IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
AT CHICAGO
UNITED STATES OF AMERICA, ) Plaintiff, ) vs. VOICES IN THE WILDERNESS, ) OFAC Nos. IQ-162016 KELLY, ) IQ-162433 HANDELMAN, ) MULLINS, ) SACKS, ) ZITO, ) Defendants. )
DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO ALLOW TESTIMONY FROM AN INTERNATIONAL LAW EXPERT AT TRIAL TO HELP ESTABLISH AN INTERNATIONAL LAW DEFENSE, AND TO RECOGNIZE DEFENDANTS' FIRST AMENDMENT RIGHT OF CIVIL RESISTANCE UNDER INTERNATIONAL LAW.
TABLE OF CONTENTS
Summary of the Argument....................pgs. 3 - 5
Statement of the Case......................pgs. 6 - 11
Argument...................................pgs. 12 - 32
Conclusion.................................pg. 33
Endnotes...................................pgs. 34 - 40
Appendix...................................pg. A
SUMMARY OF THE ARGUMENT1
I. INTERNATIONAL LAW IS PART OF THE U.S. DOMESTIC LAW AND THEREFORE THE DEFENDANTS WERE REQUIRED TO PREVENT VIOLATIONS OF INTERNATIONAL LAW.
A. INTERNATIONAL LAW IS INCORPORATED INTO DOMESTIC U.S. LAW AS RECOGNIZED UNDER THE CONSTITUTION OF THE UNITED STATES AND THE VARIOUS TREATIES, CONVENTIONS, CUSTOMARY INTERNATIONAL RELATIONS AND MULTI-NATIONAL AGREEMENTS TO WHICH THE U.S. IS A PARTY.II. DEFENDANTS ARE PROTECTED BY THE NECESSITY DEFENSE UNDER INTERNATIONAL LAW AS THEIR ACTIONS OF VIOLATING THE IRAQI SANCTIONS REGULATIONS WERE NECESSARY TO FOCUS INTERNATIONAL AND DOMESTIC ATTENTION ON THE VIOLATIONS OF HUMAN RIGHTS BY THE UNITED STATES AND THEY HAD NO OTHER REASONABLE LEGAL ALTERNATIVE.
B. THE UNITED STATES' ACTIONS OF IMPOSING SANCTIONS AGAINST THE CIVILIAN PQPULATION OF IRAQ CONSTITUTES, AMONG OTHER VIOLATIONS QF INTERNATIONAL LAW, GENOCIDE AND A CRIME AGAINST HUMANITY AS SET FORTH UNDER THE GENOCIDE CONVENTION OF 1948 AND NUREMBERG PRINCIPLES.
C. THE DEFENDANTS WERE PRIVILEGED UNDER INTERNATIONAL LAW TO TAKE STEPS THAT ARE REASONABLY CALCULATED TO PREVENT GENOCIDE AND CRIMES AGAINST HUMANITY AS REQUIRED UNDER THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (1948).
D. IN THE ALTERNATIVE, THE DEFENDANTS HAD AN AFFIRMATIVE DUTY TO TAKE STEPS THAT ARE REASONABLY CALCULATED TO PREVENT GENOCIDE AND CRIMES AGAINST HUMANITY AS REQUIRED UNDER THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (1948).
A. THE DEFENDANTS DID NOT PLAY ANY PART IN THE CURRENT SUFFERING OF THE CIVILIAN POPULATION OF IRAQ.III. DEFENDANTS LACKED THE REQUISITE CRIMINAL MENS REA THAT THE GOVERNMENT MUST PROVE AS A PREDICATE OF CRIMINAL LIABILITY.
B. THE DEFENDANTS REASONABLY BELIEVED THAT THEIR CONDUCT WAS NECESSARY TO AVOID A GREATER PUBLIC INJURY THAN THAT WHICH MIGHT HAVE RESULTED FROM THEIR CONDUCT.
A. VIOLATIONS OF THE IRAQI SANCTIONS REGULATIONS, 31 C.F.R. PART 575, IS A SPECIFIC INTENT OFFENSE WHICH REOUIRES THAT THE GOVERNMENT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS ACTED FOR AN UNLAWFUL PURPOSE.IV. DEFENDANTS ACTIONS ARE PROTECTED UNDER THE FIRST AMENDMENT DEFENSE UNDER INTERNATIONAL LAW AS THE GOVERNMENT DOES NOT HAVE A COMPELLING INTEREST IN IMPOSING SANCTIONS ON IRAQ AND THE GOVERNMENT HAS NOT USED THE LEAST RESTRICTIVE ALTERNATIVE AVAILABLE.
