On the Issue of Comfort Women

On the Issue of Comfort Women

 Historian Yoshiaki YOSHIMI details the issue of “comfort women” (or 従軍慰安婦) in his article as a criticism against the conduct of the Japanese government and its officers during the stage of its so-called “imperialism” in East Asia. The following are the claims he makes against the Japanese government in his report:

1. The Japanese government authorized the use and employment of “comfort women” in the Japanese military during the war.
2. These “comfort women” were primarily recruited out of its imperial colonies, with a clear majority of them being Korean and Taiwanese.
3. Trafficking of women and children was a breach of International Law (International Arrangement and Conventions for the Suppression of Traffic in Women and Children) and the laws of war (rape was a committable war crime) to which Japan was a clear signatory of.
4. It was necessary for Japanese military to employ “comfort women” for the sake of sustaining the war.
5. The issue of “comfort women” was passively buried under wraps by the Japanese government after the war.

Prostitution is not an uncommon element to war, in fact one could even say that they go together hand in hand; there are many documented examples of history regarding government and/or military sanctioned-prostitution, with the Cavour Law of 1860 in Italy[1] after the Resurgence wars[2] being a notable example. Military prostitution, in fact, was not considered a war crime or a human rights violation prior to recent years (and developments in global human rights) and there have been many reports and accusations of military prostitution against the United States army in Korea, the Philippines, Okinawa, etc.

Setting the legality of military prostitution aside, the issue at stake for Japan has never been against the employment of prostitutes by the government, but rather of whether such actions taken by the Japanese government were consistent with the contemporary laws of war and international human rights regulations at the time. The biggest of the accused violations in contention is that the Japanese recruitment of “comfort women” constituted a form of slavery (as per 1926 Slavery Convention of the League of Nations) and/or forced labor (as per the Forced Labor Convention of the ILO). The Japanese government, given that the accusations against it listed in the article are all in bona fide, would also be guilty of trafficking women and children if the accounts of under-21 year old women in the army were to be believed.

Yoshimi however, is not overly disdainful on the general policy of military prostitution; Yoshimi clearly identifies that the Japanese government at the time clearly felt a need to provide “relief” to soldiers during the course of the their long “war of aggression” and even lauds the government’s systemization of the process in its “type two” comfort houses through which wide spread of venereal disease throughout the ranks were effectively put into check. Yoshimi also comments on the fact that the Japanese government saw the recruitment of “comfort nurses” from its then imperial colonies preferable over recruiting those from its forty-seven prefectures, since the government was not restricted to the recruitment of prostitutes in the then-colonies of Korea and Taiwan due to the exclusionary clause in the convention against trafficking women and children—recruiting women who weren’t prostitutes as “comfort women” into the military, at least in the minds of the Japanese government at the time, would serve as an efficient way of providing “relief” to its soldiers without “weakening their fighting spirit” through contracting sexually transmitted diseases.

Yoshimi concludes his report by stating that the Japanese government did issue a formal apology for its policies regarding “comfort women” during the war and acknowledged the fact that the war-government was indeed involved in recruiting, funding, and managing the “comfort women” effort, as detailed by Prime Minister Miyazawa during his 1992 visit to Korea. Prime Minister Murayama apologized again in 1995[3], but echoed Miyazawa’s statements, alleging that the government merely sanctioned and regulated the comfort houses and did not play an active role in their creation and proliferation. Most recently in 2007, a much-lauded attempt by Prime Minister Abe in apologizing for the human rights violation once again curtailed that the government did not intend or sanction the forceful recruitment of women as “comfort women”, and also correctly identified that the term i’anfu was not one officially coined during the war, but one popularized by the media and the press, most notoriously by one Senda Kakou in his book Ju’gun I’anfu published in 1973.

In conclusion, the case of the “comfort women” can be seen as yet another government-sanctioned mass-breach of international law/human rights processed under the guise of a euphemism; although it should be noted on a personal note that when compared to others which have adorned the halls of atrocities caused under the guise of euphemisms such as “ethnic cleansings” or torture of “illegal enemy combatants,” the sanctioning of “comfort women” doesn’t seem to be as unnatural or unforgivable as contemporary media and historians have made it out to be.

 

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[1] See Gibson, “Prostitution and the state in Italy, 1860-1915”, Ohio State University Press, 1999

[2] 1814 – 1861

[3] See Murayama’s statement given on the occasion of the 50^th anniversary of the war’s end

The Evolution of Habeas Corpus

Abstract
This research aims to validate the evolution of habeas corpus in the way it manifested in the common law tradition. This paper will document how habeas evolved from a simple summons to court to an extraordinary writ of liberty which allows a prisoner to be acquitted in the event of a wrongful committal; this paper also aims to justify the various ways in which the Great Writ has been used in American case law, specifically in regards to the subject of its suspension and its extraterritorial ambit.

The History of the Great Writ
Though Historians generally credit the birth of the Extraordinary Writ to the signing of the Magna Carta in 1215, the idea that a man should not be unreasonably detained and be tried before a panel of arbiters before being committed to gaol was a familiar thought that had already existed for many centuries prior to its existence. The most romanticized examples of these include the Athenian courts which arbitrated the trial of Socrates[1]; the Sumerian courts which closely followed the oft lauded Hammurabi codex; and the ecclesiastical courts of King Solomon[2] whose wisdom is admired by both scholars of law and religion alike. 

Setting ancient thoughts aside for later consideration, it is safe to say that the writ of habeas corpus was written into existence not through a single moment of Archimedean genius, but in recognizing that the rights provided by the writ do and should inherently exist in a just legal system; the writ of habeas (or at least the ideas sustaining it) evolved into life from a collective necessity and will of the people, much akin to the way biological organisms evolve to better adapt to their changing habitats. In order to better understand this evolution it is necessary to first examine the history and the background issues which necessitated it, which shall be my topic of discussion for the following paragraphs.

The events leading up to the Magna Carta perhaps served as an eerie historical precedent to the theme of Hobbes’ Leviathan; King John reigned over a war-torn England from the likes of his predecessor Richard I’s ventures into the holy land and his vendettas against France—which eventually ended up in French invasion of then-English Normandy—the papacy, and his barons.[3] On top of the circumstantial predicaments inherited by King John, his ruthlessness and disregard for traditional justice during his absolutist reign[4] stirred up anxiety and discontent in his subjects whose grievances against the king were addressed in a great charter of freedoms which came to be known as the Magna Carta.

The aim of the Magna Carta was to firmly redress the formerly established relationship between king and subject[5] where the king would not stand as the absolute Schmittian sovereign at all times, but rather be bound by law and legal procedures like any other subject under the crown.[6] The Magna Carta afforded all subjects under the crown with protection from unreasonable abuse of sovereign power and laid down the spiritual foundations for many civil libertarian ideals to come, but for the sake of our interest, we shall only concern ourselves with articles 38 through 40 of the Great Charter.

The three articles which make up the habeas portion of the Great Charter strike a remarkable resemblance to the Constitutional Bill of Rights—the 5^th and 7^th amendments in particular—in that they both emphasize the protection of a subject’s legal integrity in court. Article 38 of the Great Charter[7] states that:

 

“In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it,”

 

thereby protecting the accused of self-incrimination in court; Article 39 claims that:

 

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement [sic] of his equals or by the law of the land,”  

 

guarding subjects against arbitrary abuse of sovereign power in the process of justice and advocating trial by jury; and finally, Article 40 of the Great Charter guarantees one with a speedy trial under law by holding that

 

“To no one will we sell, to no one deny or delay right or justice.”

 
Thus the passage (and subsequent repeal and redrafting) of these three articles into common law echoed the age-old tradition as held by the courts of Athens, Hammurabi, and Solomon by confirming the inherent necessity for the right of the accused to be able to defend themselves in court without unreasonable interference from the sovereign. The Great Writ was therefore evolved in this first stage from being merely a collective necessity and will, to that of written law.

Though many, as aforementioned, credit the Magna Carta with the introduction of the Great Writ to common law, the Magna Carta in reality only served as the spiritual foundation of the writ. The Great Charter itself was not formally accepted into English law until ten years after King John’s ratification of the charter at Runnymede.[8] As an effect, the formal application of the writ was seen to be in ambiguous grounds prior to the establishment of the common law courts[9] (which was also in part, established by the Great Charter.[10])

The idea of habeas corpus cum causa or appropriately translated “having the body with cause” was a familiar concept in civil procedure which most likely predated articles 38-40 of the Magna Carta.[11] Habeas corpus in its early form was but a simple command which ordered to have the defendant to an action brought physically before the court.[12] It is noted that this early form of habeas was based loosely on the authority of three pre-existing medieval writs[13]: the writ de homine replegiando (“personal replevy”), which (by medieval application only) was the actual order which was issued in bailing a person out of prison; the writ of mainprize, which was issued to sheriffs or corresponding authorities to secure a person’s appearance in court; and finally the writ de odio et atia (“from hatred and ill will”), which was a command issued to the sheriff to inquire whether a prisoner committed under charges of homicide was done so with justified causes or “from hatred and ill will.”

Given such precedents, early habeas at face value did not embrace the idea of producing the body with the cause of his detention, and records of early application show that the purpose of the process—which usually took place prior to actual detention—was to order an officer to bring in the defendant, regardless to the cause of detention.[14] Habeas in its early form, therefore, was not a ‘remedy of general application’ as it is seen now, but a special procedure used under special circumstances. Due to the fact that the three medieval writs previously mentioned could not be applied in matters concerning the crown, and the proposed writ of habeas of the day was merely akin to a summation of those three writs, (with the added factor of bringing the cause and matter of imprisonment before the court) habeas corpus was still ineffective in safeguarding the individual from arbitrary detention and arrest.

