Burundi Abolishes Death Penalty

Burundi's National Assembly voted to abolish the death penalty a few days ago. Every year, two or three States abolish the death penalty. Congratulations to Burundi.
Unfortunately, in the same session the National Assembly adoped legislation criminalising homosexual behaviour.

First Judgment in Nearly a Year from Rwanda Tribunal

Two weeks ago, the International Criminal Tribunal for Rwanda issued its first judgment in more than eleven months. The decision in Nshamahigo was issued on 12 November: http://69.94.11.53/ENGLISH/cases/Nshamihigo/judgement/081112_judgement&sentence.pdf. The last decision issued by the Tribunal prior to that was in Karere, on 7 December 2007. And then we have to go back to 2006 to find a decision (excluding cases involving guilty pleas). Nshamahigo is not particularly complex, and the judgment runs to about 80 pages. It concerns a single defendant, and does not raise any complex issues of legal interpretation.
In its report to the Security Council on the completion strategy, prepared a year ago, the Tribunal said it would issue judgments concerning nine defendants during the first half of 2008. To date, Nshamahigo is the only judgment issued. Several defendants in Bagosora et al. have been awaiting judgment since their trial ended in June 2007, seventeen months ago. They have been in custody since 1996 and 1997.
What is delaying this Tribunal? Why does everything move so slowly? It it because the faster the Tribunal moves, the sooner the institution will close its doors, and the judges and employees will see their jobs come to an end?
The Security Council will meet in the next few weeks for the next report of the Tribunal on the completion strategy. It will be interesting to see if any of the members of the Security Council challenge the Tribunal on the failure to meet its commitments, and whether the President of the Court or the Prosecutor have any reasonable explanations for the delays.

Another Victory Against Death Penalty at the United Nations

On Friday, the Third Committee of the General Assembly of the United Nations voted a resolution calling for a moratorium on capital punishment. Readers of the blog will recall the successful adoption of such a resolution last year, for the first time. This year the result was stronger than last year, proof of the continuing trend towards total abolition of capital punishment. On Friday, there were more votes for the resolution and fewer against than last year, and the resolution had more co-sponsors. In all, 105 countries voted in favour of the resolution, 48 against and 31 abstained (the result last year, in the plenary General Assembly, was 104 – 54 -29).Five Arab League states changed their vote compared with last year. In 2007, Bahrain, Jordan, Oman, and Mauritania voted against; this year they abstained. Somalia voted against last year, but was absent this year.
The resolution proceeds to the plenary session of the General Assembly, where we can expect its adoption in mid to late-December.

Human Rights Essay Prize

The Human Rights Committee of the Law Society has announced its annual essay prizes. First prize is EUR 1,000, and there are two second prizes of EUR 500 each. See the poster for more information: http://www.mediafire.com/?mattmjmxsjx

Protocol on Economic, Social and Cultural Rights Adopted

On 18 November, the Third Committee of the United Nations General Assembly adopted the draft protocol to the International Covenant on Economic, Social and Cultural Rights which establishes an international petition mechanism: http://www.un.org/News/Press/docs/2008/gashc3938.doc.htm. The Protocol has been under discussion for more than a decade. Many States have resisted it, arguing that economic, social and cultural rights are not justiciable. The Protocol still needs to be adopted by the plenary General Assembly, but this should be no more than a formality.

New Human Rights Research Tool

The Office of the High Commissioner for Human Rights has launched a useful new research tool, the Universal Human Rights Index: http://www.universalhumanrightsindex.org/. It is a compilation of United Nations documents, thoroughly indexed, that provides rapid access to conclusions and recommendations of the Human Rights Council special procedures (rapporteurs, etc.), concluding observations of treaty bodies and the comments of governments concerned about such observations. It looks to be of enormous assistance to researchers.