B. THE DEFENDANTS VIOLATED THE IRAQI SANCTIONS REGULATIONS, 31 C.F.R. PART 575, UNDER A REASONABLE BELIEF THAT THEY WERE PURSUING THE LAWFUL PURPOSE OF PREVENTING VIOLATIONS OF BOTH INTERNATIONAL AND UNITED STATES DOMESTIC LAW, AND THEREFORE THE GOVERNMENT CANNOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS ACTED WITH THE SPECIFIC INTENT REOUIRED.
A. THE DEFENDANTS BELIEVE THEY ARE RELIGIOUSLY OBLIGATED TO EASE THE SUFFERING OF THE CIVILIAN POPULATION OF IRAQ, AND ARE THEREFORE GUARANTEED PROTECTION UNDER THE FIRST AMENDMENT.
B. THE DEFENDANTS' EXPRESSIONS OF DISENCHANTMENT WITH CURRENT DOMESTIC AND FOREIGN AFFAIRS OF THE GOVERNMENT ARE PROTECTED FROM CRIMINAL PROSECUTION, EXCEPT UNDER THE MOST COMPELLING CIRCUMSTANCES, BY THE FIRST AMENDMENT.
C. THE U.S. GOVERNMENT'S ACTIONS OF INFRINGING UPON CITIZENS' FIRST AMENDMENT RIGHTS ARE UNCONSTITUTIONAL AS THEY FAIL TO MEET STRICT SCRUTINY.
Statement of the Case
Iraq invaded Kuwait on August 2, 1990.2 The U.S. in conjunction with the United Nations Security Council imposed sanctions against Iraq on August 6, 1990.3 On January 16, 1991, U.S. troops along with a coalition of UN forces started a bombing campaign against Iraq with the stated mission of forcing the withdrawal of Iraqi troops from Kuwait.4 In a period of six weeks, U.S. air power systematically destroyed Iraq's infrastructure - including its vital life support systems, such as water and food processing plants which included such structures as baby milk powder producing plants and civilian hospitals.5 By the end of the war, "110,000 aircrafts sorties had dropped 88,500 tons of bombs on Iraq, the equivalent of seven and a half atomic bombs of the size that incinerated Hiroshima."6 In all, twenty-eight civilian hospitals, fifty-two community health centers, six-hundred-seventy-six schools, twenty-five mosques and three churches were hit.7 Along with the toll on the infrastructure, the war came at the price of 150,000 Iraqi and 148 U.S. lives.8
After achieving its stated objective of expelling Saddam Hussein from Kuwait, rather than returning the troops home, the U.S. maintains a significant military presence in the Persian Gulf and continues to routinely bomb Iraqi targets in the so called Northern and Southern "no-fly" zones. Along with military actions, the United States continues to impose debilitating sanctions9 against the Iraqi people which have had a devastating impact on the civilian population of Iraq. It is against this backdrop that Voices in the Wilderness (VITW), a Chicago based humanitarian organization and its representatives Ms. Kelly, Messrs. Handelman, Mullins, Sacks and Zito undertook several delegations to Iraq to bring the Iraqi civilian population token amounts of medical supplies so as to help alleviate the suffering of the children and families in Iraq. VITW, Kelly, Handelman, Mullins, Sacks and Zito are hereinafter referred to collectively as "defendants." The delegation members delivered "symbolic amounts of medicine, medical supplies and (in some cases) toys directly to public hospitals and, in some instances, to the Iraqi Red Crescent Society for distribution."10 On December 3, 1998, defendants received a notice from the Office of Foreign Assets Control ("OFAC"), U.S. Dept. of the Treasury informing them that they had engaged in certain prohibited transactions in violation of the Iraqi Sanctions Regulations, 31 C.F.R. Part 575 (the "Regulations"), and underlying statutes and Executive orders. See, specifically, [paragraphs] 575.204-.207 and 575.211 of the Regulations. The notice in relevant part set forth as follows:11
Violations 31 C.F.R. Part 575 ("Regulations").
