. No unusual need exists for unquestioning adherence to a political decision, as it is not the political branches that have barred the defense. Finally, the defense does not create a risk of multiple pronouncements because no judicial pronouncement of foreign policy need result from a trial in which the defense was allowed
Political Defenses by Defense of International Law
Various political defenses have been utilized in U.S. courthouses; some have been acknowledged and relief realized by acquittal in jury trials. Others the prosecution opposed vehemently even though the defendants were indicted and charged for obvious political acts.
Sovereign Immunity Defenses
As it is referred to in this document, Sovereign Immunity relates to a 1968 sovereign convention of the Republic of New Afrika and New Afrikans fighting for an independent nation, thereby establishing a government and a governmental structure. In the pursuit of the goals of the sovereign nation, the officials of the Republic of New Afrika at the point of prosecution and pretrial application have filed sovereign immunity and protection stating that officials of another foreign government must receive immunity for local prosecution. Legal efforts in this area to this time have been unsuccessful. See cited case law for further information
Several cases of political prisoners could apply under the internationally recognized Nuremberg standards. That the court argued that the defendants could not invoke the Nuremberg defense was an error as a matter of law, especially if findings and conclusions were based on the status of the defendants as non-victims. The ruling of the court was wrong. Future cases with the same issues could provide a proper record for International Tribune Review of the application of the Nuremberg/Necessity Defense standards to a United States setting
There are also important constitutional protected political defenses that have been useful concerning the right to bear arms and religious protections
Political Offense Exception Defense
There are two types of political offense exceptions: the pure political offense that involves acts directed solely against the state, such as treason, espionage, and sedition, and the relative political offense, in which the act is “a common crime so connected with a political act that the entire offense is regarded as political. The concept of the political offense in American law has been taken from English extradition law Cases that also fall within the ambit of this defense include the following: William Morales, Puerto Rican prisoner of war (P.O.W.); Luis Colon, Puerto Rican Freedom Fighter; Roger Holder, New Afrikan Freedom Fighter; and countless others.
We take particular interest in this defense because it provides exclusive critical criteria for separating and distinguishing political acts and goals from criminal. Further, it is an internationally recognized standard even enforceable in U.S. courts
We raise the political offense exceptions defense mainly as an analogy where the political content of charged criminal acts has determined the nature of those acts. Up to now, this analysis, developed in the extradition context, has been confined to that area. In the case of Silvia Baraldini, an Italian national convicted at the first Brinks federal trial, the political offense exceptions principles were important in the Italian government’s request to transfer her to Italy. The Italian government reviewed the entire case, including the RICO conspiracy charges, and concluded that political motivation was the basis of the case. In Italy, Silvia is recognized as a political prisoner, convicted and sentenced to 40 years for her political support of the liberation movement, including the liberation of Assata Shakur from the Clinton, New Jersey, prison. The U.S. Department of Justice refused to approve the transfer.
Seditious Conspiracy
The Sedition Act, sometimes called the “Alien and Sedition Act,” made it a crime to advocate the overthrow of the federal government. Cases that relate include the following:
The Puerto Rican Chicago Conspiracy, U.S. v. Torres, Cortez & Rodriquez; the Ohio 7 Sedition Conspiracy Trial, U.S.A. v. Levasseur; Arian Nation Sedition Conspiracy Trial, Robert Edward Mills, 87-2008-01-4 (USDC WDArk, Ft. Smith Div.)
We view sedition conspiracy as a generic political charge within the context of U.S. law that allows the defendants to argue the political elements of the indictments, and most importantly, the jury is then charged to review the relevant facts to the law.
When we take a critical look at language used in the indictments in most political trials, the variations are profound. For review, see the Resistance Conspiracy Case (the Capital bombing) The charge language in the indictment is as follows:
To influence, change and protest policies and practices of the U.S. government concerning various international and domestic matters through the use of violence and illegal means.
What is the distinction the government makes when charging, for example, the defendants in the case that I was convicted with the basic conspiracy and with other Racketeering Influenced Corrupt Organization (RICO) and the aforementioned sedition charged with basic conspiracy and with other cases with criminal RICO as to the aforementioned sedition charged cases (Ohio 7, Alien Nation Sedition, U.S. v. Torres). What this shows is that the prosecution is now clearly dependent on the Justice Department’s overall strategy and tactics of how COINTELPRO and foreign policy can be served as opposed to the political objectives of the defendants charged. Thus, it is clear from our point of view that the government’s charges cannot be the basis of determining political elements of the cases at bar.