International Court of Justice to Proceed in Another Genocide Case

Yesterday the International Court of Justice voted, by ten votes to seven, to dismiss a preliminary objection of Serbia in a case filed by Croatia based upon provisions of the Genocide Convention (http://www.icj-cij.org/docket/files/118/14891.pdf?PHPSESSID=f8aeb621955464df41e48adfe68d4702) Croatia launched the case in mid-1999, although it concerns events that took place in 1991. Croatia’s suit seemed prompted by Genocide Convention-based cases filed against NATO countries by Serbia only weeks earlier. But in 2004, the Court dismissed the Serbian applications against NATO on the grounds that Serbia did not have ‘access to the Court’ in 1999. Serbia invoked the 2004 rulings, saying that if it couldn’t sue in 1999 then it couldn’t be sued either. A bare majority of the Court seems to have reconsidered that 2004 decision, this time ruling that Serbia was in fact properly before the Court in 1999.
There is another piece of this: the 2007 judgment of the Court in Bosnia v. Serbia. There the Court also dismissed Serbia’s objection based upon the 2004 ruling. The Court said the 2004 ruling, in Serbia v. NATO, didn’t apply to Bosnia v. Serbia, because a 1996 decision had already decided that Serbia was properly before the Court when Serbia was sued by Bosnia in 1993. Because the 1996 ruling had already settled the question, the Court could not return upon its decision in the 2007 judgment, even if the 2007 judgment seemed to contradict the 2004 judgment.
Confused? Imagine trying to explain this in Belgrade. It seems that whenever Serbia gets sued, the Court can hear the case. But when Serbia sues, the case is found to be inadmissible.
For a student of the Genocide Convention, this means we will have another Court judgment on the merits concerning the interpretation and application of the Convention. Croatia’s application would seem to stand on weak ground from a substantial point of view. It concerns the Serbia-Croatia war in 1991 which, while brutal enough, hardly compares with the Serbia-Bosnia war of 1992-1995. And in that latter conflict, the Court found that genocide had not been committed, with the exception of the Srebrenica massacre of mid-July 1995. The Court based itself largely upon the findings of the International Criminal Tribunal for the former Yugoslavia. If it does the same, it will quickly acknowledge that there have been no findings of genocide by the Yugoslavia Tribunal with respect to the 1991 war between Serbia and Croatia.
There is an oblique reference to the merits at the end of yesterday’s ruling. In paragraph 141, the Court writes:

As already noted above, since proceedings were instituted in this case, the Court has given judgment in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), (Judgment of 26 February 2007); and Serbia has relied
on that decision also in the context of the issue now under examination. In that case the Court found that there had been a “deliberate destruction of the historical, cultural and religious heritage of the . . . group [protected by the Convention]” (Judgment of 26 February 2007, para. 344). However, the Court found that “[a]lthough such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group, and contrary to other legal norms, it does not fall within the categories of acts of genocide set out in Article II of the Convention” (ibid.). As has already been indicated (paragraphs 52-56 above), this decision does not have the force of res judicata in the present proceedings, but the Court sees no reason to depart from its earlier finding on the general question of interpretation of the Convention in this respect. The Court will have to decide how these findings of law are to be applied, and what may be their effect in the present case.

The 2007 judgment in Bosnia v. Serbia confirmed that the Court would apply a relatively narrow and strict construction of the definition of the crime of genocide. These words in the recent decision on admissibility suggest that it is not likely to reconsider the approach.

Lubanga Trial will Start in January

Yesterday, a Trial Chamber of the International Criminal Court set 26 January as the start date for the much postponed trial of Thomas Lubanga, which will now begin approximately three years after he as taken into custody (http://www.icc-cpi.int/press/pressreleases/445.html). It will be the first trial to be held by the Court. Niamh Hayes was there yesterday, and sends this report:

I just spent the morning in the Lubanga Status Conference hearing at the ICC.
There were some pretty major developments, although I
don't know how much gossip had leaked out about it in advance. The prosecution
has made a complete turn-around and agreed to make all the confidential
information available, seemingly without restriction, to both the Chamber and
the defence. The Chamber have already had the chance to review it, and it will
be released to the defence later this week. As a result, the stay of proceedings
has been lifted and a tentative trial date has been set for 26 January. When I
left there was still an argument running about whether to allow temporary
release for Lubanga subject to his remaining in the Hague. There were some
fairly tart statements made by the defence about inexcusable delays due to the
prosecution acting in bad faith in relation to the Article 54(3)(e) material,
although the OTP obviously refused to take any responsibility whatsoever. I just
wandered in to the ICC on spec knowing that there was a status conference
scheduled, although I didn't expect to be there for such a major development! I
thought you'd like to know so you can put it up on the blog.