Defendants have engaged in certain prohibited transactions, detailed below, relating to the embargo against Iraq in 1997. Inasmuch as no license or approval had been issued by OFAC prior to such transactions, they violated the Iraqi Sanctions Regulations,
The violations of the regulations and underlying statutes and Executive Orders for which this Notice is issued concern your and VW's exportation of donated goods, including medical supplies and toys, to Iraq absent specific prior authorization by OFAC and transactions relating to travel to Iraq and activities in Iraq. Additionally, the violations involve transactions for the purpose of, or which have the effect of, evading or avoiding, or which facilitate the evasion or avoidance of any of the prohibitions of the Regulations, as well as a conspiracy formed for the purpose of engaging in transactions prohibited by the Regulations. In this regard, VW has organized members to deliver goods to Iraq in violation of the embargo and made express statements of the organization's knowledge of its violative actions. As to Messrs. HANDELMAN and Mullins, the violations also concern the importation of goods and services of Iraqi origin. Specifically, the violations are as follows:
1. In March 1996, VW exported goods, including medical supplies, valued at approximately $18,000, to Iraq absent prior specific license or other authorization issued by OFAC;
2. In August 1996, VW exported goods, including medical supplies, valued at approximately $8,000, to Iraq absent prior specific license or other authorization issued by OFAC;
3. In November 1996, VW exported goods, including medical supplies, valued at approximately $10,000, to Iraq absent prior license or other authorization issued by OFAC;
4. In November 1997, VW exported goods, including medical supplies and toys, valued at approximately $30,000-40,000, to Iraq absent prior license or other authorization issued by OFAC;
5. On or about November 21, 1997, Mr. Handelman exported film and videotape to Iraq, through Jordan;
6. Between on or about November 21-30, 1997, Messrs. Handelman, Mullins, Sacks, and Zito, engaged in currency travel-related transactions to/from/within Iraq absent prior licence or other authorization from OFAC. These currency transactions included, but are not limited to, the purchase of food, lodging, ground transportation, and incidentals;
7. On December 3, 1997, Mr. Handelman imported goods and/or services, into the United States at Detroit, Michigan. Upon entry of the goods, the Untied States Customs Service ("USCS") seized them (District Case Nos. 98-3801-000235). The goods included an Iraqi water bottle label, an Iraqi stamp, photographic film, video and audio tapes and/or cassettes, postcards, and assorted papers;
8. On December 3, 1997, Mr. Mullins imported goods and/or services, into the United States at Detroit, Michigan. Upon entry of the goods, the USCS seized them (District case No. 98-3801-00238). The goods included a necklace, a wooden drum, audio tapes, a computer disc, notebooks, pictures, and miscellaneous papers and cards;
9. In July 1998, VW exported goods to Iraq absent prior specific license or other authorization issued by OFAC; and
10. In September 1998, VW exported goods, including medical supplies, to Iraq absent prior specific license or other authorization issued by OFAC.
Proposed Penalty
Section 206 of IEEPA, 50 U.S.C. [par] 1705, provides, in part, for a civil penalty not to exceed $10,000 per violation. section 586E of the Iraq Sanctions Act of 1990, PL.101-513, 104 Stat. 2049, provides, in part, for a civil penalty not to exceed $250,000 for each violation occurring after Nov. 5 1990*. See, Regulations [par] 575.701. Pursuant to [par] 575.702 of the Regulations, you are hereby notified that OFAC intends to issue a claim against each of you and VW for a monetary penalty in the amounts set forth below:
As to VW : $120,000, computed at $20,000 for each Counts 1-4, 9 and 10
As to Mr. Handelman: $12,000, computed at $1,000 for each of Counts 5 and 7, plus $10,000 for Count 6
As to Mr. Mullins: $11,000, computed at $1,000 for Count 8, plus $10,000 for Count 6
As to Mr. Sacks: $10,000 for Count 6
As to Mr. Zito: $10,000 for Count 6
With respect to the disposition of goods seized in the above-cited USCS District Cases from Messrs. Handelman and Mullins, we recommend that, inasmuch as goods have been involved in the violation of U.S. law by U.S. persons, such goods be forfeited to the United States in accordance with USCS procedures.
Argument
I. INTERNATIONAL LAW IS PART OF THE U.S. DOMESTIC LAW AND THEREFORE THE DEFENDANTS WERE REQUIRED TO PREVENT VIOLATIONS OF INTERNATIONAL LAW.
A. INTERNATIONAL LAW IS INCORPORATED INTO DOMESTIC U.S. LAW AS RECOGNIZED UNDER THE CONSTITUTION OF THE UNITED STATES AND THE VARIOUS TREATIES, CONVENTIONS, CUSTOMARY INTERNATIONAL RELATIONS AND MULTI-NATIONAL AGREEMENTS TO WHICH THE U.S. IS A PARTY.It is well settled that U.S. domestic law expressly incorporates customary international law. The Supreme Court in its landmark case of The Paquete Habana, stated as follows:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.175 U.S. 677, 700 (1900). Furthermore, Article VI section 2 of the Constitution provides:
This Constitution, and the laws of the United States, which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land . . . . (emphasis added).U.S. Const. Article VI section 2. In United States v. Belmont, 301 U.S. 324, 330-31 (1937) and United States vs. Pink, 315 U.S. 203, 223-229(1942), the Court held that international agreements concluded by the United States government are entitled protection under the Supremacy Clause of Article 6 of the Constitution even though they have not formally been approved under the advice and consent of the Senate. The Untied States government was a party to the international agreement that formed the Nurernberg Tribunal in 1945 which eventually established the Nuremberg Principles.12 The Nuremberg principles, set forth a comprehensive list of activities that are considered to be crimes against peace, crimes against humanity and war crimes.13 Similarly, the United States government was a party to the Genocide Convention of 1948, as the United States was instrumental in its formulation and adoption by the United Nations.14 Under the Supreme Court's interpretation of international law15 and according to a view shared by many renowned international scholars in the United States,16 the guidelines set forth under the Geneva Convention and the Nuremberg Principles are binding on all governments in the world today-including the United States, and therefore must be accorded full force in domestic American Courts.