The application of habeas did evolve further in the fourteenth and fifteenth century with the King’s Bench’s efforts of centralizing the courts, where the writ was directed by the central courts against the local inferior courts’ jurisdiction so to “channel the litigation” toward the centralized administration[15]. The central court achieved this by exercising the habeas-given authority to summon the accused to the court of law against the inferior courts, thereby poaching the defendant from the inferior court under the claims that the defendant could show some sort of special connection or merit of having his case heard there. From this battle of the courts was inadvertently born the idea of associating habeas corpus with requiring the cause to be shown for the imprisonment or detention of a person, as well as testing the capacity of the tribunal which had ordered the detention of the defendant.[16]

By the late sixteenth and the early seventeenth century however, the core function of habeas changed from executive procurement and/or detention of subjects to that of challenging executive commitments[17]. Such examples were found in Searche’s Case[18], where the Queen’s Bench was forced to discharge a prisoner who was detained under a criminal charge that the Queen had designated as a surety to receive protection from arrest; and in Howel’s Case,[19] where a prisoner’s release was demanded to the Queen’s Bench under claims that there was insufficient cause for arrest and detainment. In response to the inferior courts’ passive insubordination to the Crown Courts was passed the Resolution of 1592, which gave an ambiguous response to the situation by stating on one hand that:

 

“[P]ersons [charged with high treason] before committed may not be delivered by any of her Courts without due trial [sic] by law, and Judgement of acquittal, had,”

 

while maintaining that the sovereign maintains the right of discretion in the detaining and committal of persons by advocating that:

 

“[T]he Judges may award the Queen’s Writs [of habeas] to bring the bodies of [those committed with high treason] before then, and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be, then the Judges in the cases before ought not to deliver hum, but to remand the prisoner to the place from whence he came.”

 
The sovereign abuse of the writ of habeas, and judicial reluctance to stand up against the crown finally made it clear that the power to commit prisoners by the state was clearly being abused, and that eventually came around to becoming the biggest issue to be settled on the question of habeas corpus. No single act has been celebrated more in the history of common law after the Magna Carta than that of The Five Knights’ Case[20] which resulted in the drafting of the Petition of Right, which established the principle that the sovereign could not imprison under the authority of per special mandatum domine regis (“under special command of the King”) without showing cause.

The Five Knights’ Case was submitted to the Kings Bench for habeas review by Sir Thomas Darnel along with four other knights, who were arrested by the order of the King for their refusal to comply with a forced loan order issued by King Charles I, who through the forced loans schemed to raise revenue without Parliamentary sanction. The five knights challenged their detention on the grounds that the forced loans order did not have Parliamentary sanction and was therefore, illegitimate, and also under Article 39 of the Magna Carta which states that no free man is to be imprisoned except by the lawful judgment of his equals, or by the law of the land. 

The Court however, refused to bail the prisoners, relying on the Resolution of 1592 and the ambiguity in the meaning of the phrase “law of the land” as written in the Magna Carta as a justification of such a verdict. Chief Justice Hyde stated that “if a man be committed by the commandment of the king, he is not to be delivered by a habeas corpus in this court.”[21] The judges also recognized that a prisoner could not be delivered on habeas corpus without having been tried, and that he could only be tried if the cause were expressed,[22] thus opening doors for further discussion of the verdict by Parliament.

Subsequent with the Five Knights’ verdict came the passage of the Petition of Rights, which was drafted in hopes to redress the issues of arbitrary taxation, forced loans, arbitrary imprisonment, and most importantly, that of the habeas question as raised by the Five Knight’s Case:

 

“[Y]our subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty’s writs of habeas corpus… no cause was certified, but that they were detained by your Majesty’s special command… without being charged with anything to which they might make answer according to the law.[23]”

 
Although the Petition by its own right restored the normative process of the writ, and in the words of Lord Coke “claimed rights implicitly conferred by the ancient laws, not so much as enact new ones,” the fact that it was in nature a “petition” as opposed to being a “statute” or a “law” made its application difficult and sovereign compliance to it a near-impossible feat. Although Charles I initially agreed to the terms of the Petition, quoting it to be a “confirmation of the ancient liberties and rights of the subjects,”[24] his nonchalant attitude toward the Petition was soon made clear. The king, in further efforts to finance his efforts during the English Civil War imposed the ship money tax, a tax which could only be enacted during wartime, contrary to Clauses I and II of the Petition of Right which spoke out against arbitrary taxation. The integrity of the Petition lay further in shambles as Charles further committed prisoners without making returns to the writ of habeas, as was the case in Freeman’s Case.[25]

Little solace was to be had with the passing of the Habeas Corpus Act 1640—which abolished the arbitrary concilliar courts that were set up by Charles I[26] and provided that anyone imprisoned by the King or Council should have his habeas corpus and be brought before the court without delay[27]—as Charles I was executed and replaced by Oliver Cromwell, during whose time as Lord Protector a strict judicial deference was observed regarding the subject of Habeas Corpus.

But relief would come at last after Cromwell’s death and the ascension of Charles II to the throne as the Parliament, in its long-awaited reconvention, passed the Habeas Corpus Act of 1679, which established a place for the writ in the constitution, and in the popular conception as a fundamental guarantee of liberty.[28] The main issues that the Act of 1679 dealt with were concerning the loopholes within the serving of the writ, those especially to do with detention and bailing (or the lack thereof) of prisoners:

 

“[I]f any person or persons, subjects of this realm, shall be committed to any prison or in custody of any officer or officers whatsoever, for any criminal or supposed criminal matter, the said person shall not be removed from the said prison and custody… unless it be by habeas corpus or some other legal writ,”[29]

in light of a practice held up during the time of the protectorate where prisoners committed by the executive would be moved from one prison to another or even to a prison outside the jurisdiction of the crown to avoid releasing the prisoner.

The Act also made available the issuance of the writ in any court of law at any time[30]; made illegal the illegal imprisonment of prisoners beyond the seas and outside the realm of the Crown[31]; and also outlawed double jeopardy.[32] The Habeas Act of 1679 therefore restored the normative order of the writ of habeas as it existed prior to the Resolution of 1592 and permanently established the principle that the efficacy of habeas corpus as a part of due process should not be thwarted[33].

And thus the writ of Habeas Corpus was melded and evolved into its recognized form today.

Modern Applications of the Great Writ: Executive Suspension
The idea that absolute sovereign power be vested unto one individual who is best equipped to lead a state out of crisis in times of emergency is not an unfamiliar concept to the political history of any state. Since the time of the Roman dictatorship, normative public order has been suspended on the basis of its right to self-preservation—perhaps as proof that it is indeed superior over the validity of the legal norm as Carl Schmitt contends[34]—as a way of sparing the state from becoming a victim in the bellum omnium contra omnes that tends to accompany the hysteria of a state of emergency.

With regards to the Great Writ, the idea that it could be ‘suspended’ and its privilege taken away from the general public during a time of emergency was never a fading thought throughout the history of its formation. Recall back to the events surrounding the Magna Carta where King John anachronically suspended the writ of habeas during his travails against France and the papacy; or back to those surrounding the Petition of Right, where Charles I also inadvertently suspended the writ to force those who wouldn’t pay taxes (albeit illegal) into submission. The bottom line here is that the idea that normative due process could be suspended by the executive during times of perceived need had existed even prior to the formation of habeas, and the fact that the extraordinary writ encompasses everything that needs to take place for normative due process to take place, it has if nothing else, made it easier for the executive to supersede the laws of the state.

The two main issues that cannot be left out in discussing the suspension of habeas corpus are that of liberty and exigency. The idea of liberty comes into play from the classical debate of whether liberty should be sacrificed for the sake of security, (or in the curious case of Benjamin Franklin, whether having such considerations merit having either of those things) or whether personal liberty is something that should be preserved at all costs. The case of exigency is contingent on that of liberty, chiefly in the manner of deciding what the special considerations that come into play in the event that liberty should be sacrificed for the sake of security, and how those specific considerations will affect the running of the courts.

The most important legal consideration which came into play during the formation of the Great Writ was that of the on-and-again off-again power of the Crown to commit a subject without formally charging with a viable crime. In the previously mentioned case of the Five Knights, the courts held that no justification was needed other than the King’s “special command” for committal despite heavy dissent from Parliament. By affirming that the King’s “special command” was circumstantially enough to commit a possibly innocent subject into gaol, the Courts thus ascertained that the King had a right to control discretion[35], or more broadly put, the King and the King alone had the power to decide the merits of the case.

The King‘s victory was short-lived, as passage of the Petition of Right abolished the executive’s power to detain as held in the Five Knight’s Case. Through the extension of admitting that the writ of habeas corpus should remain in effect at all times, the executive was also deprived of all discretionary powers in ordering the arrest, leaving only the will of the Parliament capable in exercising emergency powers in the face of crisis.

Unlike the case of the United States Constitution, where the power to suspend the writ of habeas under bona fides is implicitly reserved to the executive and the legislative branches through in its 1^st and 2^nd articles, “suspending” the writ of habeas in the American sense was quite a tricky feat to accomplish, nonetheless one which required some form of Parliamentary sanction.

The first method employed by Parliament of suspending the Great Writ in response to grave public danger was witnessed with the Habeas Corpus Suspension Acts of 1745, 1746, and 1747, in the face of impending Civil War. Unlike the traditional sense of “suspension” however, the suspension acts neither delayed nor halted the process of the habeas writ, but simply claimed that those arrested for or under suspicion of high treason could not be bailed or tried unless by the order of the executive council for a period of one year. The “suspension” in statutory form did not suspend the actual write, but prevented the issuance of a writ discharging a person detained under said charges and/or suspicions of high treason.[36]   

The dawn of the nineteenth and the twentieth centuries saw the fall of imperial rule and the rise of nation-states and with it, a world in war. The threat of total war necessitated more extreme measures to meet and preserve the state from crisis, and with such necessity, the Great Writ evolved once again. The significant aspect of the twentieth century habeas is found in the proverbial phrase inter arma enim silent leges; Parliament for the first time delegated the executive powers which enabled it to define the limits of its own powers.

The very first enactment which reflected this shift of power was the Defense of the Realm Act of 1914, which delegated to the executive in council “power… to issue regulations for securing the public safety and the defense of the realm.”[37] Although the act itself made no specific reference to internment, the executive was given the power to intern those deemed a threat against the “public safety or the defence [sic] of the Realm” through the powers newly delegated to the executive.

