Boyce v. Barbados: Victory at Interamerican Court of Human Rights

I couldn't find the recent judgment of the InterAmerican Court of Human Rights in Boyce v. Barbados on the official website, but Saul Lehrfreund and Parvais Jabbar, the London-based solicitors of the Death Penalty Project who took the case, have sent it along: http://www.mediafire.com/?5fe7mww64mb. The Court found that the mandatory death sentence imposed on all those convicted of murder in Barbados violates the right to life as it is arbitrary and fails to limit the application of the death penalty to the most serious crimes. The Court also held that the prison conditions endured by the applicants constituted cruel, inhuman and degrading treatment. Keir Starmer QC of Doughty Street Chambers, who argued the case earlier this year, said: 'This case has silenced the whispering of some states around the world which, in their attempt to cling onto the cruel punishment of the mandatory death sentence, suggest that their legal systems are different and fairer than others. Barbados has repeatedly emphasised its commitment to international law. Now is the time to demonstrate that commitment by abolishing the mandatory death penalty as required by this landmark judgment,'

Great Day in General Assembly: Death Penalty Moratorium Passes by 104 Votes

Yesterday, the United Nations General Assembly adopted the death penalty moratorium resolution by a vote of 104 in favour, 54 against and 29 abstentions. This is a slight increase from the 99 who voted in favour when the resolution was adopted by the Third Committee of the General Assembly last month. Adoption of the resolution was praised by the new Secretary-General, who had stumbled at the beginning of the year with some rather ignorant remarks about the Saddam Hussein resolution. Now he’s got it right, and so does a comfortable majority of the General Assembly. The text of the resolution: http://daccessdds.un.org/doc/UNDOC/LTD/N07/577/06/PDF/N0757706.pdf?OpenElement. For the press release, indicating elements of the debate: http://www.un.org/News/Press/docs/2007/ga10678.doc.htm.

Failure to Prosecute Crimes Against Palestinian Civilians

Israeli Defence Force statistics, provided to human rights NGO Yesh Din at the organization's demand, on results of Military Police investigations of criminal offenses in which IDF soldiers harmed Palestinians and their property since the beginning of the second Intifada in September 2000 until June 2007, show that some 90 percent of these investigation files were closed with no indictment. Over nearly seven years 1,091 criminal investigations were opened following offenses which include killing and injury of civilians, abuse, damages to property and others. These investigations resulted in 118 indictments only, of which 101 led to convictions of the accused. The data also show that out of the 239 investigations on killing and injury of Palestinian civilians not involved in the hostilities, only 16 resulted in convictions: less than 7 percent of the investigations on this matter.
More detailed information appears on the five-page data sheet prepared by Yesh Din: http://www.yesh-din.org/site/index.php?page=index&lang=en&id
Thanks for this to Lior Yavne of Yesh Din, who is a regular reader of the blog.

Human Rights and Humanitarian Law

Much recent attention has been devoted to the relationship between human rights law and what is variously called the law of war, the law of armed conflict and international humanitarian law. Traditionally, international humanitarian law declines taking a position on the lawfulness of any given war, so as to better address the behaviour of combatants on all sides. Many now suggest that human rights law adopt the same approach. Some recent examples are the refusal of the big human rights NGOs, Human Rights Watch and Amnesty International, to take a position on the definition of the crime of aggression in the Statute of the International Criminal Court (see, e.g., http://www.hrw.org/backgrounder/ij/asp1107/).
My opinion is that this is all wrong, because it entirely overlooks the right to peace. One of the four freedoms first proclaimed by President Roosevelt and affirmed in the preamble of the Universal Declaration of Human Rights is 'freedom from fear'. Admittedly, the right to peace has been much neglected. But we can see manifestations of it in, for example, the obligation to prohibit propaganda for war set out in article 20 of the International Covenant on Civil and Political Rights. Aggressive war is a human rights issue.
My views on this are developed in a recent article, ‘Lex specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of jus ad bellum’, (2007) 40 Israel Law Review 592-613: http://www.mediafire.com/?fypn5om43vo