Niamh says she’s going to the Charles Taylor trial on Thursday, and will let us know if anything interesting is going on there.

Slavery Decision by ECOWAS Court

A few weeks ago, I posted an item about the decision in Hadijatou Mani Koraou c. la République du Niger by the Community Court of Justice of the Economic Community of West African States (ECOWAS), condemning Niger for tolerating the practice of slavery. I’ve obtained a copy of the judgment (French only): http://www.mediafire.com/?ckebod4ys1n
Thanks to Ann Carney.

German Criminal Code

Prof. Michael Bohlander has prepared an English translation of the German Criminal Code: http://www.gesetze-im-internet.de/englisch_stgb/index.html?

Violation of European Convention in 1956 Hungary Prosecution

The European Court of Human Rights has ruled that Hungary violated article 7 of the European Convention on Human Rights, which prohibits retroactive criminal prosecution: Korbely v. Hungary. The case concerned a Hungarian national convicted of crimes against humanity with respect to participation in the quelling of a riot or disturbance during the 1956 uprising.
The law in the judgment (and, apparently, in the ruling of the Hungarian courts) is somewhat confusing, because the European Court seems to muddle the distinction between serious violations of common article 3 to the Geneva Conventions and crimes against humanity. It treats a violation of common article 3 as a crime against humanity, which cannot be right.
There are interesting discussions of the threshold for a non-international armed conflict (hence, the application of common article 3), as well as the contextual elements of crimes against humanity. In particular, the Court seems to support the views of Cherif Bassiouni (with which I agree), by which a State policy is a requirement for crimes against humanity. However, Professor Bassiouni’s views are rather in the minority, and they are directly contradicted by case law of the International Criminal Tribunal for the former Yugoslavia (Kunarac appeal).
This is an example of a rather strict application of article 7 of the European Convention. For another recent example, see Kononov v. Latvia, about which I made comments in an earlier blog. Most of the European Court’s case law has been rather more generous to States. Recent examples are Kolk and Penart v. Estonia and Jorgic v. Germany. Older ones include the German border guards case and the British spousal rape cases. The International Criminal Tribunal for the former Yugoslavia has taken a similarly flexible approach to the retroactivity rule, following a tradition that dates back to Nuremberg.
For the judgment: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=72736&sessionId=15800243&skin=hudoc-en&attachment=true
Webcast of the hearing before the Grand Chamber: http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/Webcasts%20of%20public%20hearings/webcastEN_media?&p_url=20070704-1/lang/?

Employment at EU Agency for Fundamental Rights

I am told that the EU Agency for Fundamental Rights will be hiring as many as 200 people in the coming period. There will be many job opportunities for young professionals with post-graduate degrees in human rights. Check the website from time to time for information on this: http://fra.europa.eu/fra/index.php

Genocide Convention Commemorations

A few days ago, I posted an announcement about the commemoration ceremony for the 60th anniversary of the adoption of the Genocide Convention, to be held in Paris on 9 December 2008. Many other events are planned in various parts of the world.
Here is a partial list:
Athens, 12-13 November: http://www.mediafire.com/?g9jm1wxijsi
London, 2 December: http://www.doughtystreet.co.uk/seminars_events/seminar_event_details.cfm?iSeminarEventID=224
Marburg, Germany, 4-6 December: http://www.mediafire.com/?yyrt1lw1ryy
The Hague, 7-8 December: http://www.h-net.org/announce/show.cgi?ID=163342
Paris, 9 December:
Buenos Aires, 10-12 December: http://www.mediafire.com/?uvdfimm1zi9
Berne, 15 December: http://www.mediafire.com/?dcntjr1ymto
I have also heard of one in Moscow, on 17 December, and I think there is one in Israel during the week of 8 December.