The sudden gain of executive discretionary power was appealed in front of the House of Lords in the case of R. v. Halliday,[38] where Arthur Zadig, a naturalized British citizen of German descent, appealed his internment after being detained under suspicion of being of hostile origins and associations. The defendant argued his case on the grounds that the power to intern was not explicitly specified under the Defense of the Realm Act, thus rendering the internment scheme ultra vires and ultimately making his internment illegal.

The House of Lords responded by claiming that the Defense of the Realm Act intended to empower the executive “for paramount objects of State, to invade by legislative enactment that liberty in certain states of fact.”[39] The House of Lords thus maintained that internment had been adopted for the purpose of providing for the safety of the realm, and the powers in the Defense of the Realm Act had not been superseded.

In a daunting statement which clearly displays the extent judicial deference in the face of exigent crisis, Lord Atkinson gave the following statement in his concurrence to the decision:

“However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement.”[40]

Modern Applications of the Great Writ: The Extraterritorial Ambit of Habeas Corpus

(a)   The Case of the Commonwealth

Although no questions need to be raised in the applicability of the Great Writ within the territories under sovereign

jurisdiction to the sovereign state issuing the writ, special considerations must be made in determining whether the writ

actually has an extraterritorial ambit, that is, whether the writ of habeas corpus can actually reach outside the dominion of

the sovereign.

In the early stages of habeas’ evolution there was little need for writ to actually extend outside the British Isles, as the territorial boundaries of England did not extend far beyond that of Scotland and Ireland. This was greatly changed in the late 17^th and early 18^th centuries, however, as the Commonwealth was established and the United Kingdom grew to become the biggest imperial power in the world, with its territories extending from the American colonies to the entire continent of Australia.

Whereas sufficient reason and necessity for an extraterritorial habeas was now found, actually awarding the Great Writ with an extraterritorial ambit would require much effort, especially since common law does not “recognize the effectiveness of judicial process outside the territorial jurisdiction of the court.”[41] Although this renders issuing the writ to a foreign country all but impossible, the fact that the writ does not depend on the jurisdiction of the court but upon the authority of the sovereign over his subjects, this does in effect allow for the writ to be issued to those extraterritorial areas which are subject to the dominion of the Crown.

The Habeas Corpus Acts of 1679 and 1816 both certify this claim in that the writ of habeas can be issued outside the immediate territory of England so long as the territory in question is within the dominion of the Crown. Article XI of the 1679 Acts states that:

 

“[H]abeas corpus according to the true intent and meaning of this act, may be directed and run into any county palatine, the cinque-ports, or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey or Guernsey; any law or usage to the contrary notwithstanding.”

 

while Article V of the Act of 1816 extends this extraterritorial reach to the Isle of Man.

            
Following the embarrassing happenings of Ex parte Anderson—where the Queen’s Bench issued a habeas writ to a prisoner in Upper Canada only to discover that the Upper Canada Court of Common Pleas had already liberated Anderson by the time the writ had arrived—Parliament passed the Habeas Corpus Act of 1862 which both repealed the extraterritorial provisions as provided by the Acts of 1679 and 1816, while once again reaffirming the extraterritorial ambit of the Great writ:

“No writ of habeas corpus shall issue out of England, by authority of any judge or justice therein, into any colony or foreign dominion of the Crown where Her Majesty has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or dominion.”

 

whereas the writ explicitly states that those colonies or foreign dominions of the Crown with lawfully established courts capable of issuing and executing the writ of habeas are not within the bounds of the Queen’s Bench, it gives no mention to those dominions of the Crown incapable of issuing and executing the writ.

            
In light of the potentially troublesome loopholes the Act could ascertain, the scope of the Act has since been limited in two ways. The judicial decision in Ex parte Brown[42] ruled that phrase ‘foreign dominion’ as found in the Act of 1862 does not include those territories “brought within the realm by virtue of feudal subjection rather than overseas conquest or cession”; the decision in Ex parte Sekgome[43] further added that word ‘dominion’ includes only “territorial dominions,” disregarding protectorates or areas in which the Crown “exercises dominion only in the sense of control and power.” The Sekgome decision also maintained that the issuance of the English writ of habeas will not be precluded in those areas where the local law “temporarily does not permit the exercise of habeas corpus jurisdiction,” thus further confirming the possibility of the writ to run beyond the immediate territory of the Crown courts.

            
The most recent amendment to the Act of 1862 was established in the case of Ex parte Mwenya[44] which through the extension of permitting the issuance of the writ to Southern Rhodesia, enabled the writ to run to protectorates of the Crown. The argument for and against this matter were certainly not unheard of, especially since the Act of 1862 had previously allowed for the writ to run to the protectorate. The court was therefore, forced to make a decision outside of the realm of territorial classification and instead provide an apology on the grounds of sovereignty, to which it supplied the explanation that:

 

“where the nature of control is indistinguishable in effect from that exercised in a colony or in a territory acquired by conquest, the absence of a formal assumption of sovereignty does not preclude the exercise of the prerogative upon which the writ of habeas corpus depends,[45]”

 

thereby concluding that territorial labels (such as “protectorate” in this case) do not, by themselves define the extent of control exercised in the area. One final provision of the verdict was that the applicant of the writ in such an area need not be a British subject, as the theory guarding the running of habeas corpus outside of England is due to the sovereign’s right to inquire into the legality of a restraint over the subject.[46] The court finally ruled that where formal sovereignty is not required, there should be no difficulties where subjection to the Crown is carried out de facto as opposed to de jure

(b)   The Case of Guantanamo, Cuba

The case of issuing the Great writ to detained “enemy combatants” at the U.S. naval base of Guantanamo in the

sovereign state of Cuba was tricky for a few reasons.

First and foremost was the issue of territoriality. Guantanamo Bay was considered an irregularity in terms of all the

territories governed or placed under American jurisdiction due to the fact that the status of forces agreement for the

region was unclear: according to the 1903 Land Lease Agreement, the United States recognized “the continuance of the

ultimate sovereignty of the Republic of Cuba” over the area but maintained that it would “exercise complete

jurisdiction,”[47] whereas the decision reached in the Supreme Court case of Ahrens v. Clark and through that

extension, U.S. statutory law[48], stated that the writs of habeas corpus could only be issued by the courts to subjects

“within their respective jurisdictions.”

 

Second came the issue of subjecthood. The prisoners detained at the Guantanamo Naval Base were considered

“enemy combatants,” a new category of prisoners which categorized them as neither citizens of the United States nor

prisoners of war covered under international law. Although the U.S. statutory law was clear in that nonresidential aliens,

captured and detained abroad, are not entitled to the writ of habeas corpus in a court of the United States,[49] this

ambiguous labeling of detained persons was also accompanied by the ambiguous nature of the war: technically, a “war

on terror” could have an indefinite application, spanning out to indefinite subjects in an indefinite amount of time.

 

The final consideration which made the issuance of the writ difficult was the historical scope of executive discretion which

was afforded to the American executive during a state of perceived emergency. Unlike their English counterparts,

American executives enjoyed plenary powers of discretion during wartime mostly in bona fides, with the legislative arm

usually ratifying their actions ex post facto. Given the overwhelmingly favorable record that the executive had set for

itself in the matters of habeas corpus v. executive power during a state of emergency, it was unlikely for the Great writ

trump the powers of the executive.

 

As bleak as its chances looked, a remedy for the lack of habeas corpus was eventually found through the two landmark

cases of Hamdi v. Rumsfeld[50] and Boumediene v. Bush.[51] Although Hamdi did not address all the issues

concerning the “enemy combatant” listed above, it paved the way in guaranteeing that such provisions would soon be

given consideration due to the fact that Hamdi addressed the issue that no citizen should anytime be “imprisoned or

otherwise detained by the United States except pursuant to an Act of Congress”[52] and as an effect established a

statutory basis for the issuance of habeas in what was considered extraterritorial lands, thus for the first time confirming

the extraterritorial ambit of the writ.

 

Whereas the question of territoriality was resolved through Hamdi, the issue of subjecthood was a matter of repeated

discussion in the subsequent case of Hamdan v. Rumsfeld. The issue presented in the case of Hamdan v. Rumsfeld

was the legality of the military tribunals which were setup to exercise executive discretion in handling the detainees at the

aftermath of the Hamdi decision. The Hamdan verdict ruled that “absent express statutory provision to the contrary,

information used to convict a person of a crime must be disclosed to him,”[53] thus claiming that the executive does not

reserve the right suspend due process for the cause of arbitrary detention of persons during a time of war.

 

The last issue to be resolved was that of subjecthood. The issue of subjecthood was seemingly one which could not be

deterred from the executive as stare decisis on the matter was very clear: the cases of Johnson v. Eisentrager and Ex

parte Quirin both argued that foreign nationals captured outside the sovereign territory of the United States could not be

tried in American territorial courts. As the factors regarding subjecthood in Boumediene v. Bush was figuratively

identical to that of Johnson v. Eisentrager, it was clear that a verdict could not be reached through directly addressing

the issue of subjecthood. The court did however, find a necessitating issue with regards to time, as they found that the

detainees at Guantanamo Bay, including defendant Boumediene, were interned without any due process or habeas relief

for an unreasonable duration of time. With regards to the issue of time, common law habeas states that “a person may

apply [for the writ] while in the custody of a constable, immediately upon being arrested, and need not wait until he is

incarcerated,”[54] thus bringing to light that something that is afforded instantly to a citizen should not be denied

indefinitely to a non-citizen solely under the virtue that he is not under the subjecthood of the sovereign.

 

Thus as seen in the case of Guantanamo, the Great Writ was able to rise to the occasion and further evolve once again,

this time warranted by the necessity of time as a critical factor in determining the issuance of the writ; although it can be

pointed out that the verdicts reached in the cases of Ex parte Brown, Ex parte Sekgome, and Ex parte Mwenye

would have held sufficient grounds under the English law of habeas corpus[55] to run the writ to Guantanamo, the

extraordinary writ was able to evolve past such obstacles, and once again adorning itself as a core element in the due

process of law.