Local Relevance of Humanitarian Law: Call for Papers

Dr Shane Darcy, one of our graduates and now a lecturer at the Transitional Justice Institute of the University of Ulster at Derry, is organising a panel on the local relevance of international humanitarian law for an interdisciplinary conference to be held in Antwerp, 16-18 October 2008, on the occasion of the 60th anniversary of the Universal Declaration of Human Rights
Shane says that in times of armed conflict, international humanitarian law may play a more significant role than human rights in the protection of the human person. There is considerable scope for its use at the local level, particularly given the increased focus on the prosecution of violations of such laws by the various international criminal tribunals. The contribution of each workshop participant should focus on a specific country or situation of armed conflict to which international humanitarian law applies; illustrative case studies include Colombia, India, Sri Lanka, Iraq (UK & US), Israel/Palestine, Chechnya, and Northern Ireland.
Submit abstracts to Shane at: sd.darcy@ulster.ac.uk. Once an abstract is accepted, a full draft paper (max. 10.000 words footnotes incl.) should be submitted by Monday September 1 2008.
For further details about the conference please visit: http://www.ucsia.org/

New Jersey to Abolish Death Penalty

Yesterday, legislators in New Jersey vote to abolish capital punishment. The governor has said he will sign the legislation within a week. New Jersey becomes the first jurisdiction in the United States to abolish capital punishment in more than forty years. This is further evidence of the international trend, evidence of a trend within the United States, and another small but meaningful step towards universal abolition: http://news.yahoo.com/s/ap/20071213/ap_on_re_us/death_penalty_new_jersey
Thanks to Megan Fairlie for sending this one.

Louise Arbour Praises Rwanda's Abolition of Death Penalty in Speech to Human Rights Council

Louise Arbour, the United Nations High Commissioner for Human Rights, has lauded the abolition of the death penalty in Rwanda. Along with Gabon, which also recently decided to ban the practice, Rwanda joins 'the vast majority of UN Member States that have already done so', she said. See: http://www.un.org/apps/news/story.asp?NewsID=25015&Cr=rights&Cr1=council. For her full speech to the Human Rights Council, see: http://www.unhchr.ch/huricane/huricane.nsf/view01/6BA53A3EA846442BC12573B0004F8D5D?opendocument
Thanks to Maria Varaki for drawing this to my attention

House of Lords Opens Door to Accountability of UK for Abuses in Iraq

The House of Lords has held, in a case concerning an individual detained by British forces in Basra, that the UK is responsible for such detention, and not the UN, as the British government had argued.
The House of Lords also considered the UK argument whereby when the Security Council acts under Chapter VII of the UN Charter and authorises an action through the phrase 'all necessary means', that this automatically means that a state can override all pre-existing international obligations that conflict with that authorisation. The House of Lords overturned Lord Justice Brooke of the Court of Appeal on this point.
While accepting that in some circumstances a Chapter VII authorisation can override human rights obligations, the Law Lords emphasise the very limited nature of this authorisation. Lord Bingham held that the UK 'must ensure that the detainee’s rights under Article 5 [European Convention on Human Rights, which protects the right not to be held without due process] are not infringed to any greater extent than is inherent in such detention' (para 39). Baroness Hale went even further in emphasising that Mr Al-Jedda’s right not to be detained without due process had been 'qualified but not displaced' and that: 'The right is qualified only to the extent required or authorised by the resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences' (para 126).
Whether or not Mr Al-Jedda can continue to be held without trial depends now on a further hearing to take place in the High Court early next year. Lawyers for Al-Jedda will challenge the intelligence that forms the basis of the decision of the UK Government that he continues to pose such a threat to peace and security in Iraq that it is absolutely necessary that he be detained there, rather than brought back to the UK and dealt with here.
In late August 2007, Al-Jedda’s lawyers in a different action obtained an order from the Court of Appeal that he could not be released or transferred from the jurisdiction of the UK Government without proper written notice to his lawyers. This would allow time for an urgent application to protect him from the risk of torture if he is handed over to the Iraqi authorities.
The ruling is available at: http://www.mediafire.com/?6ndcz4jgctl
Thanks to Andrea Breslin, a doctoral student at the Irish Centre for Human Rights, who is currently completing an internship with Phil Shiner and Public Interest Solicitors, who act for Al-Jedda.

ICTY Judgment on 'Terror'

The International Criminal Tribunal for the Former Yugoslavia has a very interesting discussion of 'terror' as a violation of the laws or customs of war in the Trial Chamber judgment in Dragomir Milosevic, issued earlier today: http://www.un.org/icty/milosevic-d/trialc/judgement/judg071212e.pdf.

