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Acknowledgments
Special Thanks to Loti Ocasio Reyes, Malik Dinguswa, and Rashaad Shabazz.
Notes
1 This was written in 1991.
2 This paper was developed prior to the Gulf War. The conditions that now have emerged as a result of that war, in Iraq and Kuwait, as well as the recent turmoil in the Soviet Union, demonstrate the urgent need to address human rights protection and violations by international standards where there exists internal political conflict and belligerent military conflict.
3 The many internal armed conflicts since 1949 have highlighted the deficiency in Common Article III and illustrated the need to develop new rules for regulating internal armed conflict. From 1974 to 1977, 124 states, 50 nongovernmental organizations, and 11 national liberation movements participated in one or more of the four diplomatic conferences that produced the two protocols added 10 the Geneva Convention of the August 12, 1949. Protocol I was intended to update the law of war regulating international armed conflict between states. Protocol II was adopted to regulate internal armed conflicts. Both Protocol I and II were accepted by the Executive Branch of the U.S. up until the Reagan Administration.
4 See sections on political defenses and cases cited therein.
5 The question of self-determination will be discussed below. Research demonstrates that the particular issue of self-determination is a primary factor for most political contention within the U.S. albeit not the exclusive Doe.
6 Terrorism in the United States. Washington, D.C.: Terrorist Research and Analytical Center, U.S. Dept. of Justice, 1987.
7 Ibid., Among these are Titles 18, 26, and 42 of the United States Code.
8 Christopher H. Pyle, "Defining Terrorism," Foreign Policy 64 (1988): 63–78; Jay M. Spilane, “Terrorist and Special Status, British Experience in Northern Ireland,” Hastings International and Comparative Law Review 9, no. 3 (Spring 1986): 481–518.
9 The precedent of the recent enforcement of the UN Resolution concerning Kuwait and Iraq resulting in allies’ participation in the Gulf War must be viewed in light of U.S. interest. For example, the U.S. did breach an international obligation and became responsible internationally as it did when Congress enacted the Bird Amendment, which pursuant to the “lasting times” rule required the president to violate U.S. sanctions against Rhodesia, now Zimbabwe, and yet not be answerable for such a breach in the U.S. court or the international community.
10 Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980). https://law.justia.com/cases/federal/district-courts/FSupp/505/787/1950110/
11 The following legal principles are defined. Standing doctrine is a standard to determine who can “stand” in court and advocate for their interests. Sovereign Immunity provides a government entity the right to choose if it can be subject to criminal prosecution. Act of state doctrine is a federal legal principle that a court will not rule on the legitimacy of another sovereign government operating within its jurisdiction. Political question doctrine is where federal courts refuse to hear a case because the issue is extremely politically charged. Political offense exception is a provision that prevents extradition if the prosecution of the individual in custody is political in nature. Nuremberg defense is a plea by a defendant, particularly a combatant, should not be considered guilty if following the orders of a superior.
12 U.S. courts have held repeatedly that human rights clauses of the U.N. Charter are not self-executing and, hence, vest no enforceable rights to individuals. While the legal impact of such a declaration is deplorable, human rights lawyers and those attorneys who support and defend New Afrikan/Black Freedom Fighters and their allies should use U.S. courts to enforce to the fullest the rights guaranteed in the international instruments; they should help mobilize public and congressional support against the self-defeating declarations presented by the courts.
13 Hurst Hannum, in collaboration with Richard B. Lillich and Stephen Saltzburg, Materials on International Human Rights and U.S. Criminal Law and Procedure (Washington, DC: The Procedural Aspects of International Law Institute, 1989), 98.
14 The Paquette Habana, 175 U.S. 677 (1900). https://supreme.justia.com/cases/federal/us/175/677/
15 Frank Lawrence, “Nuremberg Principles: The Defense for Political Protesters,” Hastings Law Journal 40, no. 2 (1989): 398–399, 420.
16 Ibid.
17 Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (M.D. Ten. 1962). https://casetext.com/case/baker-v-carr
18 The criminal case involving Susan Rosenberg and Timothy C. Blunk, resulting in 56-year sentences for each, directly concerned the Nuremberg defense. Rosenberg and Blunk pursued a Nuremberg defense in nonviolent charge of possession of explosives and other identification paraphernalia. If they were successful, the jury would have had the proper law in which to decide the fate of these comrades. Surely, as in the McCann case, if the nonviolent standard was applied as a standard of the necessity defense could be applied.
