Concluding Observations on Ireland's Report to the Human Rights Committee

A few weeks ago Ireland presented its periodic report to the Human Rights Committee. The Concluding Observations, in which the Committee gives out a few kudos but also signals problem areas, can be found at: http://www2.ohchr.org/english/bodies/hrc/docs/AdvanceDocs/CCPR.C.IRL.CO.3.doc

Bosnia Genocide Verdict

The War Crimes Chamber in Bosnia and Herzegovina handed down its first genocide conviction today. Known as the 'Kravice case', it involves 11 persons accused of involvement in the Srebrenica massacre, in July 1995. the judgment is not yet available, and I am told it will not be for some time. Here is the press release: http://www.sudbih.gov.ba/?id=959&jezik=e#
Seven of the accused were convicted of genocide, and four acquitted for lack of evidence. Sentences for those convicted are hefty - 38, 40, and 42 years depending on aggravation and mitigation. The Panel said sentencing started at a baseline of 40 years for those found guilty and was calculated upward or downward from there. The man in charge, Stupar, received 40 years for his failure to punish genocide. The other six were convicted as direct perpetrators. The remaining four were acquitted because the prosecution's evidence with respect to them was inadmissible or eye witness evidence failed to also incriminate them. The Prosecution's theory of joint criminal enterprise (JCE) was rejected.
Thanks to Stephanie Barbour and Joe Powderly.

Roja Fazaeli

A few weeks ago, Roja Fazaeli successfully defended her doctoral dissertation at the Irish Centre for Human Rights. It deals with perspectives on feminism in Islam, and is entitled: 'The Fifth Generation of Islamic Feminists: Rights, Interpretations and Activisms.' Roja was a recipient of an Irish Research Council for the Humanities and Social Sciences doctoral fellowship.
A few days ago, Roja confirmed to me that she has been appointed lecturer in the new Islamic studies programme at Trinity College Dublin. Congratulations, Roja.
The photo was taken after Roja's viva, and shows her with the jury, from left, Dr Nadia Bernaz (NUI Galway), Roja, Professor Martha Fineman (Emory University) and myself.

Roja is the seventeenth doctoral student to complete her studies at the Irish Centre for Human Rights since the first graduations, in 2005. She is the twelfth to obtain a university lectureship. The other five are gainfully employed as lawyers, think tankers, human rights trianers and legal advisors to international tribunals.
By the way, Roja is a keen blogger, and refers us to a recent article that she wrote with Liz Bucar on weblogers in Iran : http://journals.cambridge.org/action/displayIssue?jid=MES&volumeId=40&issueId=03.
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The Real McCain

Check this out: http://www.brasschecktv.com/page/325.html.
Thanks to Penelope Soteriou.

Transfer and Extradition of Genocide Cases to Rwanda

Earlier this month I participated in a conference in Brussels on the various proceedings underway to transfer or extradite genocide suspects to Rwanda. Three decisions of the International Criminal Tribunal for Rwanda, reported on this blog in May and June, denied transfer to Rwanda, while a ruling of a British court authorised extradition. Here is the paper I presented at the Brussels conference: http://www.mediafire.com/?w2bm3fxdmx9.

Africa Court of Human Rights to Merge with African Court of Justice

The African Union has approved a plan to merge the African Human and Peoples' Rights Court with that of the African Court of Justice, reports Hirondelle Agency. 'The meeting of Heads of State in Egypt endorsed the plan which will enable Arusha-based African Court effectively execute its work as a single continental judicial organ',' said Justice Gerard Niyungeko, President of the African Court. Justice Niyungeko said that there was need to allow NGOs and individuals to file cases before the Court, an issue that was not agreed upon at the Summit.
Only 24 member states out of 53 African Union (AU) have ratified the Protocol. The Court was established by the then Organisation of African Unity (OAU) Protocol adopted by members states in Ouagadougou, Burkina Faso in June 1998. The Protocol entered into force in January 2004. The Court started its operations in Addis Ababa, Ethiopia in November 2006 but moved to its permanent seat in Arusha in August, last year.