B. THE UNITED STATES' ACTIONS OF IMPOSING SANCTIONS AGAINST THE CIVILIAN PQPULATION OF IRAQ CONSTITUTES, AMONG OTHER VIOLATIONS QF INTERNATIONAL LAW, GENOCIDE AND A CRIME AGAINST HUMANITY AS SET FORTH UNDER THE GENOCIDE CONVENTION OF 1948 AND NUREMBERG PRINCIPLES.The Genocide Convention of 1948 in provides in relevant part:
The Nuremberg Principles in relevant part set forth as follows:Article I
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
Article II
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; . . . .17
Article 6: The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:(c) CRIMES AGAINST HUMANITY: namely, murder, extermlnatlon, . . ., and other inhumane acts committed against any civilian population, before or durlng the war . . . . 18
The US-led UN sanctions have exacted such a heavy toll on the innocent civilian population of Iraq that it has undoubtedly amounted to violations of both the Genocide Convention of 1948 and the Nuremberg Principles. Mr. Ramsey Clark, former U.S. Attorney General and head of the International Action Center-a humanitarian organization opposed to the sanctions, has been to Iraq eight times19 since the imposition of sanctions and reported the following findings on November 14, 1997:
Every doctor reports that patients they could save die every day . . . in their presence because of shortages of medicine, medical supplies, and operational medical equipment. The overall death rate from monitored causes due to the sanctions has increased each year since 1989. For children under age five the increase in deaths exceeds a multiple of eight, from 7,100 in 1989 to 57,000 in 1996. Kwashiorkor, virtually unknown in 1989, has increased nearly sixty times to reach 21,000 cases [in 1996], marasmus fifty times to 192,000 cases last year. Other malnutrition-related illnesses have increased eighteen-fold . . . [and] amebic dysentery was up twenty-seven-fold to 243,000 cases. Malaria increased more than seven-fold to 32,000 cases. Typhoid fever increased eight times . . . [and] Scabies has increased from no cases in 1989 to 37,000 in 1996. Births of infants weighing under two and a half kilograms have increased more than five-fold to included 23.8 of all live birth in September 1997. The total cost in lives directly resulting from UN sanctions is now 1,500,000 deaths over the normal death rate.20This misery has only worsened in the years since. According to a UNICEF report released on August 12, 1999, in the past nine years that the sanctions have been in place, over 1.7 million people including over 750,000 children below the age of five have died as a direct result of the sanctions.21 Various UN agencies have reported that 250 people die every day as a direct result of the sanctions and that every Iraqi child suffers from some form of malnutrition.22 According to one U.N. representative in Iraq, anywhere from 2,690 per month to a more realistic 5,357 children below the age of five were dying per month as a result of malnutrition-related diseases.23 The UN Department of Humanitarian Affairs found that basic life-saving medicine and drugs are severely lacking and "50% of rural people in Iraq have no access to potable water and waste water treatment facilities have stopped functioning in most urban areas."24 Denis Halliday, U.N. Humanitarian Coordinator for Iraq resigned in protest over the continuing embargo against Iraq and stated in his resignation letter that, "We are in the process of destroying an entire country."25 He emphasized that he could not continue to take part in a policy that was deliberately causing grave and widespread suffering throughout Iraq.26 His successor Hans Von Sponeck has likewise reiterated that malnutrition in Iraq has not just reached epidemic levels but in fact has become endemic in the population.27
The United States in conjunction with the U.N. maintains that they will continue to use sanctions against Iraq until they have are "assured of Iraq's peaceful intentions . . .[and have] restored peace and stability in the region."28 Although, the United States' goals may be important they are not closely tailored, that is, the United States cannot justify causing the death of close to two million Iraqi people29 to achieve its policy objectives. The United States is guilty of killing members of the Iraqi civilian population, causing serious bodily and mental harm to the Iraqi civilians, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction and of committing inhumane acts against the civilian population of Iraq which amounts to crimes against humanity as set forth under the Genocide Convention of 1948 and the Nuremberg Principles. Further, the standards set for the removal of sanctions are so amorphous30 that it could mean that the sanctions will be place for an indefinite period of time thereby continuing to inflict even further death and misery on the Iraqi civilian population.