 

Conclusion

Thus given the travails and the journey of the Great Writ so far, it can be contended that the writ of habeas, like the

constitution, is a living, breathing law which is constantly changing and adapting to new ideals and necessities. Being born

from the most extraordinary circumstance, it is not surprising that it has evolved into a linguistically-obfuscated form of a

zoon politikon, which endows its petitioners with the most extraordinary liberties in times of necessity. The writ of

habeas corpus has evolved into the most important, if not the most discussed debate of due process, as due process has

come to depend so heavily on its functionality due to its ability to adapt and metamorphosize to better fit necessary

situations. Whether the Great Writ, for generations to come, will remain the champion and the defender against the

Leviathan that is the state cannot be determined, but it is certain that for as long as the Great Writ remains in effect

personal liberties and freedoms will be safeguarded from the arbitrary infringements by the State.

---

[1] See Plato’s Euthyphro and Apology

[2] See Melachim A Chapter 3 for an account of Solomon

[3] Ullmann, Arthur’s Homage to King John, The English Historical Review, Vol. 94, 356

[4] Painter, The Reign of King John, 316

[5] This was done under King Henry I’s Charter of Liberties in which Henry proclaimed that the king does not supersede the law in absolute fashion.

[6] Painter, 321

[7] All translations are taken from G. R. C. Davis, Magna Carta Revised Edition, British Library, 1989

[8] Ullmann, 358

[9] Helmholz, Magna Carta and the ius commune, The University of Chicago Law Review, Vol. 66, 305

[10] Article 17 of the Great Charter: “Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.”

[11] Cohen, Some Considerations on the Origins of Habeas Corpus, Canadian Bar Review XVI, 93

[12] Sharpe, The Law of Habeas Corpus, 2

[13] Cohen, 97

[14] Sharpe, 2

[15] Ibid, 4

[16] Ibid, 5

[17] Hafetz, The Untold Story of Noncriminal Habeas Corpus, The Yale Law Journal vol. 107, 2525

[18] 74 Eng. Rep. 65 (C.P. 1587)

[19] 74 Eng. Rep. 66 (C.P. 1587)

[20] 3 St. Tr. 1

[21] 3 St. Tr. 58-59

[22] Sharpe, 11

[23] Petition of Right, Clause V

[24] 3 St. Tr. 281-282

[25] (1640) Cro. Car. 570

[26] To make his subjects comply to his arbitrary taxation schemes, Charles I set up special concilliar courts where he was able to charge the accused through self-incrimination, torture, and various other methods which went against formal criminal procedure of the day.

[27] Sharpe, 15

[28] Ibid, 18

[29] 31 Car. 2, c. 2, §IX

[30] Ibid, §X

[31] Ibid, §XI – XII

[32] Ibid, §VI

[33] Sharpe, 19

[34] Schmitt, Political Theory, 12

[35] Sharpe, 91

[36] Wyzanski, The Writ of Habeas Corpus, Annals of the American Academy of Political and Social Science, Vol. 243, 103

[37] Defense of the Realm Act, §1

[38] [1917] UKHL 1

[39] Ibid. 268

[40] Ibid, 271

[41] (1886) 32 Ch. D. 123, 131

[42] (1864) 5 B. & S. 280

[43] [1910] 2 K.B. 576 (C.A)

[44] [1960] 1 Q.B. 241

[45] Ibid, 289

[46] Ibid, 291

[47] Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations, Article 3

[48] 28 U.S.C. §2241

[49] 339 U.S.C. 763, 764

[50] 542 U.S. 507

[51] 553 U.S. __

[52] Title 18 U.S.C. §4001(a)

[53] 548 U. S. 72

[54] (1929) 52 C.C.C. 170-173

[55] This is also stated in the Amicus Brief to Hamdan v. Rumsfeld

Inspired by Kanye

In the night, I hear ‘em talk,
the coldest story ever told
Somewhere far along this road, he lost his soul to a world so heartless..
How could you be so heartless?
Oh.. How could you be so heartless?

How could you be so, cold as the winter wind when it breeze
Just remember that you talkin’ to me though
You need to watch the way you talkin’ to me
I mean after all the things that we’ve been through
I mean after all the things we got into
Hey, I know of some things that you ain’t told me
Hey, I did some things but that’s the old me
And now you wanna get me back and you gon’ show me
So you walk around like you don’t know me
You got a new friend, well I got homies
But in the end it’s still so lonely

In the night, I hear ‘em talk,
the coldest story ever told
Somewhere far along this road, he lost his soul to a world so heartless..
How could you be so heartless?
Oh.. How could you be so heartless?

How could be so Dr. Evil, you bringin’ out a side of me that I dont know..
I decided we weren’t gon’ speak so
Why we up 3 A.M. on the phone
Why is the world so mad at me?
Homie I dont know, the world’s so hot and cold
I won’t stop, I won’t mess my groove up
‘Cause I already know how this thing go
You run and tell your friends that you’re deserting me
They say that they don’t see what you see in me
You wait a couple months then you gon’ see
You’ll never find nobody better than me

In the night, I hear ‘em talk,
the coldest story ever told
Somewhere far along this road, he lost his soul to a world so heartless..
How could you be so heartless?
Oh.. How could you be so heartless?

Talkin’, talkin’, talkin’, talk
Baby let’s just knock it off
They don’t know what we been through
They don’t know ’bout me and you
So I got something new to see
And you just gon’ keep hatin’ me
And we just gon’ be enemies
I know you can’t believe
I could just leave it wrong
And you can’t make it right
I’m gon’ take off tonight
Into the night…

In the night, I hear ‘em talk,
the coldest story ever told
Somewhere far along this road, he lost his soul to a world so heartless..
How could you be so heartless?
Oh.. How could you be so heartless?

On “Military Commisions”

The military commissions as established by Military Commission Order No.1 and the Military Commissions Act of 2006 depart from international law in the aspects of procedure and purpose. Whereas the military tribunals established therein by the executive branch of the United States serve the purpose of trying “illegal enemy combatants” in simply determining guilt or innocence and operates in a way equitable for such a purpose, tribunals as interpreted and established by the International Covenant on Civil and Political Rights (henceforth abbreviated as ICCPR) and the Geneva Conventions attempt to provide its accused with a non-partisan, humanitarian trial with fairness and justice in mind and in procedure. In determining how these courts depart from one another, it is first necessary to examine how they operate and also the circumstances in which these courts are called into convention; as it is my conviction that international law should be given more recognition and credit than it has received in the course, I will focus first on the supremacy of the humanitarian commissions as established under international law, then move on to elaborate on the failures and inadequacies of the military commissions established by the executive branch of the U.S. to counteract what has now developed into a legal crisis at Guantanamo Bay.

The United Nations, as a humanitarian organization, operates under the obligation of promoting universal human rights, and thus recognizes that “the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”[1] and ensures to all individuals (at the least those associated with the signatories of the ICCPR) the said inalienable rights, without distinction to “colour (sic), sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[2] Thus the United Nations leaves no doubt as to their positioning when it comes to matters of justice; as they are solely concerned with affording to each and every individual under their influence inalienable human rights regardless of who they are and to what circumstance they may have befallen onto, the United Nations will always opt to provide an apolitical, unbiased solution toward exigent problems.

One thing to note however, is that the these inalienable human rights apply not only to those who are simply observing and inhabiting within the just social order that the United Nation endeavors to create on earth, but also to those who are violating or are committing acts that are in violation of the said human rights. Although it is a given that the guilty are naturally not afforded the same broad spectrum of rights that the innocent enjoy, the UN acknowledges the fact that wrongdoers are also entitled to human rights, and therefore ensures that “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”[3] an idea (anachronistically) echoed by the infamous Common Article 3 of the Geneva Conventions which state that “ the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples [are prohibited at all times].”[4]

The ICCPR, which can perhaps be seen as the international corollary to the American Bill of Rights, also details procedures that should be taken in assessing violators of human rights of their guilt while at the same time affording them the maximum—if not the same—amount of freedoms and rights that are bestowed upon non-law-violating individuals. A good example which illustrates the UN’s impartiality against the guilty (or at least until they are proven so) is found within the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War (henceforth abbreviated as Geneva III) which strictly mandate that captors of Prisoners of War, whom by virtue of being Prisoners of War are “guilty” for aggrandizing war against the captors’ nation, ensure that their captives are “at all times humanely treated,” prohibiting any unlawful act or the “omission of acts” which may result in “causing death or seriously endangering the health of a prisoner of war in its custody,”[5] a statement which is (anachronistically) echoed by the United Nations Convention Against Torture, (henceforth abbreviated as UNCAT) which prohibit any acts of injustice in the form of torture being performed upon any individual under any circumstances regardless of whether “a state of war or a threat of war, internal political stability or any other public emergency” is at stake.[6]

Not only does international law provide for the safety of the accused, it offers many of the same judicial rights afforded to a citizen in the United States: the guilty is afforded with an equivalent of the Miranda Rights through provisions which ensure that “the accused shall be given precise information regarding the offences of which he is accused, and given an opportunity of explaining his conduct and of defending himself”[7]; self-incrimination of the 5^th Amendment sort is banned as per provisions which maintain that “any statement which is established to have been made a result of torture shall not be invoked as evidence in any proceedings”[8]; and also within the spectrum of the 5^th Amendment, double jeopardy is also prohibited under provisions which guarantee that the guilty “shall [not] be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law.”[9]

But most importantly, international law provides the ever important right of being able to address oneself in front of a court of law. Article 14 of the ICCPR states that “all persons shall be equal before the courts and tribunals… everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” thereby granting all citizens of the humanitarian world the ability to address and redress injustices before a panel of arbiters. The same article goes on further to ensure that the accused shall have the “right to be presumed innocent until proved guilty according to law,” and also in what may seem a corollary to the landmark decision reached in the 2008 Supreme Court ruling of Boumediene v. Bush: “everyone shall be entitled… to be tried without undue delay.”