Dr Ray Murphy Wins Teaching Award

One of our colleagues at the Irish Centre for Human Rights, Dr Ray Murphy, has just been honoured by the National Academy for the Integration of Research & Teaching and Learning (NAIRTL) as one of five exemplary teachers who are also innovative researchers in higher education in Ireland. Ray was one of two lecturers at the National University of Ireland, Galway to be so recognised. Those readers of this blog who have studied with Ray don't need me to tell you why he won the award.

Dr James Browne, President of our university, said: “It is very good news that two members of NUI Galway academic staff have been recognised by NAIRTL as exemplary teachers, and for NUI Galway to win two of the five awards is a huge achievement and a testament to the quality of the nominations put forward from this institution. Both Dr Cantillon and Dr Murphy were recipients of our internal awards for teaching excellence in 2006-2007, which recognises the outstanding efforts academic staff make to ensure NUI Galway students receive the highest quality learning experience.”

Congratulations, Ray, for this singular honour.

Karadzic's Website

It seems that Karadzic has (had) a website: http://dragandabic.com/. It has been suggested that I call this an 'alleged website'. But it looks credible. Anybody for alternative medicine?
Thanks to Joe Powderly and Melissa Hacking.

International Courts and Tribunals: the Year in Review

The first first annual Atrocity Crimes Litigation Year-in-Review (2007), published by Northwestern Journal of International Human Rights, is now available at http://www.law.northwestern.edu/jihr/atrocitycrimeslitigation.html. Contents include:
§ Introduction: Atrocity Crimes Litigation During 2007, David Scheffer.
§ International Criminal Tribunals: A Review of 2007, William A. Schabas.
§ Recent Trends in International Criminal Law: Perspectives from the U.N. International Criminal Tribunal for Rwanda, George William Mugwanya.
§ Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, Christine H. Chung.
The paper were originally presented at a conference held at Northwestern University in January 2008. The 'Year-in-Review' conference will be an annual event. Check the Journal website or the Center for International Human Rights website later this year for information regarding the 2009 Year-in-Review Conference.

Nadia Bernaz Book on International Law and Capital Punishment Published

The Documentation Française has just published Le droit international et la peine de mort by Dr Nadia Bernaz, who is a lecturer at the Irish Centre for Human Rights: http://www.ladocumentationfrancaise.fr/catalogue/9782110072443/index.shtml.

Congratulations, Nadia.

Palme v. Moreno-Ocampo

Here is the decision of the International Labour Organisation tribunal in the case concerning dismissal of International Criminal Court employee Palme by Prosecutor Moreno-Ocampo: http://www.mediafire.com/?hkj1nntg3id. Christian Palme's account of the events was leaked to some journalists, and is also available on the web: http://www.innercitypress.com/ocampocomplaint.pdf.
Thanks to Jean Allain.

Radovan Karadžić Arrested Near Belgrade

Radovan Karadžić, the Bosnian Serbe leader during the 1992-1995 war, was arrested on Monday by Serb authorities near Belgrade. He was indicted in mid-1995, by Prosecutor Richard Goldstone, and has been on the run since then. He should shortly be transferred to The Hague for trial before the International Criminal Tribunal for the former Yugoslavia. That leaves one more 'most wanted' suspect for the Tribunal still at large, General Ratko Mladić, who was in charge during the Srebrenica massacre of July 1995.
Thanks to Joe Powderly.

African Union Seeks Suspension of Bashir Warrant

The African Union will request the United Nations Security Council to suspend the proceedings against President Bashir, according to Nigeria's minister of foreign affairs. According to Associated Press (http://news.yahoo.com/s/ap/20080721/ap_on_re_af/au_sudan), Ojo Maduekwe told journalists at the end of an emergency meeting of the African Union's Peace and Security Council: 'Our concern is the timing and how this could impact on the peace process in Sudan,.' He said that if al-Bashir were removed from power and arrested, 'the whole place could turn into one huge graveyard. That could happen.'
According to article 16 of the Rome Statute, the Security Council may suspend proceedings before the International Criminal Court. It must adopt a resolution to this effect which remains in force for twelve months, although it can be renewed. In 2002 and 2003, the Council adopted resolutions pursuant to article 16, but at the behest of the Americans, and in the context of a more general attack on the Court.
Thanks to Megan Fairlie.