C. THE DEFENDANTS WERE PRIVILEGED UNDER INTERNATIONAL LAW TO TAKE STEPS THAT ARE REASONABLY CALCULATED TO PREVENT GENOCIDE AND CRIMES AGAINST HUMANITY AS REQUIRED UNDER THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (1948) AND THE NUREMBERG PRINCIPLES.Art III of the Prevention and Punishment of the Crime of Genocide (1948) provides that following acts are punishable under International Law:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.31Likewise, the Nuremberg Principles set out individual responsibility in the prevention of crimes against humanity. They state in part, "[t]he fact that the [individual] acted in pursuant to order of his Government or of a superior shall not free him from responsibility . . ."32 In the trial of German industrialists for war crimes committed by Nazi Germany during World War II, the International Military Tribunal sitting in judgment, held as follows:
International law, as such binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the government are criminal when done by a private individual. The guilt differs only in magnitude, not in quality.33International law, by its incorporation into domestic law of the United States, punishes individuals for complicity in actions that constitute genocide or crimes against humanity. Therefore, if the defendants can be held guilty of war crimes for their failure to take any actions to stop the crimes, then the defendants must have had the necessary authority, that is, they were privileged or had the necessary rights under international law, to take actions toward the prevention those crimes.
D. IN THE ALTERNATIVE, THE DEFENDANTS HAD AN AFFIRMATIVE DUTY TO TAKE STEPS THAT ARE REASONABLY CALCULATED TO PREVENT GENOCIDE AND CRIMES AGAINST HUMANITY AS REQUIRED UNDER THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (1948).If the court finds that the defendants did not hold a privilege under law to prevent the commission of genocide and crimes against humanity, then the principle of individual responsibility as set forth in the preceding section, at the very least, implies an affirmative duty upon the individuals to take steps that prevents the commission of war crimes. This view was shared by Justice Jackson of the Supreme Court, then acting as chief prosecutor in the 1945 Nuremberg War Crimes Trials.34 He stated that the "very essence of the [Nuremberg] Charter is that individuals have intentional duties which transcend the national obligations of obedience imposed by the individual state."35 The Tokyo war crimes tribunal was even more stringent in establishing an affirmative duty as is evidenced by the following statement:
[A]nyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under international law unless the person take affirmative measures to prevent the commission of the crimes.36The United States was instrumental in the establishment of tribunals to prosecute individuals for war crimes and was a party in the above mentioned cases and so the holdings of these cases bind the citizens of the United States.37 The defendants believe that the United States government is willfully and knowingly violating international law by continuing to maintain the sanctions regime. Based on prior holdings of the Supreme Court adopting the applicability of international law principles to domestic law,38 the court should find in favor of the defendants that they had an affirmative duty to take steps that were reasonably calculated to stop on going criminal activity.
II. DEFENDANTS ARE PROTECTED BY THE NECESSITY DEFENSE UNDER INTERNATIONAL LAW AS THEIR ACTIONS OF VIOLATING THE IRAQI SANCTIONS REGULATIONS WERE NECESSARY TO FOCUS INTERNATIONAL AND DOMESTIC ATTENTION ON THE VIOLATIONS OF HUMAN RIGHTS BY THE UNITED STATES AND THEY HAD NO OTHER REASONABLE LEGAL ALTERNATIVE.
The defendants' actions are also protected by the necessity defense under international law. There is no existing law that precludes the use of the necessity defense in this case.39 At least one federal circuit has recognized the right of defendants who were protesting U.S. military policies to raise the necessity defense.40 As set forth under U.S. v. Bailey, 444 U.S. 394, 411 (1980), in order to prevail under the necessity defense, defendants will have to prove that they had no "reasonable legal alternative to violating the law." See Id. The Court in Bailey went on to elaborate that in order for the necessity defense to prevail, the defendants must show that the defendants did not have a "chance both to refuse to do the criminal act and also to avoid the threatened harm." See Id. Therefore, in order for the defendants to prevail under the necessity defense, two elements will need to be satisfied: A) they did not have a chance to refuse to do the criminal act, that is, lack of blame on the part of the defendants, and B) they did not have a chance to avoid the threatened harm, that is, the conduct was necessary to prevent a greater harm.
A. THE DEFENDANTS DID NOT PLAY ANY PART IN THE CURRENT SUFFERING OF THE CIVILIAN POPULATION OF IRAQ.First, the defendants are in no way responsible for bringing about the suffering of the Iraqi civilian population. Their actions were in fact meant to alleviate the pain and suffering caused by the violations of international law. Second, as posited earlier, the defendants believed that they had a legal right if not an affirmative duty to prevent violations of customary international law. Under international law, adherence to domestic law is not a defense when charged with complicity to commit genocide, crimes against peace, crimes against humanity and other war crimes in general. The defendants had no reasonable legal alternative but to violate the sanctions. It is unreasonable to expect them to be in compliance with domestic law when it directly conflicts with international law and imposes upon them responsibility to prevent on going crimes. Therefore, the first element of the necessity defense is satisfied.