While Kelsen would be generally approving of the above provisions of international law and recognize them to be solid examples of normative law based on a Grundnorm of sorts, Schmitt and perhaps Agamben would note that while the above provisions may provide useful guidelines of conduct during peacetime, social order tends to from time to time, fall into a state of emergency (or under the mercy of the Schmittian Exception, if you will) in which said normative processes will hinder the progress of the social contract, specifically the part where the citizens let the proverbial Leviathan[10] perform its due role. International law, however, also makes sufficient provisions to satisfy this notion, specifically by allowing signatories to “take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.”[11] Furthermore, it should be noted that the provisions of the Geneva Conventions come with a kill switch which states that its signatories (or its High Contracting Parties) “shall be at liberty to denounce the present Convention,”[12] thus allowing the (hopefully) temporary halt standstill of normative law and process during states of emergency, albeit notwithstanding the fact that certain conditions need to be met before signatories can actually denounce the provisions of the conventions.

The question that needs to be addressed at this point then is quite clear: firstly that of (1) what rights and privileges are then afforded by civilians and partisans alike during a state of emergency under international law, and that of (2) with whom rests the authority during the said state of emergency.

While international law maintains that state of emergencies are inevitable and allows for the suspension of law to accommodate for such situations, it also maintains that certain humanitarian guarantees and rights cannot be compromised regardless of space and time. International law states that at no time shall the inherent right to life be deprived; the act of torture be sanctioned; any individual be held in servitude; held guilty of any criminal offence on account of any act or omission which does not constitute a criminal offence; be deprived of the right to be recognized as a person before the law; or have their freedom of thought, conscience, and religion taken away from them.[13]

On the question of whether Grundnorm or the Hyper-legitimate Sovereign rules supreme during times of exigencies, however, the answer seems to be solidly in favor of the normative legal process. As the namesake implies, international law pertains to law and conduct between and regarding nations, and even the derogation of international law provisions during states of emergency are contingent to this schema of the “law of nations”; although members of the United Nations are allowed to denounce and/or derogate certain provisions of international law, they are mandated to “immediately inform the other States [that are also signatories].”[14] States which have foregone the aforementioned derogation of provisions also may not interpret the provision as being that which allows the state to “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein,”[15] an idea also echoed in the Geneva Conventions which also states that the application of provisions “shall not affect the legal status”[16] of the conflicting parties.

Thus it can be contended that any tribunal or commission that is created under international law must follow the provisions mentioned above in settling the ever-important issue (at least for our purposes) of how to deal with a new category of individuals whom do not fall under the Geneva-provided categories of the wounded (Geneva I and II), prisoners of war (Geneva III) or civilians during time of war (Geneva IV). Although critics of the conventions will ascertain that Geneva Conventions legally do not apply to the illegal enemy combatants due to the fact that they do not identify themselves as being members of a specific nation-states and have not signed the treaties; and furthermore ascertain that they are “violating the fundamental principle that war is waged only against combatants.”[17]Although this logic is not flawed in sustaining that applications of international law can be suspended given circumstances, it does not account for the fact that the “legal status of conflicting parties” remains unchanged no matter what provisions are called into duty or used against an individual; so long as an individual is born human, the individual cannot be deprived of “his right to be recognized as a person before the law”[18] nor can this legal status be changed by any act of state, including those that changes one’s legal designation so that he/she may not be tried under the law as an individual (i.e. Military Commissions Order No. 1).

In terms of extralegal military commissions and tribunals which serve in lieu of civil courts and higher courts during wartime, international law provides both general and specific alternatives to civil and domestic courts which are designed to serve the humanitarian interests of individuals during peacetime. Insofar as general provisions are considered, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (henceforth abbreviated as Geneva IV) states the following about enemy combatants or belligerents’ rights:

“when in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communications under the present Convention,”[19]

 

thereby ascertaining that hostile military and/or enemy combatants during a state of emergency can be deprived, or is seen as being deprived of their would-be rights of conduct under international law. Although the militant’s right of conduct may be deprived by the occupying state, international law still maintains that with or without the right of conduct a human can never be found without his alienable rights as ascribed (anachronistically) by the ICCPR:

“In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention”
and thus the convention in brief maintains that no matter what exigent circumstances may arise, an individual may never be found without or deprived of his right to Habeas Corpus. Although critics of the Convention, as previously referenced to, have argued in the past that “illegal enemy combatants” do not fit under the categories listed under the conventions and therefore can be indefinitely deprived of their Geneva rights, the inherent fact that each Geneva Convention guarantees the same inherent right of trial to different categories of individuals (i.e. the wounded, civilians, prisoners of war, etc.) coupled with Geneva III’s provision which guarantees the same rights to individuals whose status is in doubt “until such time as their status has been determined by a competent tribunal,”[20] clearly shows that the right to access the writ of Habeas Corpus is intended for each and every individual, regardless of their status, under international law.

But as Socrates found out with Thrasymachus in the debate on justice, it is sometimes more beneficial for one to the sake of an argument to provide examples of what is right, as opposed to relying on ad absurdum proof to eventually reveal the right answer, and accordingly international law provides two outstanding examples of what a “model tribunal” or a “model committee” should resemble: the Human Rights Committee as detailed in Articles 28 through 45 in the ICCPR, and the Committee against Torture as detailed in articles 17 through 24 in the UNCAT.

                   Although these two model committees are structured for different purposes with the Human Rights Committee resembling a peacetime court dedicated to safeguarding individual human rights and the Committee against Torture resembling a wartime court dedicated to determining whether violations of the laws of war have actually taken place, it would be in the best interest for the purpose of determining what a model committee commissioned during states of emergency should be incorporated with to examine the procedures and protocol currently associated with the Committee against Torture (henceforth abbreviated as “the Committee.”) 

                   The UNCAT mandates that an adequate Committee be consisted of 10 “experts of high moral standing and recognized competence in the field of human rights” whom will serve as the arbiters of the issues brought before the committee, elected in a manner impartial to nationality, religion, sex, etc. by way of secret ballot.[21] The Committee’s members are also subject to a term limit, and may only remain incumbent for a period of two-years (pending re-election); all decisions made by the Committee is pending a quorum of six, and a majority of the members present.[22] The Committee also allows for the admission of “reliable information which appears to it to contain well-founded indications that [violations are] being systematically practiced in the territory of a State Party,”[23] but restricts the admission of any evidence “which is anonymous, or considers it to be an abuse of the right of submission of such communications,”[24] thereby eliminating hearsay evidence as a player in the arbitration process. Further safeguards against the admission of hearsay admission is found outside the provisions of the Committee, where the UNCAT explicitly states that all signatories must ensure that competent authorities “proceed to a prompt and impartial investigation”[25] where an “impartial investigation” is taken to mean an investigation “free of bias”, which if the word “hearsay” were to officially be registered with an antonym, would rise to the top of the list of the likely candidates.

                   As the basis of comparison has now been established on the subject of the legitimacy of military committees and tribunals, the illegitimacy of committees and tribunals can now be brought to attention. The specific committees and tribunals that are to be put under the scope of investigation, as formerly mentioned, are (1) those that were created by Military Commissions Order No. 1 and subsequently dismissed in Hamdan v. Rumsfeld and (2) the committee and tribunal setup through the Military Commissions Act of 2006, and subsequently questioned in Boumediene v. Bush.

                   Military Commissions Order No.1 was an executive order issued forth by the President of the United States in the aftermath of the 9/11 attacks which was issued to provide judicial ruling over those accused of violating the laws of war, and also to ensure that any such individual “receives a full and fair trial before a military commission.”[26] The commissions created therein do not stray away from the likes of the humanitarian courts established by the ICCPR and the Geneva Conventions in that it provides the right to counsel through appointing to the accused counsel who is to “defend the Accused zealously within the bounds of the law without regard to personal opinion as to the guilt of the Accused.”[27] The order goes further to give the accused the benefit of presumed innocent until proven guilty, reasonable doubt, self-counsel, and even double jeopardy.[28] There are however, two crucial factors which tip the committees thus formed as inadequate which both revolve around the role of the “Presiding Officer”: the first of these deals with the admission of evidence in that the criteria for the legitimacy of evidence admissible in court lies solely with the discretion of the Presiding Officer. Paragraph D of Article 6 clearly states: “evidence shall be admitted if, in the opinion of the Presiding Officer, the evidence would have probative value to a reasonable person,” thus clearly stating the eligibility of hearsay evidence. The second of these inadequacy lies with the Presiding Officer’s executive ability to “close” the court proceedings and opt to review all sentences and evidence against the accused in camera,[29] thus rendering the accused completely oblivious of the charges and evidence brought before him in court.

                   Given the above inadequacies, the commissions established under the Military Commissions Order No. 1 were ruled to be inadequate and an act in which congress “unconstitutionally suspended the writ of Habeas Corpus” in Hamdan v. Rumsfeld[30], which prompted the government to establish a new system of military commissions established under the Military Commissions Act of 2006 (henceforth abbreviated as HR-2166). It would be an understatement to say that HR-2166 is the biggest departure from the procedural rights afforded to an individual in judicial processes by international law, as HR-2166 denies to all courts “jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant[31] or is awaiting such determination.”[32] HR-2166 further encroaches upon the rights of the accused by denying them the procedural rights afforded to them under the Unified Code of Military Justice, specifically those referenced in Articles 10 (relating to speedy trial, including any rule of courts-martial relating to speedy trial,) 31 (relating to compulsory self-incrimination,) and 32 (relating to pretrial investigation.)[33] These blatant encroachments against procedural rights were deemed unconstitutional in the Supreme Court ruling of Boumediene v. Bush which claimed that HR-2166 effectively “eliminated the statutory habeas jurisdiction” and also contended that such liberal application/removal of the Habeas writ is akin to “switch[ing] the constitution on or off.”[34]

                   As apparent as the legitimacy of the humanitarian provisions of international law seems to be, the fallacy of international law lies within its identity as a system of agreements which bind its signatory nations together. Given that the very same people to whom the laws and provisions are applied to are the ones who enforce the law as well, it is hard to justify or formally accepted as legal and binding contracts, as much as the idea Lockean idea of the social contract—although it is now taken to be a natural process observed by any political society—can be taken as a legitimate and legal order or process within the state. But if the words of Hugo Krabbe can be marked to be true where the shape of modern society has come to be in that “it is not the state, but the law, that is sovereign,”[35] there may yet be hope for international law to rise as the humanitarian sovereign order that is so badly needed in current times where the state of exception is no longer an exception, but a recognized rule of society itself.