P.O.W. Defenses
This is a very pertinent area since many defendants have asserted and attempted to file P.O.W. motions addressing their political motivations In the beginning of the 1980s, as the result of Protocols I and II to the Geneva Convention of 1949, the application of the P.O.W. defense in the international community was broadened, with national liberation movements being aligned within the P.O.W. scope. Within the United States, defendants have met resistance from their attorneys,
U.S. prosecutors, and trial judges. Defendants have come from every walk of life and, in particular, the New Afrikan Independence Movement and the Puerto Rican Independence Movement. Although many of the present defenses are unrecorded in case law, the defendants eloquently articulated their defenses pertaining specifically to their initial thrust for independence of their people. And although these defenses have been rejected by the domestic United States courts, the international impact of this position cannot be underestimated, even when that impact may unfold years later. The P.O.W. stance taken by Guillermo Morales helped in the decision reached by Mexico leading to his current political asylum in Cuba.
On the Question of Political Defense
The P.O.W. motions have been used to raise the question of self-determination inside the U.S. judicial system. The comrades should not be barred from using, in conjunction, political defenses such as the Political Offense Exception Exemption (POEE) analogy, Nuremberg defenses, and necessity defenses to correctly place their actions in a proper political context. Allowing these defenses means recognizing that the jury, acting in its constitutional mandated role as the consciousness of the community, should decide in light of all relevant fact and law, whether the defendants are guilty of committing a crime. Thus, without actually finding a violation of international law, a jury could find that the defendant’s acts were lawful under a crime preventive privilege because they reasonably believed an ongoing violation of international law was occurring. This is precisely what happened in Vermont v. McCann. The McCann court did not find that the policy in question was illegal. Rather, it simply permitted the defendants to present the Nuremberg defenses to the jury, allowing the jury to find that the defendants had legal authority to trespass. The McCann court did, however, distinguish between choosing among competing lawful foreign policies (a political question) and finding a policy option illegal (a judicial question). It reasoned that the choice among legal options is a political decision in which the judiciary plays no role. The McCann court, however, viewed the legality of a particular foreign policy as appropriate for judicial determination.
Standing—Political and Necessity Defenses
The doctrine of standing stems from both constitutional and juris prudential considerations. The constitutional concern derives from the “case or controversy” requirement of Article III of the United States Constitution. As indicated in Allen v. Wright, the standing requirement has two components:
1. The party must have suffered an actual or threatened injury; and
2. The injury must be “fairly traceable” to the opposing party’s conduct and “likely to be redressed” by a favorable decision.
See Freedom of Information Act files of individual defendants and the scope of COINTELPRO to satisfy the above requirements for the petitioners.
Summation
The defendants in politically indicated cases, who are charged with substantive acts as well as conspiracy, must carefully and creatively think out their standing and options to pursue various tactics in order to invoke those defenses that should correspond with the facts and proof and to determine the degree to which the jury will play a role in the determination of the law and facts. An example is Quinn v. Robinson, which allowed the defendant in this POEE case to invoke the defense without surrendering U.S. constitutional protection against self-incrimination.
Creative application and motions can be helpful in satisfying our goals of challenging criminalization and providing a clear political record for international bodies to evaluate as well as to provide proof of the government’s role and view of the defendants through the discovery process.
There are many cases not listed in this prospectus, the genesis of which nevertheless originates from the same political persecution. Any cases concerning the Black movement, Black struggle, anti-imperialism, and the Black Liberation Army whose prosecution was a direct result of COINTELPRO and low-intensity operations who failed at trial to have proper political defense motions should be interested in involving and analyzing said political and international law defenses.
Helpful Reading Materials
Dean, Benjamin P. “Self-Determination of U.S. Support of Insurgents A Policy Analysis Model.” Military Law Review 122, (1988): 149–220.
Falk, Richard, Fredrich Kratochwil, and Saul H. Mendlovitz, eds. International Law: A Contemporary Perspective. Boulder: Westview, 1985.
Gomulkiewicz, Robert W. “International Law Governing Aid to Opposition: Groups in Civil War Resurrecting the Standards of Belligerents.” Washington Law Review 63, no. 1 (1988): 43–68.
Lawrence, Frank. “The Nuremberg Principles: A Defense for Political Protesters.”
Hastings Law Journal 40, no. 2 (1989).
