Saturday, 29 September 2007

Defense of superior orders

Article 33 of the Rome Statute of the International Criminal Court says that following orders is no defense when the order is 'manifestly unlawful'. When we teach this, we generally look for hypothetical examples, or cases drawn from the movies. The war in Iraq has given us a real case. Soldier Evan Vela, a US sniper, told a court on Thursday of how an unarmed Iraqi stumbled upon a sniper's den. He was ordered by his commanding officer to kill the Iraqi. It looks like a pretty classic case of a 'manifestly unlawful' order. There are several news reports. This one was in the International Herald Tribune:

Is this a war crime?

Evidence has emerged of what the US military calls a 'baiting programme', by which traps are set for 'insurgents'. When they take the bait, snipers lie in wait and kill them. This was revealed in recent litigation within the US, as defense lawyers tried to respond to murder charges which hae been laid against army snipers. The soldiers are accused of having killed unarmed Iraqis. The details are reported in last week's New York Times, Paul von Zielbauer, 'Snipers Killed Iarqis Who Took "Bait", Soldiers Tesitfy', 25 September 2007, NYT, p. A13:

Grotian Moment

Last year, Michael Scharf developed a very successful blog on the Saddam Hussein trial. He has now reconfigured it into a more general blog in international criminal justice. It was launched yesterday.

Defense Counsel at Khmer Rouge Tribunal

Rupert Skilbank, who is coordinating the defense counsel at the Extraordinary Chambers of the Courts of Cambodia as Principal Defender of the Defense Support Unit, has put out a call for defense counsel and for 'Legal consultants'. A legal consultant need not qualify for the bar, but requires five years of experience in the area of international criminal law. I have not queried Rupert on this, but post-graduate study in international criminal law, coupled with relevant internships, might respond to this requirement. This looks like a great opportunity for someone anxious to embark upon a career in international criminal law. Rupert says you can check out the website (, or simply write him directly:

Thursday, 27 September 2007

Miskolc Journal of International Law

A new issue of the Miskolc Journal of International Law is available at It includes the following:
the following articles:
Veronika Bílková: Victims of War and Their Right to Reparation for Violations of International Humanitarian Law
Enver Hasani: The Evolution of the Succession Process in Former Yugoslavia
Victor Muraviov: The Acquis Communautaire as a Basis for the Community Legal Order
Csaba Pakozdy: The power of state versus freedom of assembly

Please note that Peter Kovacs, who is editor in chief of the Journal, has also published in that number his own personal tribute to Alex Kiss, who passed away a few months ago. Professor Kiss, who was of Hungarian origin, lived and worked in Strasbourg where he was closely associated with the International Institute for Human Rights over the years. He and I worked together recently as co-editors of the Encyclopedia of Genocide and Crimes Against Humanity, whose overall editor was Dinah Shelton. We will miss him dearly.

Monday, 24 September 2007

Raphael Lemkin, Originator of the term 'genocide'

Raphael Lemkin first used the word 'genocide' in his book Axis Rule in Occupied Europe, published in 1944. He was one of three experts who prepared the first draft of the Genocide Convention at the request of the United Nations Secretariat. Lemkin died in 1959, apparently in poverty.

Today is a beautiful early autumn day in New York City. This morning, Don Ferencz and I drove out to Mount Hebron Cemetery in Queens, and paid hommage at Lemkin's grave. Don said an old Jewish prayer that was inspired by an early genocide, when Crusaders wiped out an Ashkenazi community. We both placed small stones on the grave, following the Jewish tradition.
The tombstone is of modest proportions, and sits among several others bearing the name Lemkin, as this is a family plot. There is some writing in Hebrew at the top. Don thinks it is Lemkin's name. The rest of the inscription reads: 'Beloved Brother and Uncle. Dr. Raphael Lemkin. 1900-1959. Father of the Genocide Convention.'

The Cemetery is about mid-way between New York's two airports. From Lemkin's grave you can see the site of the 1961 World's Fair.