 

---

[1]International Covenant on Civil and Political Rights, preamble

[2]Ibid., Article 2, paragraph 2

[3]Ibid., Article 9, paragraph 3

[4]Geneva Conventions Common Article 3 paragraph 1d

[5]Geneva Convention Relative to the Treatment of Prisoners of War, Article 12

[6]United Nations Convention Against Torture, Article 2, paragraph 2

[7]Geneva Convention Relative to the Treatment of Prisoners of War, Article 96

[8]United Nations Convention Against Torture, Article 15

[9]International Covenant on Civil and Political Rights, Article 14

[10]In reference to Hobbes’ Leviathan, a metaphorical analogy to the government, which according to Hobbes is “but an Artificial Man; though of greater stature and strength than the [individual possessing] Natural [rights], for whose protection and defense it was intended…” (Hobbes, The Leviathan, Chapter 1)

[11]International Covenant on Civil and Political Rights, Article 4, paragraph 1

[12]Geneva I, Article 63; Geneva II, Article 62; Geneva III, Article 142; Geneva IV, Article 158

[13]International Covenant on Civil and Political Rights, Article 4, paragraph 2

[14]Ibid., Article 4, paragraph 3

[15]Ibid., Article 5

[16]Geneva Common Article 3

[17]John Yoo, UC Berkeley News “Commentary: Behind the ‘torture memos’ ”, 4 January 2005

[18]International Covenant on Civil and Political Rights, Article 16

[19]Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article 5

[20]Geneva Convention Relative to the Treatment of Prisoners of War, Article 5

[21]United Nations Convention Against Torture, Article 17

[22]Ibid., Article 18

[23]Ibid., Article 20; Although the original wording of the text pertains to the act of torture, since torture is a violation of the laws of war as established by international law, it is interpreted here to apply to “violations of the laws of war.”

[24]Ibid., Article 22

[25]Ibid., Article 12

[26]Military Commission Order No.1, Article 1

[27]Ibid., Article 4, Paragraph C

[28]Ibid., Article 5

[29]Ibid., Article 6, Paragraph D, §5

[30]548 U.S. 557 (2006)

[31]A status which is assessed by a separate tribunal known as the Combatant Status Review Tribunal, which is corollary to tribunals mentioned in Geneva III, Article 5

[32]HR-2166, §7a

[33]Ibid., §948b.

[34]553 U.S. ___ (2008)

[35]The Modern Idea of the State, trans. George H. Sabine and Walter J. Sheperd (New York and London, 1927)

barack obama is not black… not even half black.

The 2008 preseidential elections has observed both the liberal and conservative media in america capitalizing on the fact that america had democratically elected its first African-American president, as the results of the elections became self-evidently in favor of the junior senator from Illinois.

What the media has not done, however, is correctly publicize the fact that Barack Hussein OBAMA Jr. is not actually black, or even half black, for that matter. Although to their credit, the media did address the fact that OBAMA is half black by the virtue of his mother, Stanley Ann DUNHAM, being of less colorful ancestry.

Another thing that the media has failed to report, is the fact that even the senator’s father, Barack Hussein OBAMA Sr. is not purely of African (or African-American) descent, which has been the subject of some interest and research of dutch genealogists and writers at de Volkskrant, who have discovered the following fact about OBAMA’s great-grandparents:

Mr. Jelle Obbema, a Frisian, who around 1870 left Friesland for Kenya [made] a small fortune in the peppermint oil business. He was one of the founders of the famous Frisian King Peppermint company.

While in Kenya… Mr. Obbema had many love affairs. Offspring of these affairs were given the name Obama, the African version of the Frisian name Obbema. One of the sons was Sjoerd-Bark Obama, Barack Obama’s great-grandfather.

…finally, there is an Obbema Family Crest and on the crest are the words “Ja, wy kinne – Yes we can.”

 This claim by the prestigious dutch publication was further backed and echoed by independent research findings submitted to Elsevier.nl, currently the world’s largest publisher of scientific papers, which reports that:

Senator Barack Obama, vying to be the first African-American president, has been known to have white ancestors who were in possession of slaves, according to a genealogist.

(Senator Barack Obama, die de eerste zwarte president van Amerika wil worden, heeft blanke voorouders die in het bezit waren van slaven, zegt een genetisch onderzoeker.)

Having acquired this new piece of fact, and after consulting a decent amount of sources online concerning the geneology of Barack Hussein Obama Jr., the following family tree (mapping also the “purity” of his caucasian counterpart) can be hypothesized:

Fifth Generation (Great Great Grandparents)
Jelle OBBEMA   -  ?   (100% Caucasian + 100% African)

Fourth Generation (Great Grandparents)
Sjoerd-Barack OBAMA  -  Nyaoke   (50% Caucasian/African + 100% African)

Third Generation (Grandparents)
Hussein Onyango OBAMA  -  Akumu   (25% Caucasian/75% African + 100& African)

Second Generation (Parents)
Barack Hussein OBAMA Sr.  -  Stanley Ann DUNHAM   (12.5% Caucasian/87.5% African + 100% Caucasian)

First Generation
Barack Hussein OBAMA Jr.   (58.75% Caucasian/41.25% African)

Below is a picture of the man who started it all, Mr. Jelle Obbema of the King Peppermint fame:

Oh and on an unrelated note, it seems that our new president-elect is a Hammer’s fan.

manner fail

“太陽”オグシオ夢散…「殺！殺！」報復応援に萎縮
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　オグシオを殺せ−。バドミントン女子ダブルスの小椋久美子、潮田玲子組は世界ランク３位で第２シードの中国ペアと準々決勝で対戦、０−２で惨敗した。確かに対戦相手は強かった。しかし、それ以上の難敵が、観客席にいた。

　「シャーッ！　シャーッ！」。中国選手がスマッシュを打つたびに、中国人の大応援団から、敵を威嚇する獣のような声が起こった。漢字を当てると「殺！殺！」。本来はスマッシュの時のかけ声は「扣殺（コーシャー）！」がフェアな応援なのに、オグシオにむけて会場全体で一糸乱れず「殺せ！殺せ！」の大合唱をしていたのだ。

　バドミントンは中国のお家芸のひとつ。相手は確かに強かった。第１ゲームで８連続ポイント、第２ゲームで９連続ポイントを許すなど、オグシオは全く歯が立たず、途中からはまるでサンドバッグ状態に打ち込まれた。「試合で何が起きたのか全くわからなかった」（潮田）と振り返るのも、１打ごとのスタンドからの殺気がオグシオを蝕んだために違いない。

　当初は「中国の応援は気にならなかった」といっていた潮田だが帰り際に内容を聞いて「怖いです。怖いです」と何度も口にして震えていた。小椋は「最後は完全に飲まれてしまいました」と話し「この４年間バドミントンをたくさんの人たちに見てもらいたくて一生懸命やってきました。相手への対策もきちんとしてきたのに残念です」と五輪を終え、うつむいた。

　「殺せ」の引き金は、この試合よりも前に行われた女子ダブルス準々決勝。末綱・前田組が、世界ランク１位で第１シードの中国組を下す金星を挙げた。その報復として、中国人応援団が大挙してオグシオ２人に大ブーイングをしたのだ。

　アウエーの洗礼として片づけるのは簡単だが、０４年サッカーアジア杯ではジーコジャパンへ前代未聞のブーイングが中国各地で起き、大きな社会問題に。北京での決勝戦では優勝したジーコジャパンメンバーのバスが一時、中国人サポーターに取り囲まれ、警官隊とにらみ合いまで起きた。

　中国側も北京五輪にむけて応援に関して「横断幕や国旗を振り回すことを厳禁」とする教則本を出したが、どこ吹く風。会場のあちこちで中国国旗が振られ、赤いシャツを着た中国応援団があちこちに陣取っていた。そして、「殺せ！　殺せ！」である。とても五輪とは思えない光景だ。

중국의 예의없는 응원 문화…양궁장에서 한국 선수들 ‘자극’
[쿠키 스포츠] 중국의 응원문화는 예상대로 거칠었고 예의도 없었다.

여자 양궁 단체전 결승이 열린 10일 베이징 올림픽그린 양궁장. 2004 아테네대회에 이어 4년만의 재대결이었다. 4년 전 한국은 241점을 쏘면서 중국에 1점차로 승리했다.

경기장은 그야말로 작은 한국이였다. 베이징 현지 교민과 한국에서 원정 응원온 1000여명의 응원단은 ‘대∼한민국’과 ‘오!필승 코리아’를 부르면서 중국 응원단의 코를 납작하게 눌렀다. 기세에 눌린 중국도 ‘자∼유’를 외치면서 응대했지만 한국 응원단의 조직적인 응원을 감당하지 못했다.

응원 열기 뿐만 아니라 응원 예절에서도 한국의 완승이었다.

한 발, 한 발 정신을 집중해야 하는 경기인 만큼 작은 소음도 치명적이었다. 한국 응원단은 양팀 선수들이 사대에 오르면 응원을 멈추고 마음으로 한국 선수들을 응원했다. 경기 초반 조용하던 중국 응원단이 시끄러워지기 시작한 것은 점수가 벌어지기 시작한 2엔드부터였다. 한국 선수들이 활 시위를 겨눌 때 마다 호루라기 등을 불면서 자극했다. ‘조용히 하라’는 장내 방송이 여러번 나왔지만 아랑곳하지 않았다. 하지만 한국 선수들도 이미 중국의 응원 문화를 예견한 듯 여유있게 활을 꽂아넣었고 오히려 점수차를 더 벌렸다.