Miller, David H. “Non-International Armed Conflicts, American University Law Review 31: 897.
Hamalengwa, M., Slinterman, C., Dankwa, E.V.O. “Domestic or National Remedies, Domestic Courts Enforcing International Law The International Law of Human Rights in Africa, Basic Documents and Annotated Bibliography.”
Landau, Saul. “Dangerous Doctrine: National Security & U.S. Foreign Policy.” Pyle, Christopher S. and Barbara Ann Banoff. “To Surrender Political Offenders: The Political Offense Exception to Extradition in United States Law.” NYU Journal of International Law and Politics 169 (1984).
Ranelagh, John. “The Rise and Decline of the CIA.”
Acknowledgments
Special Thanks to Loti Ocasio Reyes, Malik Dinguswa, and Rashaad Shabazz.
1This was written in 1991.
2This paper was developed prior to the Gulf War. The conditions that now have emerged as a result of that war, in Iraq and Kuwait, as well as the recent turmoil in the Soviet Union, demonstrate the urgent need to address human rights protection and violations by international standards where there exists internal political conflict and belligerent military conflict.
3The many internal armed conflicts since 1949 have highlighted the deficiency in Common Article III and illustrated the need to develop new rules for regulating internal armed conflict. From 1974 to 1977, 124 states, 50 nongovernmental organizations, and 11 national liberation movements participated in one or more of the four diplomatic conferences that produced the two protocols added 10 the Geneva Convention of the August 12, 1949. Protocol I was intended to update the law of war regulating international armed conflict between states. Protocol II was adopted to regulate internal armed conflicts. Both Protocol I and II were accepted by the Executive Branch of the U.S. up until the Reagan Administration.
4See sections on political defenses and cases cited therein.
5The question of self-determination will be discussed below. Research demonstrates that the particular issue of self-determination is a primary factor for most political contention within the U.S. albeit not the exclusive Doe.
6Terrorism in the United States. Washington, D.C.: Terrorist Research and Analytical Center, U.S. Dept. of Justice, 1987.
7Ibid., Among these are Titles 18, 26, and 42 of the United States Code.
8Christopher H. Pyle, "Defining Terrorism," Foreign Policy 64 (1988): 63–78; Jay M. Spilane, “Terrorist and Special Status, British Experience in Northern Ireland,” Hastings International and Comparative Law Review 9, no. 3 (Spring 1986): 481–518.
9The precedent of the recent enforcement of the UN Resolution concerning Kuwait and Iraq resulting in allies’ participation in the Gulf War must be viewed in light of U.S. interest. For example, the U.S. did breach an international obligation and became responsible internationally as it did when Congress enacted the Bird Amendment, which pursuant to the “lasting times” rule required the president to violate U.S. sanctions against Rhodesia, now Zimbabwe, and yet not be answerable for such a breach in the U.S. court or the international community.
10Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980). https://law.justia.com/cases/ federal/district-courts/FSupp/505/787/1950110/.
11The following legal principles are defined. Standing doctrine is a standard to determine who can “stand” in court and advocate for their interests. Sovereign Immunity provides a government entity the right to choose if it can be subject to criminal prosecution. Act of state doctrine is a federal legal principle that a court will not rule on the legitimacy of another sovereign government operating within its jurisdiction. Political question doctrine is where federal courts refuse to hear a case because the issue is extremely politically charged. Political offense exception is a provision that prevents extradition if the prosecution of the individual in custody is political in nature. Nuremberg defense is a plea by a defendant, particularly a combatant, should not be considered guilty if following the orders of a superior.
12U.S. courts have held repeatedly that human rights clauses of the U.N. Charter are not self-executing and, hence, vest no enforceable rights to individuals. While the legal impact of such a declaration is deplorable, human rights lawyers and those attorneys who support and defend New Afrikan/Black Freedom Fighters and their allies should use U.S. courts to enforce to the fullest the rights guaranteed in the international instruments; they should help mobilize public and congressional support against the self-defeating declarations presented by the courts.
13Hurst Hannum, in collaboration with Richard B. Lillich and Stephen Saltzburg, Materials on International Human Rights and U.S. Criminal Law and Procedure (Washington, DC: The Procedural Aspects of International Law Institute, 1989), 98.
14The Paquette Habana, 175 U.S. 677 (1900). https://supreme.justia.com/cases/federal/us/ 175/677/.