More Bashir Bashing

The Oxford Transitional Justice Research website has a number of interesting posts on the application for charges against President Bashir of Sudan: http://www.csls.ox.ac.uk/otjr.php?show=workingpapers
1. If Ocampo Indicts Bashir, Nothing May Happen: 13 July 2008 by Phil Clark
2. Dilemmas of Confrontation and Cooperation: Politics in Sudanduring Ocampo v Bashir: 18 July 2008 by Sharath Srinivasan
3. Ocampo v Bashir: The Perspective from Juba: 18 July 2008 by Naseem BadieyBest wishes.
You may also be interested in a short BBC profile about Prosecutor Luis Moreno-Ocampo, broadcast on BBC4 radio over the weekend: http://www.bbc.co.uk/radio/podcasts/nk/profile/
Thanks to Aisling O'Sullivan.

Texas Plans to Defy International Court of Justice

According to yesterday's Houston Chronicle, Texas will go ahead with the scheduled 5 August execution of Houston rapist-killer Jose Medellin. On Wednesday, the International Court of Justice ordered the United States not to execute Medellin and others pending its final ruling in a case filed before the Court by Mexico. The newspaper quotes a spokesperson for Governor Rick Perry. Another example of lawlessness from the country much of the world once looked to for moral leadership.
Thanks to Mike Radelet.

Navi Pillay Frontrunner as New High Commissioner

The puff of white smoke has yet to emerge from First Avenue, but in all likelihood the United Nations Secretary-General will soon anoint Navanethem (‘Navi’) Pillay as the next High Commissioner for Human Rights. Navi Pillay is a great South African jurist, who first came to international attention when she was elected as a judge of the International Criminal Tribunal for Rwanda. When Judge Kama passed away suddenly, she took over as President of the Tribunal. In 2003, Judge Pillay was elected to the International Criminal Court. Her six-year term concludes early next year. A few years ago, Judge Pillay gave an inspiring keynote address to our incoming group of LLM students in Galway. We hope to see her again soon, as the next High Commissioner.

ICC to Pay EUR 120,000 in Compensation for Wrongful Dismissal of an Employee by the Prosecutor

The International Criminal Court has been ordered to pay out EUR 120,000 in compensation to a whistleblower who complained about the alleged sexual impropriety by Prosecutor Luis Moreno-Ocampo, and then was fired by him in what the Administrative Tribunal of the International Labour Organisation called a ‘breach of due process’, writesJoshua Rozenberg, the legal affairs writer for The Telegraph: http://www.telegraph.co.uk/news/newstopics/lawreports/rozenberg/2304736/Omar-al-Bashir-of-Sudan. Rozenberg says the Prosecutor should resign immediately. This hit the news yesterday, although the ruling came out earlier in the month, a few days before the Prosecutor's spectacular public request for charges against Sudanese President Bashir. It was a melancholy way to mark the tenth anniversary of the entry into force of the Rome Statute.

United States Ordered to Stop Executions in Mexican Cases by International Court of Justice

The International Court of Justice today ordered the United States to stop executions of several Mexican nationals who are covered by a 2004 judgment of the Court. Frustrated at the failure of the United States to implement the 2004 judgment, Mexico filed a new application before the Court several weeks ago requesting that it interpret the earlier judgment. See: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=musa&case=139&k=11
Thanks to Nadia Bernaz.

Cassese: Flawed International Justice for Darfur

Prof. Antonio Cassese, former President of the International Criminal Tribunal for the former Yugoslavia, and chair of the UN Commission of Inquiry on Darfur, has criticised certain aspects of the Prosecutor's decision to charge the President of Sudan before the International Criminal Court. His article appeared in the Italian newspaper La Repubblica earlier today. Here is an English translation: http://www.mediafire.com/?zyzjnofumlz.

Death penalty 'Badass' According to US Supreme Court

Check out this news repport from the Onion: http://www.theonion.com/content/video/supreme_court_rules_death_penalty
Thanks to Rick Lines.