올림픽에 첫 출전한 주현정(26·현대모비스)은 “그 동안 미디어게임, 담력 훈련을 했다. 한국에서 중국의 응원전에 대비한 시뮬레이션 게임도 해봤기 때문에 별 부담은 없었다”고 담담하게 말했다.

양궁 대표팀은 지난달 ‘미디어 및 소음 적응’을 주제로 실전 훈련을 펼쳤다. 올림픽대표 남녀 각 3명과 대항군의 대결을 위해 양궁협회는 1000명을 수용할 수 있는 관중석, 베이징올림픽 양궁경기장 모습과 함께 응원소리, 사진기자들의 셔터 소음이 나오는 와이드 스크린을 준비했다. 현장학습을 나온 학생들과 시민들이 관중석을 채웠다.

한국 선수들을 응원하기 위해 베이징을 찾았다는 백선희(48)씨는 “정말 불쾌했다. 그래도 이길거라는 생각이 있었기 때문에 여유를 갖고 아량으로 봐줬다”고 불만을 털어놨다.

김수녕 MBC 해설위원은 “중국 사람들이 예의없게 할 줄은 알았다”면서 “한국 선수들은 자신감이 있었기 때문에 별 문제 없었을 것”이라고 말했다. 베이징=국민일보 쿠키뉴스 서윤경 기자 y27k@kmib.co.kr

ネットカフェ難民の生活を東京都が支援

4月24日17時30分配信 オーマイニュース

「ネットカフェ難民」に対して、安定的な生活や就労へのサポートをする「TOKYO　チャレンジネット」（新津伸次所長）が23日、東京都健康プラザ 「ハイジア」（新宿区歌舞伎町）内にオープンした。住居がなく、ネットカフェや漫画喫茶等で寝泊まりする労働者を対象に東京都が支援策に乗り出した。

対象となるのは、住居がないが仕事はある、いわゆるネットカフェ難民で、半年以上都内で生活している人。厚生労働省の「住居喪失不安定労働者の実態に関 する調査」では23区内には約2000人がいると推定している。同調査では、20〜30代が41.5％で、40〜50代が45.5％を占めている。また1 カ月の収入は平均10.7万円で、65.5％が非正規雇用、23.6％が失業していた。

「TOKYOチャレンジネット」では生活相談と住居相談、就労相談をする。相談者は原則として電話で相談日時を予約。訪問して相談を受ける。電話受付は月曜日から土曜日までの午前10時から深夜0時まで。相談内容に応じて、資金貸し付けを行う。

貸付額は、住居確保に必要な資金として最大40万円、生活支援として最大20万円まで。貸付は東京都社会福祉協議会が行う。貸付条件は日本国籍がある20歳以上で、都内に6カ月以上生活していること。また就労支援は厚生労働省の協力を得た。

同日はオープンとあってか、開所した直後は電話が鳴り止まなかったという。電話の多くは、40代の男性で、就労形態は非正規雇用。取材のあった14時 30分までには21件の予約が入った。すでに25日は予約で一杯となるなど、生活に困っている「ネットカフェ難民」の要望に応えている。

新津所長は

「生活に必要な初期費用を貸し付けることで、（ネットカフェ難民が）安定した生活を送ることを目指したい。何が困っているかを一緒に考えることで、地域の中で自立した生活が送れるなど問題を解決していきたい」

と話している。

pi =….? (dedicated to rei)

a friend of mine, who is a proposed education major, recently pointed out to me about some of the less finer aspects of ゆとり教育 (a governmetal attempt to provide a pressure-free learning environment for children upto the high school level), which most people now agree to be synonymous educational decline in japan. the specific example he brought up was the new curriculum guideline drafted by the ministry of education back in 2002 which quotes:

円周率としては3.14を用いるが、目的に応じて3を用いて処理できるよう配慮するalthough we take pi to be 3.14, to serve the purpose [of yutori education] we contend that it be considered as purely 3.

 

this decision by the ministry of education was highly unpopular and fueled the public’s discontent with the policies of yutori education. the most notorious dissent against this oversimplifcation was reflected by the admissions board of the [once-prestigious] state-run university of tokyo, which in its admissions exam included the question “prove that pi is greater than 3.05″ (円周率が3.05より大きいことを証明せよ)” as one of its mandatory short-answer questions in 2003.

after coming under heavy criticism over the years and as a result of what is understood as heavy governmental lobbying under former prime minister abe shinzo, the ministry of education finally included a new proposal in their  2008 Curriculum Guideline Revision, published 15th of february, to 1. increase the hours of class time spent on formal mathematics, science, computational mathematics, and english and 2. to overturn the 2002 draft which considered pi to be taught as 3, as opposed to 3.14

and i forget what the point of this blog was, but your mother is a whore.

lonely much?

茨城・8人殺傷事件　“ゲームオタク”転落のきっかけ
3月28日10時1分配信 日刊ゲンダイ

茨城県土浦市の荒川沖駅周辺で8人が殺傷された事件。犯人の金川真大（24）の素顔が徐々に明らかになってきた。
　引きこもりの殺人ゲーマーは、中学の卒業文集の寄せ書きに〈世の中の人は何ともいわば言え　我が成する事、我のみぞ知る〉と坂本竜馬の詩を書くほどの竜馬好きだった。高校では全国大会に出るほど弓道に熱中したが、部を引退した頃から、人が変わったという。
「目標を失ったようで、クラスで1人だけ就職先も決まらないまま卒業した。それから家に引きこもるようになった」（出身高校関係者）
　その後金川はアルバイトを転々とし、今年1月にコンビニ店員を辞めて間もなく文化包丁を購入。残忍な犯行に及んだ。
　心理学者の小田晋氏は、こう言う。
「引きこもりでゲームにハマる人間には、もはやバーチャルと現実の境界が曖昧になり、誰かが死ねばゲームの負けは解決するのだと、自分勝手に解釈するのです。特に熱中していたという格闘系のゲームでは相手に勝てなかったことの復讐や腹いせのために、殺意を抱くことが多くあります」
　場当たり的に見える一連の金川の行動も、「ナイフは今年1月に通販で、文化包丁は2月に人を殺すために買った」と計画的。それに、犠牲になった三浦芳一さんと山上高広さんは首をひと突きされるなど、殺意も明らかだ。
「首を狙って刺したのは、“征服欲”の表れです。無意識に殺したとは考えられません。『妹を殺そうとした』『小学校を襲うつもりだった』という供述からも、弱者に対して力があるところを誇示したかったのは明らかです」（小田晋氏＝前出）
　周囲からは、「（ゲームに）負けるとキレる。勝っても怒ってた」と恐れられていた金川。犯行を防げなかった茨城県警の責任は改めて重い。

‘히키코모리 살인’ 40代 자살
[경향신문] 2008년 04월 06일(일) 오후 10:42

ㆍ잠적후 나무에 목매 숨진채 발견

지난달 24일 서울 성북구 한 출판업체 직원 살해후 잠적한 용의자 임모씨(40)가 6일 오후 3시쯤 돈암동 북악산 등산로 부근에서 나무에 목을 매 숨진 채 발견됐다. 임씨는 아버지(88)가 운영하는 출판업체 직원 권모씨(58)를 흉기로 찔러 숨지게 한 뒤 한국판 ‘히키코모리(은둔형 외톨이)형 살인’ 사건(경향신문 4월2일자 10면 보도)으로 주목받았다. 경찰 조사 결과 임씨는 인터넷 게시판에 “(권씨를) 죽이고 나도 목을 매겠다”는 내용의 글을 올려 범행과 자살을 암시했던 것으로 드러났다. 경찰은 임씨가 범행 직후 자살한 것으로 보고 인터넷 게시 글 등을 통해 정확한 경위를 조사 중이다.

the japanese (first) article is talking about a recent event that happened in ibaraki prefecture about a hikikomori (someone who is reluctant to leave his own room or house) who murdered one and inflicted injuries on seven as a way of blowing steam after losing in a beat ‘em up fighting game. the korean (second) article is a murder-suicide that was inspired by the hikikomori murder incident where a corporate worker, who posted on an online forum that he was going to murder one of his fellow workers and then commit suicide, was found with his neck hung to a tree. 

hikikomori-ism is probably seen as signs of mental defectation here in stateside, but it seems to have become a popular, yet dismal, trend that has been brought on by the 21st century. rather than to go out and socialize as did generations before them, largely depressed student groups in asia are more prone to be found in their rooms on some online forum or playing a video game of some sort, usually alone in a self-confined room.

but if you think about it, who is to blame? is it technology in the form of computers and videogames that have opened doors for violent thoughts to arise among these people? maybe. or is it the cruel environment that have made so many students feel so devastated and unwelcome that have forced them into hiding and self-confinement? possibly. but the fact remains that there is no definite cause for hikikomori-ism, as neither technology which has contributed so much non-violent, non-resulting-in-pathetic-murder inventions that we take for granted and have found homes in our everyday life, nor society which is in most case a flourishing medium of human communications and interaction can be pointed the full finger.

maybe it’s genetic–psychological research (as superficial as its reputation is) has shown over recent years that clinical depression maybe caused by genes, rather than surroundings in some people–or maybe its a rampant, inexplicable combination of not having friends while being expose to videogames that promote violence, who knows.

but to think that loneliness can cause one to go adrfit to the point as to express that empty void by taking away another life (and plunging it into the void known as death) is a pretty awful reckoning.

if i ever become a hikikomori that plays violent games all day, feel free to report me to the police before anything goes out of hand.

On China, and the Environment

A side effect of the rapid economic growth China has been enjoying over the last decade can be attributed to the rising levels of pollution and environmental damage on all aspects of human and animal habitation within the greater Sino-Asian area. This became evident especially in Beijing, its capital, as it was preparing for its candidacy as an Olympic host city for the 2008 Olympiad games. Seven years in the future, the city of Beijing is desperately trying to save face as they prepare to host what it promised to be the biggest sporting event the world is to see thus far.