19 Imari Obadele & RNA (11). United States v. James, 528 F.2d 999 at 1005, 5th Cir. 1976. Chokwe Lumumba, 741 F.2d 1214 (2d Cir. 1984). RNA (3) (State of Mich.—citation not available). R.A.M. Herman Ferguson, Criminal Anarchy—New York State Case.
20 The cases that the Nuremberg defense could apply to include the following cases: United States v. Montgomery, 722 F.2d 733; United States v. Lowe, 654 F.2d 562; United States v. May, 622 F.2d 1000; Switkev v. Lared, 316 F. Supp. 358; United States v. Valentine, 288 F. Supp. 957; United States v. Berrigan, 283 F. Supp. 336; Vermont v. McCann, No. 2857–786, D.Vt. Jan. 26, 1987, Reprinted in 44 Guild Practice 101, 1987; United States v. Susan Rosenberg & Tim Blunk; People v. Gray, N.Y. Crim. Ct. Part 10.
21 RNA (3) and RNA (11). United States v. Dickens, 695 F.2d 765. Warren Brown, et al., Nos.: 86-3065 through 3069 Commonwealth v. Africa, CP No. 78-08 U.S.A. v. Abdul Muzikir a/k/a Marquette Hall Criminal # 20633-77.
22 See Anglo-American test, French test, and Swiss test for further understanding of the criteria of POEE analysis. In Re Macklin#, 80 Cr. Mis.!, slip op. (S.D.N .Y., Aug. 13, 1989) [available on Lexis]. See also Quinn v. Robinson, 783 F.2d 776, 793-94 (9th Cr. 1986).
23 In Re Castioni, 1 Q.B. 149. [Taken from U.S .A. v. Shakur, SSS 82 Cr. 312 (CSH) and U.S.A, v. Buck, 84 Cr. 220]. E.R. v. Wilkes, 641 F,2d 504, 514.
24 See In Re Doherty, 599F. Supp. 270 (S.D.N.Y. 1984). (Trial Judge Sprizzo in his opinion when considering Doherty's defense chose to juxtapose and distinguish the Black Liberation Army situation.)
25 “Statement from the “Resistance Conspiracy Case” Defendants. (July 1988). https://freedomarchives.org/Documents/Finder/DOC511_scans/RCC/511.RCC.StatementFromDefendants.July1988.pdf (June 10, 2022).
26 United States v. Shakur, 890F.Supp. 1291 (S.D. N.Y. 1988). United States v. Morales, 464F.Supp. 325 (E. D.N.Y. 1979). People v. Bottom, Ind. No. 5694-74, (N.Y. Co.) 1971 Sentencing Memorandum, May 12, 1975; United States v. General Manuel A. Noriega Case No. 88-79 CR Hoeveler. See also: Ruchell Magee case in California; United States v. Sekou Odinga POW motion–1st Brinks Case–84 Cr. 312; United States v. Ferguson, 758F.2d 843, 846-47 n.l (2d Cir.) cert. denied 1065 Ct. 124 (1985); United States v. Ferguson, 758F.2d 843, 846 in Part I, 2nd Cir. 1983; (Brinks case). The sentencing memo of May 12, 1975, stated that the 1971 case involving Jalil Muntaquin, Nuh Washington, and Herman Bell (People v. Bottom) was a case of active war. By 1971, the U.S. COINTELPRO dirty war against the Black Liberation Movement had resulted in scores of political assassinations of political and military leadership of the movement as well as a brutal assault on the efforts to defend the movement. The assassination of four police officers claimed by the Black Liberation Army was a direct outgrowth of an uprising and resistance against oppression. The judge's sentencing statement classified these acts as an act of war and sentenced these comrades who were charged with these acts as prisoners of war.
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Mutulu Shakur
Dr. Mutulu Shakur is a New Afrikan revolutionary nationalist, anti-imperialist and doctor of acupuncture. He has been a political prisoner since 1986.