Model Codes: Volume 2

Since 2001, the Irish Centre for Human Rights has been the focal point for the development of the 'model codes' for post-conflict justice. Volume 2 has just been published by the United States Institute of Peace: http://bookstore.usip.org/books/BookDetail.aspx?productID=170810. The authors are Vivienne O'Connor, who received her doctorate last year at the Irish Centre for Human Rights, and Colette Rausch.

UN Audiovisual Library of International Law

The United Nations Audiovisual Library of International Law was launched last week: http://www.un.org/law/avl/. It is described as 'a unique multi-media resource which is a core instrument for promoting a greater understanding of the essential role of the United Nations in the field of international law and the creation of a culture that is conducive to the rule of law'.
According to the announcement:

There are three main components: (i) the Lecture Series provides lectures by
eminent law scholars and practitioners from different countries on virtually
every subject of international ; (ii) the Historic Archives contains
introductory notes prepared by internationally recognized , audiovisual
materials recording the history of the negotiation and adoption of significant
legal instruments (e.g., the Charter of the United Nations, the Universal
Declaration of Human Rights, the Genocide Convention, and the Law of the Sea
Convention), the procedural history as well as text of the legal instruments and
other key documents; and (iii) the Research Library provides on-line library of
international law materials, including treaties, jurisprudence, United Nations
and legal publications as well as scholarly writings provided by HeinOnLine.

My modest contribution was the entry on the Genocide Convention.

Obama

Time will only tell how good President Obama will be for the progress of human rights. His agenda is cut out for him: close Guantanamo (and give it back to Cuba, while he's at it); ratify the Rome Statute of the International Criminal Court; get US troops out of Iraq; cut US assistance to Israel until it tears down the wall and withdraws from the west bank; provide all Americans with medical care; appoint some liberal judges to the Supreme Court who will abolish the death penalty. But even if he does none of the above, his election is of huge symbolic importance.
I've put up a few photos of African Americans who helped move the goal posts: Jackie Robinson, the first black to play in major league baseball. He joined the Brooklyn Dodgers in 1949 after a trial run with the Montreal Royals. The Dodgers manager had sent Robinson to Montreal to prepare him for the big move. Robinson lived among French Canadians, who welcomed him warmly in a manner still unthinkable if he had tried to live with white Americans. Thurgood Marshall, the first African-American judge of the United States Supreme Court. He was appointed in the 1960s, after leading epic judicial battles for equality as counsel for the National Association for the Advancement of Coloured People, including the historic Brown v. Board of Education decision that was the beginning of the end for segregation in education. And now, Obama.
This is a defining moment in the struggle against racial discrimination that has been so central to the modern human rights movement, both within the United States and internationally.

New President and Vice-President at Yugoslavia Tribunal

Judge Patrick Robinson (Jamaica) and Judge O-Gon Kwon (South Korea) were today elected as President and Vice-President of the International Criminal Tribunal for the Former Yugoslavia by the permanent judges in an Extraordinary Plenary Session. The appointments are effective 17 November 2008.
Thanks to Eadaoin O'Brien.

Abolition of the Death Penalty in Chinese

This is the Chinese translation of my book The Abolition of the Death Penalty in International Law, just published by the Chinese Law Press, which is said to be the top legal publishing house in China. It was translated by Zhao Haifeng, who worked at the Irish Centre for Human Rights some years ago, and who is now dean of the College of Law at the Harbin Technical University. The debate continues to progress in China, and it is my hope that gthe availability of books like this will influence opinion in the right direction. The translation was made possible by generous support from the Irish Department of Foreign Affairs.