The Problems

1. Political Issues
Having only recently been emancipated from the strict communist régime that controlled every aspect of the nation, the Chinese in recent years discovered that capitalism—the one thing that they were taught to resent by its former government—is not the evil corruptor of society as their government had preached it to be. Thus started the automobile boom in China, with every citizen trying to grab a piece of the good life pie, buying and owning a car seemed the ultimate symbol of financial enlightenment: the Chinese were finally starting to realize their own “American Dream” where they would finally have the financial freedom that was denied to them for so many years
What stood in the way of the Chinese however, was the devastating national financial gap between the haves and have-nots. China’s economic growth for the past half century had depended on their industry and the economic rationales and revenues of that had been distributed amongst the people accordingly to it. This is more easily understood if one compares the nation’s workforce to a factory. The work division in a factory is usually somewhat skewed with 95% of the employees working at the assembly line and 5% being those that manage the assembly line workers. In the same way, 95% of China’s industrial working force had been the under-paid, low-priority workers doing the “dirty job”, while the remainder grew fat and rich from managing (and manipulating) the hard workers. In the past year, Forbes magazine reported that China has the greatest number of millionaires and is home to six of Asia’s top ten richest people  claim that 5% piece of the Chinese economical pie: which is not surprising for a country whose population boasts over a billion.

2. Social Ennui and Reluctance
Because of the aforementioned skew in economy, the Chinese were and are motivated even harder to rid themselves of their financial woes and achieve their rightful social status; given the opportunity, cars started selling like hot cakes and fuel emissions conjoined with carbon emissions, from the immense arsenal of factories the city of Beijing and its neighboring city Tianjin were producing, gave much more than what the eager citizens were bargaining for. It is reported that just in the last year, over 400,000 premature deaths were caused by air pollution in the city of Beijing, and over 70% of the country’s rivers have been rendered un-irrigable and unsafe for human consumption as a result of the acid rain that was produced by the pollution  (The Guardian). An even more frightening aspect to these statistics lies within the public’s ennui and ignorance to the subject. The Beijing-ers, having been fed Mao’s doctrines over the past half century, still embrace the communal idea that everything belongs to the people which sanctions public littering, and general disregarding of common ethics as social norms. It is actually very common to see little children defecating or urinating on the sidewalks under the supervision of their parents; people standing in line that seems to spread to all four cardinal directions (as opposed to the usual single file line that runs from “North” to “South”); men rolling and folding their upper garments to unsightly levels, exposing parts of the body that would usually be kept under wraps; or waiters and waitresses not being inclined to provide service and will simply ignore their customers until they are yelled at to provide service. Although this may seem appalling and in a way uncivilized to the western world, these are merely the normal aspects of life people have developed in the post-communist era, where the government which once used to regulate almost every aspect of life has let go of its grasping claws and the people, who no longer have to respond to anyone, have taken on an overly egocentric life style where all actions are solely for the benefit of those taking it. Without the right institutions to handle marketization and its effects, China’s late-developing economy paved the way for a sharp conflict of individual interest and the public good as a result of the speed and implementation of marketization throughout the nation. Thus the 1990s have given birth to a new terrifying race of consumers: the rapidly growing Sino-Asian economical populous whom spend money in the likes of Jean-Jacques Rousseau (or according to the Social Contract: “One man thinks himself the master of others, but remains more of a slave than they”) while reasoning in the likes of Karl Marx.

3. Traffic and Air Pollution
Air, in most cases, can be seen as an ethereal physical element in the sense that it neither carries a tangible property, a distinctive smell, nor can be observed by the naked eye. Pollution has a tendency in reversing this ethereal property as it often colors the transparent, adds a stench to the odorless and so forth. So naturally, the two main causes of pollution in the city of Beijing are carbon dioxide emissions from automobiles and green air emissions from industry. As of recent years, the city of Beijing was awarded the accolade of being the most heavily polluted city in the world, recording fatal amounts of nitrogen oxide levels within the atmosphere: breathing ten minutes of unfiltered “natural” in Beijing is more harmful in terms of the toxins than smoking a single unfiltered cigarette as the Beijing air reportedly contains 90mg of Sulfur Dioxide and 122mg of Nitrogen Dioxide per cubic meter  (on a related note, China also boasts the largest smoking population in the world.) The cause of this astonishing feat that Beijing has levied upon itself (ironically on time for the Olympics) is credited to the increase of automobiles. Since 2002, the number of automated vehicles roaming the streets of Beijing (be they cars, buses, motorcycles, motor scooters, etc.) have increased by a whopping two and a half million units , fueled by the automobile boom that hit China in the last decade. The biggest factor that contributes to the automobile boom uniquely in the city of Beijing is the structure of the city. Beijing, like most metropolitan areas has a concentric layout, where each area of the city is marked by overlapping circles (or “rings” as they’re called in Beijing) that become bigger in size the further it moves away from the center. In the center of that circle (or the “1st Ring”) lies the Forbidden City, which has served as Beijing’s most notorious historical monument, and biggest obstacle to the development of the city.  Synchronous with UNESCO’s dubbing of the former palace as a World Heritage Site in 1987, the 720,000 square meters of land it occupies has literally become “untouchable” and city expansion forced roads to revolve around the city center (on an interesting side note, the area occupied by the Forbidden City is so wide that there are two subway stations that occupy the western and eastern borders of the area respectively.) Consequently, as roads cannot intersect or enter this huge area of land, access from western vicinity of the city to the eastern requires for one to inconveniently drive around each ring and exit at the closest area away from the city center. This seriously cripples the flow of traffic in the city of Beijing, undermining the efficiency of public ground transportation. To compensate for this difficulty, some citizens have resorted to use of bicycle and underground transportation, but due to lack of funding and outdated technology employed by the transportation bureau of the city of Beijing, the subway in Beijing is often crowded beyond the point of movement, and tardy since it is taking in more passengers than it was originally intended for. Thus the odd combination of the automobile boom and inefficient mass transit systems, the citizens of Beijing are more likely encouraged to resort to using private transportation, which with its increase raises air pollution levels throughout the city. Carbon dioxide emission from automobiles, however, is not the sole factor of atmospheric pollution in Beijing, as the city is also a tragic victim to the seasonal phenomenon that raids its skies known as “Asian Dust” or “Yellow Sand”. This phenomenon is characterized by waves of sand particles that get caught in the atmosphere above the Gobi desert in Mongolia and travel down to East Asia through prevailing winds during late winter and spring. The passing of the sand-ridden winds usually leaves a yellow-ish sandy residue in the environment it affects, consisting of sand particles and air. In recent years this sand has mixed with toxic pollutants emitted from factories and gas emissions diffused in the air to form a yellow smog-like substance which reduces general visibility (which is ironic, if you generally take into account that air is transparent) and adds a charred flavor/fragrance to the air which now has been found to be one of the developing causes of asthma in the country.

4. Food Safety and Hygiene
The city of Beijing has experienced many questionable scares in the past year in regards to the safety and cleanliness of food. The most well-known issue even among the locals is the sale of fake or imitation food especially those sold by street vendors. Among the many conspicuous food items that have been sold on the streets for consumption such as manmade eggs, water-fed fish, and fake tofu, none have been more shocking than the news of cardboard-stuffed meat buns. Meat buns or baozi as they’re called, have enjoyed a great reputation as a timeless classic in the Chinese culinary world, with its first documented historical appearance dating back to the 3rd century. News that even the meat-filled was no longer safe for consumption sent Beijing-ers into a flurry of panic and concern at the time, as baozi was popular lunch menus for college students and company employees. Although the news was later dismissed as fraud, this opened the door for many more investigations regarding food hygiene around in the capital city which lead to recalls ranging from city-wide to international scales. One may vaguely remember the infamous toothpaste recall in July that had stalled free trade agreement talks between the United States and China, where FDA authorities had found traces of diethylene glycol, a substance harmful to the human body, was found among the contents. To the Chinese however, food poisoning is just another part of everyday life that many experience frequently, which is unsurprising given the sanitary conditions of the city. Common restaurants in Beijing barely wash the pots and pans that are used by the cooks throughout the day (one cook had even told me that he does not wash his wok at all because he believes that it adds more flavor to his dishes) and insect appendages are often served as unexpected hors d’oeuvres with the food; the tap water is barely treated and often times yields a white flake-like substance even when boiled; the city has no recycle program other the homeless who maraud the streets often seen picking out plastic and glass bottles that are usually exchanged for little money at the end of the day. I found that public concern about the general and personal hygiene is also alarmingly low, as a few of my Chinese colleagues pointed out to me that it is very unusual for someone to take daily showers.

Possible Solutions
A lot has been done and proposed by the government in the past few years to resolve these environmental issues: the Chinese government has worked closely with SINOPEC, China’s largest supplier of petroleum, to ban the use of leaded gasoline throughout the nation; restrictions of motorcycles have been set into place, prompting for the conversion of many diesel-based motorcycles to electric; the city government sanctioned the use of artificial rain to clear up sand residues in the atmosphere; tighter inspection laws have been set in place to safeguard the citizens and visitors from food poisoning and so forth. It is safe to say, however, that the problems raised in this paper are mostly products of unawareness or disinterest either of the people and should first be resolved through increased public awareness of the issues. The situation in China is comparable to that of post-war America when widespread use of pesticides rendered their image to that of “miraculous solutions” in agriculture and disease prevention. Until concerned researchers such as Rachel Carson actively engaged in spreading public awareness on the toxicity of the chemicals, the unsuspecting public regarded the now FDA-banned chemicals as a godsend, to the point that they showered their children with the products in belief that it would fend off harmful diseases. China is currently the fastest growing economy in the planet and has the most spoken language in the world; what China currently lacks is not government policies and regulations but the concern of the people about the environment and their surroundings. What the city of Beijing needs more than an efficient transportation system, cleaner air, or better public sanitary regulations, is increased awareness and concern for the environment: China needs its own Silent Spring.