PhD studies in human rights: Violation of European Convention in 1956 Hungary Prosecution

Thursday, 13 November 2008

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/?

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William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

PhD studies in human rights

Thursday, 13 November 2008

Violation of European Convention in 1956 Hungary Prosecution

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