Joint Criminal Enterprise at the Cambodia Tribunal

Last month, Prosecutors at the Extraordinary Chambers in the Courts of Cambodia pushed for the inclusion of the joint criminal enterprise theory of liability in the case against Kaing Guek eav, a.k.a. 'Duch', the former commander of Tuol Sleng prison (http://www.eccc.gov.kh/english/cabinet/courtDoc/129/CP_appeal_on_closing_order_Duch_D99_3_3_OCP_Appeal_EN.pdf) . 'Duch' is the youngest of the accused, aged 65, and is charged with crimes against humanity relating to the S-21 prison, a former school in Phnom Penh. In response to the Prosecutor’s appeal, the Pre-Trial Chamber issued several public invitations to particular individuals or organisations requesting amicus curiae submissions which would look at:
(1) the development of the theory of joint criminal enterprise and the evolution of the definition of this mode of liability, with particular reference to the time period 1975-9;
(2) whether joint criminal enterprise as a mode of liability can be applied before the Extraordinary Chambers, taking into account the fact that the crimes were committed in the period 1975-9 (See for example http://www.eccc.gov.kh/english/cabinet/courtDoc/138/D99_3_12_EN.pdf.)
Joint criminal enterprise has caused some controversy at the International Criminal Tribunal for the former Yugoslavia, partly because of its lack of a clear statutory basis and its weak foundations under customary international law, and it has been fairly definitively rejected in early rulings of the International Criminal Court. Its use at the Extraordinary Chambers should prove no less problematic given that the applicable law limits criminal responsibility to those who "planned, instigated, order, aided and abetted or committed" crimes and to those superiors who fail to prevent or repress crimes.
This week, the Pre-Trial Chamber received detailed amicus curiae briefs from the Centre for Human Rights and Legal Pluralism at McGill University (http://www.eccc.gov.kh/english/cabinet/courtDoc/165/D99_3_25_EN_McGil.pdf), Professor Cassese et al. (http://www.eccc.gov.kh/english/cabinet/courtDoc/163/D99_3_24_EN_Cassese.pdf) and Professor Ambos (http://www.eccc.gov.kh/english/cabinet/courtDoc/164/D99_3_27_EN_Ambos.pdf) . Professor Cassese argues that all three categories of joint criminal enterprise were recognised as customary international law in 1975-79, while Professor Ambos contends that this is only the case for the first category. The McGill submission notes the weakness of the supporting caselaw cited in the seminal decision of the International Criminal Tribunal for the former Yugoslavia (Tadic Appeals Chamber, 15 July 1999) but finds that 'there is some evidence to support the general existence of the third category of JCE already in the early years after the Second World War".
The Extraordinary Chambers may have enough issues to deal with under the principle of legality, without resorting to a particularly problematic doctrine that has very weak foundations under customary international law, probably even more so thirty years ago.
Thanks to Dr Shane Darcy, who prepared this note.

Genocide Conference in Paris on 9 December

The Genocide Convention was adopted in Paris on 9 December 1948. Many activities to commemorate this important event will be held in the coming weeks, including a conference in Paris to be held on 9 December: http://www.pressesdesciencespo.fr/evenements/?fa=event&event_id=41

Ugandan Arrest Warrants Being Reconsidered by Pre-Trial Chamber

The first arrest warrants issued by the International Criminal Court concerned the Situation in Uganda, and resulted from the self-referral by the Government of Uganda in December 2004. These arrest warrants, issued more than three year ago (first under seal, then publicly), have never actually been executed, and it is reported that probably two of the five suspects are now dead. In the meantime there have been significant developments in the Ugandan peace process. On 21 October 2008, the Pre-Trial Chamber responsible for the Situation in Uganda made an order under article 19(1) of the Rome Statute in which it decided to examine the admissibility of the cases: http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-320-ENG.pdf. This is the first time such a proceeding has ever been taken.
When it issued the arrest warrants in 2005, Pre-Trial Chamber II said that the cases appeared to be admissible, but made no detailed examination of the matter. In its order of 21 October 2008, the Pre-Trial Chamber points to political agreements that are part of the peace process, including their call for the establishment of special judicial mechanisms aimed at dealing with atrocities.
Of some note is a reference in the decision to the Appeals Chamber decision of July 2006, discussed in the previous entry in this blog. The Pre-Trial Chamber cites the Appeals Chamber as authority for its right to consider the issue of admissibility on its own motion.
What I am unclear about is where this all leads? If the Pre-Trial Chamber concludes that the cases are still admissible, it doesn’t advance things very much. It might just as well have ignored the issue. If, on the other hand, it concludes they are not admissible, what happens next? Article 58(4) says: ‘The warrant of arrest shall remain in effect until otherwise ordered by the Court.’ But this looks rather like the Pre-Trial Chamber considering an appeal of its own earlier decision to issue an arrest warrant. It is not obvious to me that it has the authority to do this under the Rome Statute, nor that it is wise for it to do this as a matter of judicial policy.