Vietnam Considers Reducing Number of Capital Crimes

The Vietnamese Ministry of Police has recommended that capital punishment be abolished for twelve crimes, including smuggling, trading false products and hijacking. The recommendation will be the base for the National Assembly to amend an important section of the Criminal Code. 'The aim of the amendment is to make the country’s criminal code more compliant with world trends to humanize laws and completely abolish the death penaltyè, said Nguyen Ngoc Anh, head of the Legal Department of the Ministry of Police.
Article 6(2) of the International Covenant on Civil and Political Rights accepts that states that have not yet abolished the death penaly may still impose it, as an exception on the general prohibition on capital punishment that is implicit in article 6(1) of the Covenant, but only in the case of the 'most serious crimes'. The United Nations Safeguards guaranteeing protection of the rights of those facing the death penalty, adopted by the Economic and Social Council in 1984, declare that crimes subject to the death penalty 'should not go beyond intentional crimes with lethal or other extremely grave consequences'. Last year, Philip Alston, the United Nations Special Rapporteur on Extradjudicial, Summary or Arbitrary Executions said the death penalty should only be imposed 'in cases where it can be shown that there was an intention to kill which resulted in the loss of life' (see UN Doc. A/HRC/4/20).
Thanks to Adrienne Riley.

Victims can Present Evidence, says International Criminal Court Appeals Chamber

I mentioned on this blog a few weeks back that concern was growing in The Hague on the scheme of victim participation in the International Criminal Court. The long-awaited decision of the Appeals Chamber on the appeals lodged against Trial Chamber I’s 18 January 2008 decision on victim participation in the Lubanga case was delivered last Friday (judge Pikis dissenting): www.icc-cpi.int/cases/RDE/c0106/c0106_docAppeal.html. The Appeals Chamber found that ‘harm’ suffered need not be direct, but must be personal, and that there must be a causal link with the charges. It also upheld the Trial Chamber’s finding that victims may potentially lead evidence pertaining to the guilt or innocence of the accused, or challenge the admissibility or relevance of evidence. While the Appeals Chamber did point out that the right to introduce or challenge the admissibility of evidence lies primarily with the parties (‘namely, the Prosecution and Defence’), the Appeals Chamber said these provisions did not preclude victims from doing so if their personal interests were affected.
Notwithstanding the fact that victims do not have the same disclosure obligations that the Prosecutor has to the Defence, it is far from obvious how such a right has emerged from the original basic right of victims ‘to present their views and concerns… in a manner which is not prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial’.
Article 69(3) of the Rome Statute clearly states that ‘the parties may submit evidence to the case’, while Article 66(2) states that the onus is on the Prosecutor to prove the guilt of the accused: allowing victims to lead evidence pertaining to the guilt or innocence of the accused means that the accused essentially now faces more than one accuser, contravening to the equality of arms principle central to the right to a fair trial. As victims can now gain access to the Prosecution's documents (under the Trial Chamber's 18th January decision: leave to appeal was not granted on this), material considered by the Prosecutor but not produced by him as evidence could be introduced by victims, and the case being redirected into areas thought irrelevant by the Prosecutor for the purposes of establishing the guilt of the accused. Indeed, the Trial Chamber itself, in the decision granting leave to appeal, did recognise that this element of the decision ‘may result in the Chamber considering evidence that otherwise would not be available’. The Appeals Chamber decided that if it were to deny victims outright the right to introduce or challenge evidence, ‘their right to participate in the trial would potentially become ineffectual’.
Representatives of victims will be delighted by the ruling. We are told that what is going on is merely a reflection of the continental legal system, where victims participate as parties civiles. But what we are seeing bears no resemblance to trials under Romano-Germanic procedure. The ruling may only worsen the havoc plaguing the Court with respect to this new and unknown frontier of witness protection.
Many thanks to Yvonne McDermott.

Genocide Charges at the International Criminal Court?