B. THE DEFENDANTS REASONABLY BELIEVED THAT THEIR CONDUCT WAS NECESSARY TO AVOID A GREATER PUBLIC INJURY THAN THAT WHICH MIGHT HAVE RESULTED FROM THEIR CONDUCT.The defendants took over a nominal supply of medicine and toys to the children of Iraq as a symbolic gesture to help alleviate their pain and suffering. Similarly, the defendants imported into the United States token memoirs of their trip to Iraq which included the likes of an Iraqi stamp, pictures and notebooks. The defendants reasonably believed that the resulting violations of the sanctions would cause negligible harm to the purported national interests of the United States when compared to the misery that is being inflicted on the civilian population of Iraq and the grave public harm resulting from inaction on their part. Therefore, the court should hold that the defendants actions were protected by the necessity defense available to them.
III. DEFENDANTS LACKED THE REQUISITE CRIMINAL MENS REA THAT THE GOVERNMENT MUST PROVE AS A PREDICATE OF CRIMINAL LIABILITY.
A. VIOLATIONS OF THE IRAQI SANCTIONS REGULATIONS, 31 C.F.R. PART 575, IS A SPECIFIC INTENT OFFENSE WHICH REQUIRES THAT THE GOVERNMENT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS ACTED FOR AN UNLAWFUL PURPOSE.Title 50 U.S.C. § 1705 imposes criminal penalties on an individual who "willfully violates, or willfully attempts to violate any license, order or regulation issued . . . and [on] any officer, director, or agent of any corporation who knowingly participates in such violation . . . ." 50 U.S.C. 1705 (1994 & Supp. 1996). Therefore, to prove criminal liability under this Act, the government will have to prove that the defendants either willfully or knowingly violated the Regulations. According to Section 14.04 of the Devitt & Blackmar Federal Jury Practice, an instruction as to the meaning of "knowingly" excludes conduct done because of "mistake or accident or other innocent conduct."41
B. THE DEFENDANTS VIOLATED THE IRAQI SANCTIONS REGULATIONS, 31 C.F.R. PART 575, UNDER A REASONABLE BELIEF THAT THEY WERE PURSUING THE LAWFUL PURPOSE OF PREVENTING VIOLATIONS OF BOTH INTERNATIONAL AND UNITED STATES DOMESTIC LAW, AND THEREFORE THE GOVERNMENT CANNOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANTS ACTED WITH THE SPECIFIC INTENT REOUIRED.The defendants violated the sanctions under their belief that they were required to take action to prevent crimes being perpetrated against the civilian population of Iraq by the government of the United States. The defendants conduct cannot be construed as "willful" because they were put in the untenable position of breaking domestic law to comply with their duties to prevent crimes under international law. As discussed earlier, they had no reasonable legal alternative as these duties to prevent the commission of crimes were also imposed upon them by domestic law. Hence, it can hardly be regarded that their conduct was a result of willful violation of the regulation. Similarly, the defendants lacked the requisite "knowingly" mens rea requirement for criminal prosecution under the statute as their actions were, at worst, taken as a result of "mistake" or "other innocent belief" that they were required to prevent genocide and other on going crimes against humanity under applicable domestic and international law.
IV. DEFENDANTS ACTIONS ARE PROTECTED UNDER THE FIRST AMENDMENT DEFENSE UNDER INTERNATIONAL LAW AS THE GOVERNMENT DOES NOT HAVE A COMPELLING INTEREST IN IMPOSING SANCTIONS ON IRAQ AND THE GOVERNMENT HAS NOT USED THE LEAST RESTRICTIVE ALTERNATIVE AVAILABLE.
The First Amendment of the Constitution provides that, "Congress shall make no law . . . prohibiting the free exercise [of religion]; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. Amend. I. The defendants argue that the government's actions of prosecuting citizens for violating the regulations is a prohibition on citizens' right to freely exercise rights guaranteed to them under the First Amendment. The Supreme Court has previously held that rights guaranteed under the First Amendment are so fundamental that the government cannot infringe on them unless the strict scrutiny standard of review is met. Massachusetts Bd of Retirement v. Murgia, 427 U.S. 307, 312 (1976). Under strict scrutiny, a governmental action will be upheld only if the action is necessary to achieve a compelling governmental purpose. Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Further, the actions the government adopts to advance the compelling purpose must be narrowly tailored to meet their goals. Wygant v. Jackson Bd. Of Educ., 476 U.S. 267, 279-80 (1986). Narrowly tailored means are also otherwise referred to as the least restrictive alternative. See Id. The defendants argue that the government has failed to show a compelling interest behind the imposition of sanctions on the civilian population of Iraq, and further that the means used by the government are not narrowly tailored. Since the government is not able to bear its burden, the penalties imposed upon the defendants are not valid and should be discarded.