My students all know about my obsession with proper use of the apostrophe, a result, I think, of its terrible misuse by so many (not all) of them. I enjoyed reading William Safire in yesterday's New York Times magazine (p. 18) on the subject (he too is OCD on this):


“Yesterday, I picked up a pamphlet that proclaimed ‘Starbucks commitment to social responsibility,’ ” writes Prof. Henry Richardson of Georgetown University. “That’s all very nice, but what about their commitment to the apostrophe?”
In the advertising claim “Starbucks commitment,” the commitment is the promise that belongs to Starbucks, and its possessive action calls for a punctuation mark that indicates that: an apostrophe. But this clear grammatical requirement runs into the “sounds funny” problem. To make it correct, you would write “Starbucks’s,” requiring the pronunciation “Starbucks-zzz.” Of course, if the name of the chain were Starbuck’s, (with an apostrophe, meaning “the place owned by a guy named Starbuck, like the character in ‘Moby-Dick,’ ” then it would get a little tricky: Starbuck’s’s. That sounds as if you’re fast asleep.
The British faced the problem of pronouncing the possessive mark after a name ending in s with the Court of St. James’s. They did not equivocate; to this day every newly appointed American ambassador is instructed to say James-zzz. It’s not all that hard to say, and correct usage gives you that added frisson of self-congratulation for standing firm on the side of good grammar and not succumbing to laziness.
I take this stand, splashing about in my venti cuppa coffee, because I’m The Times’s language columnist.

Thursday, 20 September 2007

Ticking bomb scenario

The Association for the Prevention of Torture has produced a booklet that addresses the various ticking bomb arguments:,en/

Wednesday, 19 September 2007

Common article 3 and interrogation techniques

A very interesting piece by P.X. Kelley and Bob Turner, on how US interrogation techniques violate common article 3 of the Geneva Conventions that appeared in the Washington Post in July just came to my attention:

The proceedings of the conference we held in Galway in 2004 are finally being published. They are edited by one of our PhD students, Edel Hughes, who is now a lecturer at the University of Limerick, and by Ramesh Thakur, who is now at University of Waterloo, and myself. For more information:

Tuesday, 18 September 2007

Security and Migration

Papers for a conference to be held Friday in Ottawa on security and migration issues are available at:

Professorship in human rights law

A professorshp in human rights law has been advertised at Buskerud University College in Norway. Requirements are a PhD and a 'solid research background in international human rights'. Teaching and supervision is to be done in English, and there is nothing in the job ad about fluency in Norwegian. I think some of the readers of this blog would probably be good candidates for the job:

Model Codes for Post-Conflict Justice

The long-awaited Model Codes for Post-Conflict Criminal Justice have now been published: Vivienne O'Connor, who has been rule of law project officer at the Irish Centre for Human Rights, and who was awarded a PhD at the Irish Centre earlier this year, is one of the editors, along with Colette Rausch. The Codes project began in 2001 as a partnership between the United States Institute of Peace and the Irish Centre for Human Rights. Over the years, hundreds of international experts have been involved in preparation of these Codes.

Monday, 17 September 2007

Declaration on the Rights of Indigenous Peoples

Last week, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples. One of our former LLM students, Carlos Yescas, was there, and has written a lovely personal account:

Sunday, 16 September 2007

Provocative article on torture

Prof. Michael Scharf has prepared an article in which he argues that there should be exceptions to the absolute prohibition on the admissibility of evidence obtained under torture. It will apparently be published as Scharf, Michael, "Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?" . Washington and Lee Law Review, Vol.65, No. 1, 2008. It is available at: . It seems to run counter to so many principles that one hardly knows where to start in critiquing it. I found the analogy with the use of medical research obtained by Nazi doctors to be particularly odd. The debates about medical research are ultimately ethnical matters. Analogies with the admissibility of evidence in a criminal court, especially when there is a peremptory rule set out in the Torture Convention, seem wrong-headed. But the article will certainly stir controversy and, hopefully, provoke detailed, serious analyses of Mike's arguments.

Death penalty lecture

Last Friday, in Galway, I delivered a lecture to our new LLM students on the issue of capital punishment and international human rights law. Here is the power point:

Residual issues at international criminal tribunals

With the completion strategies fully operational for the international criminal tribunals, attention is turning to the so-called 'residual issues' that will remain once they are shut down. An expert meeting earlier this year produced some useful papers on the subject:

Illicit conflict-fuelling activities of private-sector actors

Bruce Broomhall has sent me a useful link concerning a meeting held in Montreal last March on “hard remedies” available to address the illicit conflict-fuelling activities of private-sector actors:

He writes: 'As some of you know, the discussion focussed on national laws or regulation implementing three areas of international law in particular. These were international criminal law, sanctions imposed by the UN Security Council under Chapter VII of the Charter, and ‘international financial crimes’ (corruption, organized crime, money-laundering).

I recommend that you start with the first of the three listed documents - my own “Overview and recommendations” (click on the title, highlighted in blue). This is the shortest, most general, and most accessible piece. The following two documents are research papers that were distributed at the meeting, and are more detailed and legal-technical in nature. They deal with all three of the international legal regimes in question, and with UN sanctions enforcement respectively.'