Will the Prosecutor of the International Criminal Court seek arrest warrants against Sudanese President Bashir and other leaders for the charge of genocide? Rumours have been rife for several days that he plans to apply to the Pre-Trial Chamber for arrest warrants. They have been nourished by the Prosecutor himself, in a variety of informal comments, statements and innuendo.
There are already two Darfur arrest warrants outstanding, issued more than a year ago, and still unenforced. They charge crimes against humanity and war crimes, but not genocide. At a conference in Montreal last October, I asked the Prosecutor if he could clarify his views on whether or not genocide charges should be laid, but he provided only a perfunctory and incomplete answer.
The debate about whether to characterise the atrocities in Darfur as genocide has been raging since 2004, when the Bush administration and its allies in Congress used the term. But a United Nations Commission of Inquiry, chaired by the distinguished academic Antonio Cassese, concluded that there was insufficient evidence of genocide, and that it was better to use the term crimes against humanity: http://daccessdds.un.org/doc/UNDOC/GEN/N05/225/36/PDF/N0522536.pdf?OpenElement. See also my article on the Darfur report: http://www.mediafire.com/?tznmtj0zmmt. The relatively conservative approach to the definition of genocide reflected in the Cassese report also underpins other recent pronouncements on the scope of the crime of genocide, notably the February 2007 judgment of the International Court of Justice in the Bosnia v. Serbia case: http://www.icj-cij.org/docket/files/91/13685.pdf.
Charging Bashir with genocide will sell well on the American street. The Prosecutor will no doubt be congratulated by neo-con journalists, the religious right and the Israel lobby for daring to use the g-word..
But legally, this would not be a correct move. It flies in the face of recent authority. The charges may well be confirmed by a Pre-Trial Chamber, for the purposes of launching the proceedings, but serious jurists familiar with contemporary jurisprudence will expect genocide charges to result in acquittals. We have seen this before. An overly ambitious approach to genocide by the Bosnian government led to a humiliating defeat in the International Court of Justice, and arguably only poured salt in their wounds. All but one of the genocide prosecutions at the International Criminal Tribunal for the former Yugoslavia has ended in acquittal. The same fate probably awaits the Darfur charges, should the Prosecutor opt for the more spectacular charge of genocide. Overcharging only results in frustration and anger for the victims.
If the rumours are true, there is a whiff of grandstanding about this. It smells like a somewhat desperate move driven by recent setbacks in other cases. Already, the first trial at the International Criminal Court has been aborted, at least temporarily, because of imprudent tactical decisions by the Office of the Prosecutor. The Office took rafts of evidence from the United Nations and other bodies when it should have made it clear to the providers that such material was subject to disclosure to the defence. Now, the Appeals Chamber is debating whether to cancel everything. Even if the Appeals Chamber eventually finds a way forward, somebody needs to take responsibility for the mess.
See today’s Observer for an op-ed arguing that the Prosecutor should back off because of the humanitarian consequences: http://www.guardian.co.uk/world/2008/jul/13/sudan.humanrights.

ICC Prosecutor May be Preparing Bashir Charges

Rumours abound that the Prosecutor of the International Criminal Court may seek an arrest warrant for President Bashir of Sudan. See: Guardian, http://www.guardian.co.uk/world/2008/jul/11/sudan.warcrimes; Washington Post, http://www.msnbc.msn.com/id/25632013. The announcement is expected on Monday.
Thanks to Quincy Diep.

Palestinian Village Sues in Canadian Courts

Both Al Jazeera and The Guardian reported yesterday on a lawsuite filed in Montreal against a Canadian corporation for erecting buildings on Palestinian land in the Occupied Territory, in contravention of the fourth Geneva Convention: Firms sued for Israeli settlements http://english.aljazeera.net/news/middleeast/2008/07/20087101026876428.html). I have managed to obtain a copy of the actual lawsuit: http://www.mediafire.com/?9d2mivxx5z1. Quebec is a civil law jurisdication, and its tort law legal regime is based on a general provision that makes harm caused to another person actionable. The fourth Geneva Convention underpins the allegation, as I understand the claim. The corporation is apparently domiciled in Quebec, which gives its courts jurisdiction. Quebec law recognises the forum non conveniens doctrine, but it will be for the defendant to demonstrate that courts elsewhere in the world - in Israel, presumably - are better equipped to deal with the litigation.
Thanks to Michael Kearney.

New Website on Human Rights In Ireland

Check out this new website – www.rightsmonitor.org – which has gone live today. It is an initiative by three Irish NGOs: Free Legal Advice Centres (FLAC), the Irish Council for Civil Liberties (ICCL), and the Irish Penal Reform Trust (IPRT). This summer, the site’s focus will be on Ireland’s performance under the United Nations International Covenant on Civil and Political Rights, which will come under formal examination by the UN Human Rights Committee in Geneva next Monday and Tuesday (14 and 15 July 2008).

Future of International Humanitarian Law

Harvard University's Programme on Humanitarian Policy and Conflict Research is holding a panel discussion on the 'Future of International Humanitarian Law', to be broadcase live on the web on 16 July 2008, at 1515 EST.