A. THE DEFENDANTS BELIEVE THAT THEY ARE RELIGIOUSLY OBLIGATED TO EASE THE SUFFERING OF THE CIVILIAN POPULATION OF IRAQ, AND ARE THEREFORE GUARANTEED PROTECTION UNDER THE FIRST AMENDMENT.The defendants deny any allegation of wrongdoing as outlined in their response to OFAC's pre-penalty notice.42 The defendants contend that as citizens of the United States, they consider it their civic responsibility to speak out against injustice, and that they have a religious and moral responsibility to act on their conscience: to do justice; to feed the hungry and care for the sick. It is important to note that the defendants did not in anyway provide any medicine or other support to the government of Iraq and instead delivered medicine and toys directly to public hospitals and, in some instances, to the Iraqi Red Crescent Society for distribution.43 Further the defendants believe that the licensing regulations, which require that citizens obtain licenses prior to engaging in any transaction with Iraq, is an obstruction of their right to exercise their basic civic, moral and religious duties as guaranteed under the First Amendment of the Constitution. The defendants believe that they cannot in good conscience participate in the enforcement of an embargo which uses food and medicine as a weapon, which has lead to the deaths of close to two million innocent Iraqi people.44
The defendants further believe that the governments actions has resulted in an abridgement of their right to freedom of speech. Upon the defendants' arrival in the US, United States Custom Officials ("USCS") seized various items such as video and audio tapes, notebooks, pictures, a computer disc, and other miscellaneous papers from the defendants. The defendants had used the above mentioned articles to chronicle their experiences in Iraq and were bringing them back to the United States as evidence of the devastating effects on the civilian population of Iraq. The defendants had planned to publish the information on their website and inform the general public of the evils of imposing sanctions. By seizing those documents and tapes, the government by has therefore restricted the defendants ability to exercise their freedom of speech as guaranteed under the First Amendment.
B. THE DEFENDANTS' EXPRESSIONS OF DISENCHANTMENT WITH CURRENT DOMESTIC AND FOREIGN AFFAIRS OF THE GOVERNMENT ARE PROTECTED FROM CRIMINAL PROSECUTION, EXCEPT UNDER THE MOST COMPELLING CIRCUMSTANCES, BY THE FIRST AMENDMENT.The defendants' actions in violating the Iraqi Sanctions Regulations were partly motivated for the purpose of petitioning the government for a redress of grievances being committed against the Iraqi people by the executive branches of the federal government of the United States. The President of the United States has taken an oath to "preserve and protect and defend the constitution of the United States" as required by Article 2, Section 1, Clause 7 of the Constitution. Also, Article 2, Section 3 of the Constitution requires that the President "take care that the laws [of the United States] be faithfully executed." As illustrated earlier, domestic U.S. law is informed by customary international law. Hence, the President has a duty to protect, preserve and administer laws that prevent genocide and crimes against humanity. The defendants believe that the President and the executive branch of the federal government have failed in their responsibilities to execute the laws faithfully, and thus the defendants are entitled to petition the government for a redress of their grievances as guaranteed under the First Amendment. Therefore, the defendants contend that imposition of penalties against citizens who have violated the sanctions as an expression of their discontentment against the government is a violation of their First Amendment rights.
C. THE GOVERNMENT'S ACTIONS OF INFRINGING UPON CITIZENS' FIRST AMENDMENT RIGHTS ARE UNCONSTITUTIONAL AS IHEY FAIL TO MEET STRICT SCRUTINY.The government's actions fail to meet the strict scrutiny requirement. The United States' imposition of sanctions on Iraq are not justified by a compelling governmental interest. The United States has accomplished its stated objective for the military engagement in the Persian Gulf-Saddam Hussein's expulsion from Kuwait. Iraq does not pose a national security threat to the United States, except under a convoluted theory which, that if believed could justify sending U.S. troops to any nation in the world under the pretext of national security. The lives of our men and women in the armed services are too precious for an abuse of such a sort by the President and the executive branch of the government.
In the event that the court finds that the imposition of sanctions is justified by a national security interest, the defendants should still prevail as the government's action are not narrowly tailored. Imposing sanctions against the innocent civilian population of Iraq for crimes its government or head of state has committed is irresponsible and appalling to a civilized society. Nearly two million people have died as a direct result of the sanctions.45 The sanctions hurt the weakest segment of the population-the elderly and the children-the most.46 Inflicting starvation, disease and death upon the entire civilian population of Iraq in hopes that their head of state will comply with United States foreign policy for that country is illogical, inhumane and grossly over inclusive in its breadth, and hence not narrowly tailored to further the government's interest.