It constitutes an interesting development on the only other discussion of this issue, in the Galic Trial Judgment 'terror' was defined merely as 'extreme fear'. Both cases concerned the siege of Sarajevo. It appears that the Trial Chamber did not pick up on the call by the Appeals Chamber, in the recent 'Media Trial' (see yesterday's blog) to apply strict construction in criminal law.

Thanks to Joseph Powderly for this.

Extraordinary Rendition and Ireland's Human Rights Obligations

The Irish Human Rights Commission has just released its report on extraordinary rendition and Ireland's human rights obligations was published yesterday. It includes material obtained by the Commission from the Department of Foreign Affairs on diplomatic assurances provided by the United States. See: http://www.ihrc.ie/home/default.asp
Thanks for this to Aisling O'Sullivan.

French law journals on line

Our university library now has a number of French-language journals in law, the humanities and the social sciences on line. These can be accessed through the NUI Galway library website. Among them,
Revue internationale de droit économique
Revue internationale de droit pénal
Revue sur le droit et la politique de la concurrence

Saoranach Eireannach

On 10 December I swore an oath of loyalty to the Irish State before Judge Mary Fahy of the Galway District Court, a condition of becoming a Saoranach Eireannach (Irish citizen, which literally translates as Irish freeman) . That evening, many of my PhD students as well as friends and colleagues joined me at Neachtain's pub in the centre of Galway for a little celebration.



Left photo: John Waddell (l), Morwena Denis, Sally Coyle, Philip Fogarty.
Right photo: Katrina Mansson, Katrin Kinzelbach, Sean Goggin, Kjell Anderson and Niamh Hayes.


Left photo: Jane O'Leary with fiddler.
Right photo: Aisling O'Sullivan (l), Michelle Farrell and Maria Varaki.


Left photo: Tom Kenny(l) and John Waddell.
Right photo: Tom O'Malley (l), Morwena Denis and myself.


Left photo: Tom Kenny (l), myself and John Waddell
Right photo: Jane Conroy (l), John Hinde and Pat O'Leary


Kathie Hinde (l), Jane Conroy and John Hinde. And in the background, Katrina Mansson, Katrin Kinzelbach and Sean Goggin.

Appeals Judgment in the 'Media Case'

The Appeals Chamber of the International Criminal Tribunal for Rwanda issued its judgment in the 'Media Case' last week. We discussed this in our regular doctoral seminar in Galway yesterday evening. The judgment of the Appeals Chamber is only available in French right now, although an English-language summary appears on the website: http://69.94.11.53/default.htm.
The Trial Chamber judgment, whose conclusions are seriously attacked in the latest ruling, had been heralded as a new development in the legal regulation of hate speech. The trial deals with personalities involved in the RTLM radio station and the journal Kangura.
Here are a few initial observations that emerged from our discussion:
1. Strict construction. Both ad hoc tribunals have been characterised by an interpretative approach that was large and liberal, tending to expand the definition of crimes so as to fulfil the purpose of the tribunals rather than interpretation that was strict and literal. But now, for the first time apparently, the Appeals Chamber professes its devotion to the principle of strict construction of criminal law.
2. The judgment strikes down many of the charges that had been upheld by the Trial Chamber. In effect, it knocks out the convictions respecting events prior to 6 April 1994, when the genocidal massacre began. With respect to pre-1994 acts, the argument is jurisdictional: the Tribunal cannot prosecute crimes committed prior to 1994, even 'continuous crimes'. Judge Shahabbuddeen dissents on this point. But as for events between 1 January 1994 and 6 April 1994, the Chamber simply considers these do not add up to incitement to genocide. This may effect a significant change in the narrative of the Rwandan genocide.
3. One of the big innovations of the Trial Chamber was to treat hate propaganda, even when it falls short of incitement to genocide, as the crime against humanity of persecution. The Appeals Chamber upholds this as a general proposition. Judge Meron writes a strong dissent, arguing that expanding the prosecution of hate speech threatens freedom of expression.

No Death Penalty for Drug Crimes

Yesterday, the International Harm Reduction Association published a report entitled 'The Death Penalty for Drug Offences - A Violation of International Human Rights Law': http://www.ihra.net/uploads/downloads/NewsItems/DeathPenaltyforDrugOffences.pdf .

The author, Rick Lines, is a graduate of our LLM programme and is currently enrolled in PhD studies at the Irish Centre for Human Rights.