Panelists will include:
Antoine Bouvier, Legal Advisor, Delegate to Academic Circles, International Committee of the Red Cross
Claude Bruderlein, Director, Program on Humanitarian Policy and Conflict Research
Knut Dörmann, Head of the Legal Division of the International Committee of the Red Cross
Jennifer Leaning, Co-director, Harvard Humanitarian Initiative
Naz Modirzadeh, Senior Associate, Program on Humanitarian Policy and Conflict Research
Daphna Shraga, Principal Legal Officer, Office of the Legal Counsel, United Nations
According to the announcement, 'The panel will focus on the emerging challenges to, and continued relevance of, international law in the protection of civilians. Issues to be covered will include opportunities for the enforcement of humanitarian law, responsibilities of states and non-state actors, negotiation of humanitarian access, and the role of civil society in humanitarian protection.Panelists will take questions and comments from humanitarian professionals from around the world. Online viewers are warmly invited to submit questions before or during the event to the moderator, Dr. Vincenzo Bollettino, at vbollett@hsph.harvard.edu. '
For more information; http://ihlforum.ning.com.

ICC Spray Protects Against Prosecutions

Unfortunately, when the International Criminal Court was being created, its drafters didn't think too much about the acronym, which is widely used in other contexts. There is a product on the market known as 'ICC Spray', available by internet: http://www.cookingconcepts.com/PDF/Spray_ICC.pdf. Dov Jacobs says it is a'nice metaphor of international justice, turning it into a "soft, light cloud"'
See also, the International Cricket Council: http://icc-cricket.yahoo.com/ and the International Chamber of Commerce: http://www.iccwbo.org/
Thanks to Dov Jacobs.

Farewell to Louise Arbour as High Commissioner

Louise Arbour has now stepped down as High Commissioner for Human Rights. A nice story about her by Marlyse Simons appeared in today's New York Times: http://www.nytimes.com/2008/07/06/world/europe/06arbour.html?_r=1&ref=world_&oref=slogin

‘Flipside’ Prosecutions of Jewish Partisans in Lithuania

One of the ongoing challenges to international criminal law is the issue of ‘balance’ in prosecutions, sometimes called the 'flipside' cases. From Bosnia to Rwanda to Sierra Leone to Uganda, there are calls to prosecute the ‘other side’, and criticisms of prosecutions that appear to make political choices in targeting alleged offenders. The classic response is that international human rights (and humanitarian) law is concerned with the jus in bello, which applies regardless of whether the cause was or was not just. In my view, this issue remains unresolved, and it does not lend itself to simplistic solutions. The proposition that prosecution for international atrocity crimes must be neutral and indifferent strikes me as profoundly unsatisfactory.
As an example, consider the Nuremberg trial, which some critics label ‘victors’ justice’. We may well ask, however, about the historic legacy of post-World War II justice had it attempted to prosecute crimes committed on all sides, even-handedly. Should, for example, Jewish partisans who struggled valiantly with the limited means at their disposal to resist genocide have been punished for war crimes on the same basis as their Nazi tormentors? I had thought the question a hypothetical one, and indeed a rhetorical device demonstrating the perverse consequences of what some call even-handed justice. Apparently my example has an air of reality. Haaretz reports on investigations in Lithuania into a massacre allegedly perpetrated by Jewish partisans in 1944: http://www.haaretz.com/hasen/spages/1000086.html. More than 200,000 Jews were murdered in Lithuania under the Nazi regime, approximately 90% of what was one of Europe’s most dynamic and vibrant Jewish communities.According to Haaretz, the focus of the investigation is Yitzhak Arad, former chairman of of the Yad Vashem holocaust museum in Jerusalem. ‘Arad was appointed in 2005 by Lithuania's president to a high-level commission examining past war crimes. As a part of his work, Arad drew the ire of right-wing groups when he publicly asked that the country address the role of Lithuanians in the murder of Jews during the Holocaust. After a number of attacks on Arad in right-wing Lithuanian newspapers, Lithuania's chief prosecutor opened a pretrial investigation of Arad's wartime actions in Kaniukai. A Polish institute had earlier found that 38 people in the town were killed in 1944 by a Soviet anti-Nazi unit consisting of 120 to 150 people, including both Jews and non-Jews. In June 2007, Israel was formally asked to question Arad - a request that Israel declined. Since then, Lithuanian authorities also have questioned two women: Fania Branstovsky, a former partisan and now a librarian at the Vilnius Yiddish Institute, and Rachel Margolis, who wrote a memoir about her experiences in the resistance.’Arad was quoted in Forward as saying: ‘The murderers are now becoming national heroes, and we, the few surviving victims who took up arms and fought the murderers, are under investigation as criminals.’