Laws of Gravity Finally Revealed by Appeals Chamber

In February 2006, a Pre-Trial Chamber of the International Criminal Court issued a ruling authorizing an arrest warrant of Thomas Lubanga Dyilo. Trial in this case was due to begin in June 2008, and is now postponed indefinitely. The February 2006 ruling contained an important discussion of admissibility issues before the Court, and has been much discussed and commented upon (and taught by lecturers like myself) since then. It was the only serious judicial pronouncement on the subject by a Chamber of the Court. Of particular note was its insistence upon the issue of ‘gravity’ as a factor in determining whether a case was admissible (see art. 17(1)(d)). That decision was never appealed because all concerned - the Prosecutor, the victims (or their representatives) and even the defendent himself - were delighted that the case would be transfered to The Hague.
What we have only learned in recent weeks is that on the same day in February 2006, the Pre-Trial Chamber dismissed another application for an arrest warrant, in the case of Bosco Ntaganda, on the grounds that it was not of sufficient gravity: http://www.icc-cpi.int/library/cases/ICC-01-04-02-06-20-Anx2-ENG.pdf. That decision was appealed by the Prosecutor, and overturned by the Appeals Chamber in July 2006: http://www.icc-cpi.int/library/cases/ICC-01-04-169-tFRA.pdf (note that on the Court’s website the French and English versions of the judgment are transposed, so for the time being one needs to click on ‘French’ in order to get the English version). A few weeks afterward the Appeals Chamber judgment, in August 2006, the same Pre-Trial Chamber issued an arrest warrant for Bosco Ntaganda, but under seal.
The Appeals Chamber decided to make its ruling public in late September 2008. The Appeals Chamber was dismissive of the theories advanced by the Pre-Trial Chamber about gravity, and dramatically reduced the significance (if any) of the gravity issue as a condition for admissibility of a case. It is an important decision in terms of the law of the Court. What a curious institution it is, to keep a truly seminal ruling of its Appeals Chamber on a key point of law a secret for more than two years!
The Ntaganda materials were kept under seal at the Prosecutor’s request. Now the Prosecutor says he suspects that Ntaganda knows of the arrest warrant, so there is no longer any point in the secrecy.
Keeping arrest warrants secret proved to be a rather questionable strategy at the International Criminal Tribunal for the former Yugoslavia, and I believe that it was soon abandoned, with perhaps a few exceptions. The opposite has been the case at the International Criminal Court, although as with the Yugoslavia Tribunal it does not appear to have produced very much. And of course we now have a very striking contrast in the application for an arrest warrant for the president of Sudan, which was made public even before being issued by the Pre-Trial Chamber. Probably publicity rather than secrecy is more helpful in bringing suspects to justice, as a general rule.

Unexplained (and Unacceptable) Delays at the International Criminal Tribunal for Rwanda

A year ago, in November 2007, the International Criminal Tribunal for Rwanda provided the Security Council with an update on its ‘Completion Strategy’ (http://69.94.11.53/default.htm). The Tribunal was about to complete a year in which only one judgment involving one defendant had been issued (not counting two judgments based upon guilty pleas), but it explained to the Security Council that decisions concerning nine defendants in six trials were in the pipeline, and would be issued within the first half of 2008 (see p. 21). This seemed an acceptable explanation at the time. But as of 1 July 2008, not one of the promised decisions had been rendered. A judgment involving one of the accused was issued in late September 2008. That’s it. Trial in one of the cases, known as ‘Military I’ (Bagosora et al.), finished in mid-2007, that is, sixteen months ago, and there is still no judgment. Bagosora has been in pre-trial detention since 1996!