The report examines the use of the death penalty for drug offences and considers whether drug crimes constitute 'most serious crimes' within the context of article 6(2) of the International Covenant on Civil and Political Rights. The report argues that drug crimes do not constitute 'most serious crimes' and concludes that the execution of drug offenders violates international human rights law.

Three successful vivas

Three of our doctoral students successfully defended their PhD theses over the past few days. On 8 December, Hitomi Takemura defended her thesis on ‘The International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders', before a jury composed of Prof. Kevin Boyle, Dr. Vinodh Jaichand and myself. A real innovation was the fact that the defence was held at the Irish Cultural Centre, in Paris (see photo). We had all attended the conference in Paris the previous day on 'Diplomacy and Human Rights' co-sponsored by the Irish Cultural Centre, the Irish Centre for Human Rights, and the Centre for Human Rights and Humanitarian Law of the Université de Paris II.
The following day, on 9 December, this time in Galway, Carlo Tiribelli successfully defended his thesis on ‘Surrender, Not Extradition: Transferring Offenders in a New International Context’, before a jury composed of Prof. Alexander Knoops, Dr. Ray Murphy and myself. And today, Noelle Higgins defended her thesis on ‘Regulating the Use of Force in Wars of National Liberation, the Need for a New Regime: A Study of the South Moluccas and Aceh', before Prof. Nigel White, Dr. Ray Murphy and myself.
Congratulations to the three of you. All three have busy careers in the area of international human rights law, international humanitarian law and international criminal law. Noelle and Hitomi are university lecturers, and Carlo is a practising lawyer in Brussels.

Socio-Legal Studies Association Annual Conference

Two of our PhD students, Eadaoin O'Brien and Michelle Farrell, are organising a stream at the Socio-Legal Studies Association Annual Conference, 18-20 March 2008. Sponsored by the Irish Centre for Human Rights, the theme is 'victims in international law'.
The stream particularly welomes papers with an interdisciplinary approachto the understanding of victims within international law. In light of the acknowledged role of the victim in proceedings before theInternational Criminal Court, and considering the active participation of indigenous peoples in drafting the Declaration on the Rights of Indigenous Peoples, this stream seeks to further explore the emerging centrality ofvictims in all facets of the international legal process.
The stream also encourages critical scholarship on the conceptualisationof the 'victim' in international law.
Themes addressing the following issues are particulary welcomed:
The Role of the Victim in International Criminal Justice
The Role of the Victim in developing International Law
Does the law speak to Victims?
Issues pertaining to the deceased in International Law
Gross Violations of International Law and Justice

The abstract should not exceed 400 words and the deadline for abstract submission is 5pm, 25 January 2008.

Contact and Abstract submissions to:
Michelle Farrell - m.farrell2@nuigalway.ie
Eadaoin O' Brien - eadaoin_o_brien@yahoo.co.uk

Full details on all aspects of the conference can be found at http://www.law.manchester.ac.uk/aboutus/news/events/SLSA2008/index.html

Swansong of Carla del Ponte

Carla del Ponte finishes her term as Prosecutor of the International Criminal Tribunal for the former Yugoslavia at the end of 2007. She has been appointed the Ambassador to Argentina of Switzerland. Her successor is Serge Brammertz of Belgium, who had previously been elected one of the Deputy Prosecutors of the International Criminal Court, but has since been seconded to the Special Tribunal for Lebanon. Del Ponte took over from Louise Arbour in September 1999, and her mandate was renewed (but not for the International Criminal Tribunal for Rwanda) in September 2003. Ed Vulliamy of The Observer published an interview with her yesterday: http://www.guardian.co.uk/print/0,,331427677-103645,00.html. Also of interest is a new book by Florence Hartmann, entitled Paix et Châtiment. Hartmann was del Ponte's press attache, and much of the book seems to be about the Tribunal through the eyes of del Ponte. Hartmann is very bitter about many aspects of the Tribunal, including the reluctance of many members of the prosecution staff to charge Milosevic with genocide.
The Observer also has a lengthy account of efforts to apprehend one of the outstanding fugitives of the tribunal, Radovan Karadzic: http://www.guardian.co.uk/print/0,,331427513-103645,00.html; http://www.guardian.co.uk/print/0,,331427512-103645,00.html ; http://www.guardian.co.uk/print/0,,331427515-103645,00.html; http://www.guardian.co.uk/print/0,,331427680-103645,00.html
Thanks to Niamh Hayes.