Deserters from US Army May Get Refugee Status

In Key v. Canada, the Federal Court of Canada yesterday granted judicial review of a decision denying refugee status to a deserter from the United States armed forces: http://cas-ncr-nter03.cas-satj.gc.ca/rss/IMM-5923-06%20Decision.pdf. According to Justice Robert Barnes, ‘military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve’. The Court overturned a ruling of the Immigration and Refugee Board
According to Key, while in Iraq with a unit of combat engineers, he had participated in at least 70 raids on civilian homes. The Board found that such actions had ‘a disturbing level of brutality’ but that they were not war crimes involving deportation, slave labour or civilian hostage-taking, or crimes against humanity, with systematic use of torture and murder against civilians. ‘In my view, the Board erred in … concluding that refugee protection for military deserters and evaders is only available where the conduct objected to amounts to a war crime, a crime against peace or a crime against humanity’, wrote Justice Barnes.
See also: http://www.theglobeandmail.com/servlet/story/RTGAM.20080704.wclaim05/BNStory/National/home
The case returns to the Board, which still has to decide whether Key can get protection from persecution within the United States.
This is a fine way to mark the fourth of July which, as many readers of this blog will know, is celebrated in our home as the birthday of our grandson, Thomas William!

Dramatic Torture Ruling by European Court

The Grand Chamber of the European Court of Human Rights, in Gäfgen v. Germany, has dismissed an application by a criminal who was tortured by police in order to obtain information about the location of a child that he had kidnapped: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=71386&sessionId=4507150&skin=hudoc-en&attachment=true. It is about as close as we come to the ‘ticking bomb’ scenario. The Court ruled that although a violation had been committed, the applicant was no longer a ‘victim’. One blog calls it ‘one of the most difficult cases’ the Court has had to adjudicate: http://echrblog.blogspot.com/2008/07/evidence-obtained-through-violation-of.html.
This will be a great case to discuss at our regular doctoral seminars, when we start them up again in September.

Massive Amnesty in Pakistan, 7,000 Death Sentences Commuted

According to today's Times, Pakistan has reprieved 7,000 death-row inmates and commuted their sentences to life imprisonment. ' In one of the biggest amnesties of modern history, the Cabinet approved the reprieve to mark the 55th birthday of Benazir Bhutto, the former Prime Minister, who was assassinated late last year. Her Pakistan’s People’s Party (PPP), which swept the national elections this year, now leads a four-party coalition government. The move will come into effect after endorsement by President Musharraf. Human rights activists said that the reprieve, the largest mass commutation of death sentence anywhere, would benefit almost one third of the world’s death-row population, which is estimated to be around 24,000. Welcoming the amnesty, the Human Rights Commission of Pakistan demanded complete abolition of the death sentence. Pakistan is among 69 nations that retain the punishment. Radical mullahs called on Muslims to protest against the clemency, which is regarded as “un-Islamic”.'
Thanks to Mark Warren, who writes: 'Truly, almost anything is possible...'

Torture in India

See the report by the Asian Centre for Human Rights, Torture in India 2008: A State of Denial: www.achrweb.org. Michelle Farrell writes: 'The report is the first ever nationwide assessment of torture in India. The findings expose a culture of impunity where torture is a routine practice in police custody as well as by the armed forces and armed opposition groups. The report documents thousands of incidences of torture (7,468 custodial deaths between 2002 and 2007), many of which resulted in death.I ndia signed the United Nations Convention against Torture in 1997 but has not yet ratified. It is a State Party to the International Covenant on Civil and Political Rights but does not recognize the competency of the Committee to hear individual complaints. In addition, India has been refusing an invitation to the Special Rapporteur on Torture since 1993.The report recommends, among other things, that India should enact legislation to criminalize torture; compensate victims; and ratify the Convention against Torture and its Optional Protocol.
Thanks to Michelle Farrell.

