Geoffrey Nice, Milosevic and the Supreme Defence Council

At a conference in Amsterdam last week, I chatted at length with Geoffrey Nice, who was the prosecutor in the Milosevic trial. Geoffrey has many interesting views on the trial, and on the problems of mixing politics with international justice. He shared with me a paper that he presented at a conference in Belgrade: http://www.mediafire.com/?7nkco5mjnjm. A big issue involves the records of the Supreme Defence Council, which were given to the Prosecutor of the International Criminal Tribunal under a condition that some parts would remain confidential. For this reason, the materials that ended up with the International Court of Justice were incomplete, and this has led some critics to say that the Court failed to get to the bottom of Bosnia's genocide charge against Serbia. The New York Times correspondent wrote a fair amount on this. I'm sceptical on the point, because I don't see what the complete records would have changed. Taken at their best, they apparently show a high level of control by Belgrade over the Bosnian Serbs, especially the military. But the Court concluded - based upon International Criminal Tribunal rulings - that genocide had not taken place, with the exception of a few days in Srebrenica at the end of the war. The case at the International Court of Justice was based upon the Genocide Convention, and without a finding of genocide, there was no case. So if the Bosnian Serbs didn't commit genocide during the conflict (with the Srebrenica exception) then proof that they were taking orders from Belgrade doesn't change anything. Of course, if the Supreme Defence council records showed that Milosevic ordered the killings in Srebrenica that would be a different thing, but I don't believe anybody has made such a suggestion.

Robert Badinter is amicus curiae in Omar Khadr case

Omar Khadr is a Canadian citizen, detained by the Americans at GuantanamoBay, for crimes allegedly committed when he was fifteen years of age. Unlike other governments, who have put pressure successfully on Washington to obtain the repatriation of their own nationals, the Canadian government has been complacent. French Senator Robert Badinter, an iconic figure in international human rights who successfully campaigned to abolish the death penalty in France when he was minister of justice, has prepared an amicus curiae brief that is signed by a number of international law specialists, including myself. Important excerpts from the brief were published in the leading French newspaper, Le Monde, a couple of days ago: http://www.lemonde.fr/archives/article/2008/01/22/omar-khadr-n-est-pas-un-ennemi-combattant-il-est-d-abord-une-victime_1002236_0.html. For a brief English account in the English language, see AFP: http://afp.google.com/article/ALeqM5gL-0ymKjxmpdKsI9_B3jPUT6C24w. See also the posting of 10 November 2007 on the Khadr case, on this blog.

Bibliographies

Patrick S. O’Donnell, of the Department of Philosophy at Santa Barbara City College, sent me some bibliographies he has prepared that he thought might be useful to post-graduate students in human rights. Here they are, with thanks to Patrick for this: comparative law (http://www.mediafire.com/?011exdejf3h), human rights law (http://www.mediafire.com/?1bawuyxumhx) and international law (http://www.mediafire.com/?40hxd1xltmw).

Corporal punishment of children

Two new documents from the Council of Europe deal with the issue of corporal punishment of children, and its abolition. Some 17 European nations are said to have already enacted a total ban on corporal punishment of children. The publications are inexpensive, and are full of useful arguments. They can be obtained from: http://book.coe.int

Victim Participation Decision by ICC Trial Chamber

The Trial Chamber of the International Criminal Court hearing the Lubanga case has just issued what looks to be an important decision on participation of victims in the proceedings: http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1119-ENG.pdf. A large role for victims is one of the features that distinguishes the Court from all of its predecessors. But just how large the role will be is a work in progress. One interesting aspect of the recent judgment is a significant dissenting opinion from one of the judges, something that to date has been a rather rare phenomenon at the Court.

New General Comment from Torture Committee

The Committee Against Torture recently adopted its General Comment No. 2: http://www.mediafire.com/?fagf2ydeqxj, General Comment 2 addresses the three paragraphs of Article 2 which the Committee regards as the 'essential principles that undergrid the Convention's absolute prohibition against torture'. It responds to State reporting to the Committee and deals principally with: State failure to make the offence of torture punishable under its criminal law; discrepancies between domestic law definitions of torture and the conventional definition of torture; state responsibility including the question of effective measures and effective control; non-discrimination; and superior orders. General Comment 2 rovides 'an authoritative opinion' on how the Committee understands the obligations of States under this article. The drafters have attempted to treat the disparities between the object and purpose of the Convention and State implementation, particularly; it would seem, in relation to counter-terrorism practices. The Committee clarifies a number of important issues - the non-derogability of Art. 2, Art. 15 and Art. 16 of the Convention; the objective determination of intent and purpose of Art. 1; and effective due process safeguards against torture. However, conversely, it manages to fudge some fundamental issues. The question of definitional distinction between torture, inhuman and degrading treatment is ambiguously treated (para. 3) and the Committee's interpretation of effective control may be considered overly ambitious and contrary to established jurisprudence ( para.16).
Thanks to Michelle Farrell for this contribution to the blog.

Happy New Year

Happy New Year to readers of the blog, and especially to PhD students at the Irish Centre for Human Rights. We have an exciting 2008 ahead of us. The year will include the tenth anniversary of the adoption of the Rome Statute of the International Criminal Court (on 17 July), the sixtieth anniversary of the adoption of the Genocide Convention (on 9 December) and the sixtieth anniversary of the adoption of the Universal Declaration of Human Rights (on 10 December). There will be many conferences and celebrations.

Some of the highlights of our activities at the Irish Centre for Human Rights for the coming year include the annual doctoral seminar, during the week of 31 March. Our guests this year are Prof. Anita Ramasastry (who is spending the semester at the Centre as a Fulbright fellow), Dr. Alfred De Zayas (formerly of the Office of the High Commisioner for Human Rights), and Prof. Semih Gemilmaz (of University of Istanbul). It will be followed by a student-organised conference on the 'responsibility to protect' or 'R2P'. In June, we will receive Judge Richard Goldstone, who will be awarded an honorary doctorate at the University. In the autumn (date to be confirmed, to be held in Galway), we will jointly sponsor a conference with UNESCO on the right to benefit from scientific progress.

I am back in action after a wonderful two weeks in Mexico. We spent a week with friends at the beach town of Puerto Escondido, three extraordinary days visiting the heritage site of Oaxaca, and a final night in Mexico City, where Juan Manuel Portilla Gomez and his family took Penelope and I for a lovely dinner (see top photo). Some of you may remember Juan Manuel, who is a distinguished professor of international law in Mexico. He spent his sabbatical three years ago at the Irish Centre for Human Rights. The bottom photos show one of the pyramids at Monte Alban, outside Oaxaca, and Penelope at the local market, deciding whether or not to buy some grasshoppers for cooking. She can be an adventuresome cook, but she took a pass on the grasshoppers (which I tried out that night in a Oaxacan restaurant).

We are back in New York City for the night, but are leaving tonight for Rome, where I will be a visiting professor at the Luiss Guido Carli University during January and February.