Wednesday, 12 September 2007

Extraterritorial application of human rights law

Katarina Mannson writes: 'Anyone exploring the issue of extra-territorial application ofinternational HR treaties, and the ECHR in particular, may find aninterest in the attached decision by the ECtHR on two cases brought beforethe Court regarding actions of KFOR (NATO-led forces operating in Kosovo under SC Res 1244). Have not yet read the full decision, but a quick look at para 149 evokes some very intriguing thoughts with respect to thenever-ending fascinating tension between justice and peace/security. I believe this may be yet another instance of political interference in the reasoning of the members of the Court (ie Bankovic syndrome).' Behrami et al:

Monday, 10 September 2007

Is Darfur Slipping off the International Agenda?

Katy Glassboro of the Institute for War and Peace Reporting has just sent me an interesting article, ‘Sudan: Is justice slipping off Darfur agenda?’. Available at:

Friday, 7 September 2007

Marty Submits Brief to US Supreme Court in El Masry case

Swiss Senator Dick Marty, who has investigated secret detentions on behalf of the Council of Europe Parliamentary Assembly (PACE), today submitted a brief to the US Supreme Court arguing that ‘virtually nothingÈ remains secret concerning the mistaken kidnapping of German citizen Khaled El-Masri by the CIA. The US government’s contention that state secrets would be revealed if the case was heard is therefore ‘wholly unwarranted’, Marty says in his amicus curiae brief . ‘It would be contrary to the purpose of the state secrets doctrine (...) to allow the US government to shield its clearly wrongful acts on the basis of that doctrine’, writes Marty, arguing that El-Masri should be given the chance to prove his allegations in an American court, as promised by US Secretary of State Condoleezza Rice at a December 2005 press conference.

El-Masri spent five months in secret jails in Skopje and Kabul before being released blind-folded in an Albanian forest after it was realised he had been kidnapped in error. He is seeking damages for his illegal abduction and detention but lower courts have ruled that his claims cannot be heard without compromising US national security. The Supreme Court is soon to decide on his appeal.

The full brief is available at:

Recent publications of interest

The latest issue of the International Review of the Red Cross has an article by David Forsythe, who is a long-time associate of the Irish Centre for Human Rights. Most recently, Professor Forsythe gave a keynote presentation at the conference on the United Nations Charter bodies that the Irish Centre cosponsored with the University of Potsdam and Hebrew University, held in Potsdam in July 2007. See:

David P. Forsythe, ‘The ICRC: a unique humanitarian protagonist’, (2007) 865 International Review of the Red Cross 63 (available at

The latest issue of Human Rights Quarterly has an interesting article on human rights in China: Ming Wan, ‘Human Rights Lawmaking in China: Domestic Politics, International Law, and International Politics’, (2007) 29 Human Rights Quarterly 727 (available at:

Public Lecture on the Genocide Convention at Cardozo

On 20 September 2007, at 18h00, I will be giving a public lecture entitled 'The Genocide Convention: Where Are We Now?' at Cardozo School of Law, in New York City, where I am a visiting professor for the semester. Here is the poster: It is under the auspices of the Programme in Holocaust and Human Rights Studies here. I don't expect any of you to fly over for the occasion (although you are most welcome), but perhaps you know people in NYC and you can inform me them of this.

Thursday, 6 September 2007

Optional Protocol to the Convention Against Torture

Proceedings of a recent conference on the Optional Protocol to the UN Convention AGainst Torture, which creates new implementation mechanisms, are now available on line:

Tuesday, 4 September 2007

Venice Film Festival and Course on Human Rights and Cinema

Sorry for the silence of the past week. As most of you know, for the past three years I have been involved in delivering the academic programme at the summer school on Cinema and Human Rights, offered by the European Inter-University Centre for Human Rights and Democratisation, in conjunction with the Venice Film Festival. My main contribution is a series of lectures on the Universal Declaration of Human Rights, which I give using a powerpoint presentation that links provisions of the UDHR with films. Here it is:
But I also have to tell you about the fabulous film that I saw last Friday at the Venice Film Festival. Brian de Palma (Scarfare, the Untouchables, etc.) presented his latest film, Redacted, which is about war crimes committed by US forces in Iraq. I think it may be the most powerful anti-war film ever produced. This is all the more important because the film is produced during the war, and may contribute to its end. Most anti-war films tend to arrive once the fighting has stopped (All Quiet on the Western Front, La Grande illusion, Platoon, etc.) I hope you will all get the chance to see this film. We gave de Palma a 10-minute standing ovation.