15Frank Lawrence, “Nuremberg Principles: The Defense for Political Protesters,” Hastings Law Journal 40, no. 2 (1989): 398–399, 420.
16Ibid.
17Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (M.D. Ten. 1962). https://casetext.com/case/ baker-v-carr.
18The criminal case involving Susan Rosenberg and Timothy C. Blunk, resulting in 56-year sentences for each, directly concerned the Nuremberg defense. Rosenberg and Blunk pursued a Nuremberg defense in nonviolent charge of possession of explosives and other identification paraphernalia. If they were successful, the jury would have had the proper law in which to decide the fate of these comrades. Surely, as in the McCann case, if the nonviolent standard was applied as a standard of the necessity defense could be applied.
19Imari Obadele & RNA (11). United States v. James, 528 F.2d 999 at 1005, 5th Cir. 1976. Chokwe Lumumba, 741 F.2d 1214 (2d Cir. 1984). RNA (3) (State of Mich.—citation not available). R.A.M. Herman Ferguson, Criminal Anarchy—New York State Case.
20The cases that the Nuremberg defense could apply to include the following cases: United States v. Montgomery, 722 F.2d 733; United States v. Lowe, 654 F.2d 562; United States v. May, 622 F.2d 1000; Switkev v. Lared, 316 F. Supp. 358; United States v. Valentine, 288 F. Supp. 957; United States v. Berrigan, 283 F. Supp. 336; Vermont v. McCann, No. 2857–786, D.Vt. Jan. 26, 1987, Reprinted in 44 Guild Practice 101, 1987; United States v. Susan Rosenberg & Tim Blunk; People v. Gray, N.Y. Crim. Ct. Part 10.
21RNA (3) and RNA (11). United States v. Dickens, 695 F.2d 765. Warren Brown, et al., Nos.: 86-3065 through 3069 Commonwealth v. Africa, CP No. 78-08 U.S.A. v. Abdul Muzikir a/k/a Marquette Hall Criminal # 20633-77.
22See Anglo-American test, French test, and Swiss test for further understanding of the criteria of POEE analysis. In Re Macklin#, 80 Cr. Mis.!, slip op. (S.D.N .Y., Aug. 13, 1989) [available on Lexis]. See also Quinn v. Robinson, 783 F.2d 776, 793-94 (9th Cr. 1986).
23In Re Castioni, 1 Q.B. 149. [Taken from U.S .A. v. Shakur, SSS 82 Cr. 312 (CSH) and U.S.A, v. Buck, 84 Cr. 220]. E.R. v. Wilkes, 641 F,2d 504, 514.
24See In Re Doherty, 599F. Supp. 270 (S.D.N.Y. 1984). (Trial Judge Sprizzoin his opinion when considering Doherty’s defense chose to juxtapose and distinguish the Black Liberation Army situation.)
25“Statement from the “Resistance Conspiracy Case” Defendants. (July 1988). https://freedomarchives.org/Documents/Finder/DOC511_scans/RCC/511.RCC.StatementFromDefendants.July1988.pdf (June 10, 2022).
26United States v. Shakur, 890F.Supp. 1291 (S.D. N.Y. 1988). United States v. Morales, 464F.Supp. 325 (E. D.N.Y. 1979). People v. Bottom, Ind. No. 5694-74, (N.Y. Co.) 1971 Sentencing Memorandum, May 12, 1975; United States v. General Manuel A. Noriega Case No. 88-79 CR Hoeveler. See also: Ruchell Magee case in California; United States v. Sekou Odinga POW motion–1st Brinks Case–84 Cr. 312; United States v. Ferguson, 758F.2d 843, 846-47 n.l (2d Cir.) cert. denied 1065 Ct. 124 (1985); United States v. Ferguson, 758F.2d 843, 846 in Part I, 2nd Cir. 1983; (Brinks case). The sentencing memo of May 12, 1975, stated that the 1971 case involving Jalil Muntaquin, Nuh Washington, and Herman Bell (People v. Bottom) was a case of active war. By 1971, the U.S. COINTELPRO dirty war against the Black Liberation Movement had resulted in scores of political assassinations of political and military leadership of the movement as well as a brutal assault on the efforts to defend the movement. The assassination of four police officers claimed by the Black Liberation Army was a direct outgrowth of an uprising and resistance against oppression. The judge’s sentencing statement classified these acts as an act of war and sentenced these comrades who were charged with these acts as prisoners of war.