Consternation in The Hague

Yesterday afternoon, Trial Chamber I of the International Criminal Court confirmed its earlier ruling in the Lubanga case (see this blog, 25/6/08), ordering the release of the accused subject to certain conditions (http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1418-ENG.pdf; http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1417-ENG.pdf). It has in effect now handed the matter over to the Appeals Chamber.
Lubanga is charged with the war crime of enlisting child soldiers in the Democratic Republic of the Congo. He has been in custody of the Court since March 2006 awaiting a trial which was initially scheduled to begin in March of this year, then postponed to June, and now stayed indefinitely. What was to be the first trial of the new Court has become its biggest crisis.
The core issue concerns hundreds of documents obtained by the Prosecutor, mainly for the United Nations but also from some NGOs, on a confidential basis. In principle, the Prosecutor is required to disclose to the defence any evidence in its possession that might be of assistance to the defence. However, it has invoked as an exception its right to obtain evidence on a confidential basis under limited circumstances. The Trial Chamber thinks the Prosecutor has abused this exception, in effect making very general commitments to information providers like the United Nations.
I have been in The Hague since Tuesday evening, and spent yesterday hanging out at the Court. I planned to attend the Charles Taylor trial and the Katanga confirmation hearing, both of which were underway, but after an hour or so in the courtrooms I went to the cafeteria where I began bumping into people, and really never left. Informal chats with people around the Office of the Prosecutor suggest a high level of confidence that a solution will be found and that the trial of Lubanga will continue. The Office of the Prosecutor appears to be working on some mechanism by which the judges will be able to assess the material themselves, confidentially, and decide whether it needs to be disclosed to the defence.
In my humble opinion, it is not at all obvious that this is the way forward here. The Prosecutor requires agreements from its information providers, including the United Nations, by which it can show the material to the judges. But can the judges participate in such a scheme? The information provider will simply extend the net of confidentiality to include the judges. If they conclude that some of the evidence must be disclosed to the defence, they will be at an impasse, and the trial will be aborted. The mechanism only works if they reach to opposite conclusion, namely that there is no information of an exculpatory nature in the package they are given by the Prosecutor. But can a trial then continue? Under very limited circumstances, it is allowed for judges to hold hearings ex parte, that is, without the defence being present. This works, for example, with issues involving the identity of witnesses, and similar matters. But can it ever be acceptable for judges to see large volumes of evidentiary material in the absence of an accused, material that may be inculpatory? We would hardly be surprised to learn of such procedures in Guantanamo, but in The Hague?
The Office of the Prosecutor is supremely confident that it has done nothing wrong. However, at least three judges think otherwise. We will await the Appeals Chamber decision impatiently on this point. Even if a solution is found, the approach of the Office of the Prosecutor in gathering evidence has created a terrible crisis in the Court. In such circumstances, someone has to fall on their sword. In a decision of a few weeks ago on disclosure-related matters in another case (http://www.icc-cpi.int/library/cases/ICC-01-04-01-07-621-ENG.pdf, para. 49), Judge Sylvia Steiner wrote:

After more than a hundred years of struggle, a permanent international criminal court has finally emerged as a unique symbol of the fight against impunity for the most heinous crimes of international concern. It represents the last hope for justice for the millions of children, women and men who have suffered, and are currently suffering, unimaginable atrocities that shock the conscience of humanity. With all due respect for the Prosecution, the Single Judge strongly believes that the International Criminal Court cannot allow such problems to reoccur, and that therefore, the Bureau of the Assembly of States Parties, as well as the Assembly of States Parties, will have to draw their own conclusions.

Strong words.
On another note, my informal chats in the cafeteria of the Court reveal a growing frustration with the participation of victims in the proceedings. There is a sense that this is something that has spiralled completely out of control. One of the distinctive features of the Court, in contrast with the earlier Tribunals for the former Yugoslavia, Rwanda and Sierra Leone, not to mention Nuremberg, is the participation of victims. Proceedings at the Court are now literally dominated by victim issues. It has become a small cottage industry for lawyers. I learned a new expression in The Hague yesterday, when judges referred to ‘non-anonymous witnesses’, a wonderful example of a double negative.