Conclusion
The defendants pray that this court will allow them to produce testimony of an international expert in order to inform the court on how international law is incorporated into domestic United States law. Through the use of such evidence the defendants will prove that their actions were justified as they had a right, if not duty to prevent violations of international law. Further the defendants' actions of violating the regulations are protected under the necessity and First Amendment defense available to them under international law. The defendants had no legal alternative to violating the law and the government does not have a compelling interest in imposing the sanctions, and further, it has not used narrowly tailored means to achieve its objectives.
Endnotes
1. Author's Note: All the defenses raised in this memorandum were devised as a result of discussions with Professor Boyle, International Law Expert, University of Illinois College of Law, and by careful analysis of the literature found in Professor Boyle's book entitled: DEFENDING CIVIL RESISTANCE UNDER INTERNATIONAL LAW (Special Edition for Pro Se Protestors published by the Center for Energy Research 1988, reprinted by permission of Transnational Publishers Inc (1987)).
2. See Ramsey Clark, Fire & Ice, in CHALLENGE TO GENOCIDE: LET IRAQ LIVE 3, 8 (International Action Center, 1998).
3. See id.
4. See id.
5. See id. at 12.
6. Id. at 10.
7. See Clark at 10-13.
8. See id. at 20.
9. See 31 C.F.R. Part 575, under authority of the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq.
10. See U.S. Humanitarian Organization Prosecuted forDelivering Medicine and Toys to Iraq, News Release- Washington, DC, December 30, 1998 (visited Jan. 30, 2000) <http://www.nonviolence.org/vitw>.
11. See "Prepenalty Notice " from the Office of Foreign Assets Control, U.S. Dept. of the Treasury (visited Mar. 10, 2000) <http://www.nonviolence.org/vitw>.
12. See FRANCIS A. BOYLE, DEFENDING CIVIL RESISTANCE UNDER INTERNATIONAL LAW, 122 (Center for Energy Research 1988, reprinted by permission of Transnational Publishers Inc.) (1987) (n.17: "Principles of the Nuremberg Tribunal, reprinted in The Laws of Armed Conflict 833-36 (D. Schindler & J. Toman eds. 1981)").
13. See id. at 123.
14. See id. at 125 (n.20: "Genocide Convention of 1948, 78 U.N.T.S. 277 (signed by the U.S. on Dec. 11, 1948), reprinted in The Laws of Armed Conflict 171-86 (D. Schindler & J. Toman eds. 1981)").
15. See United States v. Belmont, 301 U.S. 324, 330-31 (1937); United States vs. Pink, 315 U.S. 203, 223-229 (1942).
16. See BOYLE, supra note 11, at 123, 125.
17. See BOYLE, supra note 11, at 227.
18. See BOYLE, supra note 11, at 231.
19. See Clark, supra note 1, at 24.
20. See Clark, supra note 1, at 24-5.
21. See Appendix A (International Action Center Statement on the UNICEF report released Thursday, August 12, 1999 on mortality rates for children in Iraq).
22. See id.
23. See Larry Johnson, A trip to Baghdad reveals a nation sagging under the weight of sanctions, (Special Report entitled-Life and Death in Iraq), Seattle Post- Intelligencer, May 11, 1999, at 2.
24. See Myths and Realities regarding Iraq, the United States, and economic sanctions (visited Mar. 11, 2000) <http://www.nonviolence.org/vitw>.
25. See Denis Halliday's Resignation Statement (visited Mar. 11, 2000) <http://www.nonviolence.org/vitw>.
26. See id.
27. See Johnson, supra note 22.
28. See Clark, supra note 1, at 34.
29. See supra text accompanying note 20.
30. See Clark, supra note 1, at 34.
31. See BOYLE, supra note 11, at 227.
32. See BOYLE, supra note 11, at 231.
33. See BOYLE, supra note 11, at 237 (quoting: "The Flick Case," VI Trials of War Criminals (1952) reprinted in part in II Friedmann, The Law of War: A Documentary History 1281, New York, Random House, 1980).
34. See BOYLE, supra note 11, at 237 (quoting: 6 F.R.D. 69, 110 (1946); 22 Trials, supra, 411, 466 (1948)).
35. See id.
36. See id. (Tokyo War Crimes Trial Decision, re-printed in L. Friedman, II the Law of War: A Documentary History 1283 (1972)).
37. See BOYLE, supra note 11, at 122-26.
38. See supra text accompanying note 14.
39. See BOYLE, supra note 11, at 358.
40. See id. (US. v. May, 662 F.2d 1000 (9th Cir. 1980)).
41. See BOYLE, supra note 11, at 111.
42. See VITW Response to OFAC - December 30, 1998 (visited Mar. 13, 2000) <http://www.nonviolence.org/vitw>.
43. See supra note 9.
44. See supra text accompanying note 20.
45. See id.
46. See Clark, supra note 1, at 31.
Legal Brief provided by Professor Francis Boyle (undated)
[Scanned and OCR'd from original - AKF 7/12/02.]