Happy New Year!

Special Rapporteur for Human Rights in the Occupied Territories Condemns Israeli Airstrikes on Gaza Strip

The following statement was issued on Saturday by Prof. Richard Falk, who is United Nations Special Rapporteur for Human Rights in the Occupied Territories (http://www.unhchr.ch/huricane/huricane.nsf/view01/F1EC67EF7A498A30C125752D005D17F7?opendocument; the attacks were also condemned by the High Commissioner for Human Rights: http://www.ohchr.org/EN/NewsEvents/Pages/media.aspx):

The Israeli airstrikes on the Gaza Strip represent severe and massive violations of international humanitarian law as defined in the Geneva Conventions, both in regard to the obligations of an Occupying Power and in the requirements of the laws of war.

Those violations include:

Collective punishment – the entire 1.5 million people who live in the crowded Gaza Strip are being punished for the actions of a few militants.

Targeting civilians – the airstrikes were aimed at civilian areas in one of the most crowded stretches of land in the world, certainly the most densely populated area of the Middle East.

Disproportionate military response – the airstrikes have not only destroyed every police and security office of Gaza's elected government, but have killed and injured hundreds of civilians; at least one strike reportedly hit groups of students attempting to find transportation home from the university.

Earlier Israeli actions, specifically the complete sealing off of entry and exit to and from the Gaza Strip, have led to severe shortages of medicine and fuel (as well as food), resulting in the inability of ambulances to respond to the injured, the inability of hospitals to adequately provide medicine or necessary equipment for the injured, and the inability of Gaza's besieged doctors and other medical workers to sufficiently
treat the victims.

Certainly the rocket attacks against civilian targets in Israel are unlawful. But that illegality does not give rise to any Israeli right, neither as the Occupying Power nor as a sovereign state, to violate international humanitarian law and commit war crimes or crimes against humanity in its response. I note that Israel's escalating military assaults have not made Israeli civilians safer; to the contrary, the one Israeli killed today after the upsurge of Israeli violence is the first in over a year.

Israel has also ignored recent Hamas' diplomatic initiatives to reestablish the truce or ceasefire since its expiration on 26 December.

The Israeli airstrikes today, and the catastrophic human toll that they caused, challenge those countries that have been and remain complicit, either directly or indirectly, in Israel's violations of international law. That complicity includes those countries knowingly providing the military equipment including warplanes and missiles used in these illegal attacks, as well as those countries who have supported and participated in the siege of Gaza that itself has caused a humanitarian catastrophe.

I remind all member states of the United Nations that the UN continues to be bound to an independent obligation to protect any civilian population facing massive violations of international humanitarian law – regardless of what country may be responsible for those violations. I call on all Member States, as well as officials and every relevant organ of the United Nations system, to move on an emergency basis not only to condemn Israel's serious violations, but to develop new approaches to providing real protection for the Palestinian people.

New States and the Rome Statute

In 2008, three new entities declared independence: Kosovo, Abkhazia and South Ossetia. The claims of all three to statehood remain disputed, of course. The Kosovo issue is currently before the International Court of Justice, the result of a request for an advisory opinion from the United Nations General Assembly (http://www.icj-cij.org/docket/index.php?p1=3&p2=4&code=kos&case=141&k=21).
Prior to the declarations of independence, all three territories belonged to States that were parties to the Rome Statute. As a result, crimes committed on their territory or by their nationals are subject to the jurisdiction of the International Criminal Court. My question is: what happens if they become independent?
Whether or not they are independent States involves complex questions of both law and fact. Presumably the International Court of Justice will give us some guidance on this in the Kosovo advisory opinion. Given that declarations of independence often correspond to zones of armed conflict or civil disturbance, it seems fairly probable that such developments will be associated with allegations of crimes within the jurisdiction of the Court. And that means that judges of the International Criminal Court may have to decide whether a State is genuinely independent or not in deciding whether the Court actually has jurisdiction (art. 19(1)).
The Rome Statute is silent on the subject of succession to treaties. Presumably, under general rules of international law when a State breaks away from another, a declaration of succession is required. This is what happened when Montenegro separated from Serbia. The list of States Parties to the Rome Statute on the website of the depositary indicates that Montenegro became a State Party through a declaration of succession (see http://www.icc-cpi.int/asp/statesparties/country&id=107.html).
To my knowledge, no such action has been taken by Kosovo, or by the two Georgian breakaway States. Does this mean that if they have indeed successfully declared independence, the International Criminal Court no longer has jurisdiction over their territory or their nationals?
Any insights into this problem from readers of the blog would be welcomed.

Human Rights Committee Decision Condemns Implementation of Security Council Counter-terrorism Sanctions by Belgium

In Views issued following its November 2008 session, dated 9 December 2008, the United Nations Human Rights Committee has found Belgium to be in breach of the International Covenant on Civil and Political Rights for its implementation of sanctions adopted by the United Nations Security Council (http://www.mediafire.com/?n3zixsp0i3x). The two applicants, who were suspected of being El Qaeda sympathisers, had their assets frozen and found themselves unable to travel as a result of being placed on the blacklist.
In particular, the travel ban – to which Belgium had apparently objected, but felt itself obliged to enforce – constituted a violation of article 12 (freedom of movement) in that it prevented the applicants from leaving the country. Public dissemination of the names of the two applicants on the blacklist constituted a violation of article 17 (right to privacy). There are several individual and dissenting opinions, including dissents by Ruth Wedgwood and Ivan Shearer.
Security Council sanctions seem to defy the rule of law. So it is a welcome development that the United Nations Human Rights Committee has deemed itself authorised to examine the violations that result from their implementation. The decision joins a growing body of material challenging the way the sanctions are imposed, emanating from the European Court of Justice and the Parliamentary Assembly of the Council of Europe.
The decision is only available in French at present, and doesn’t seem to be posted on the website of the Office of the High Commissioner for Human Rights. It is currently being translated into English.

Further Progress towards Abolition of Death Penalty Shown in UN General Assembly Resolution

Yesterday the United Nations General Assembly adopted a resolution calling for a moratorium on the death penalty, with a view towards eventual abolition. The voting results are significantly stronger than they were last year, when the resolution was adopted for the first time. Yesterday, the resolution was adopted by 106 votes in favour, compared with 104 votes in favour in 2007. Votes against totalled 46, compared with 54 last year. Abstentions increased to 34, five more than last year.
The results of the resolution simply confirm the continued progression towards abolition of capital punishment worldwide. According to Amnesty International, 137 of the 192 United Nations Member States may be considered abolitionist, either in law or in practice. Approximately 2-3 States abolish the death penalty each year, a trend that exists for more than twenty years. If this continues, the death penalty will disappear in twenty-two years, that is, by 2030.

Immunity Decision in Karadzic Case

The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia hearing the Karadzic case issued a ruling on Wednesday granting in part a defence motion seeking disclosure of potentially exculpatory documents relating to an alleged defence of immunity (see http://www.icty.org/case/karadzic/4#tdec). Karadzic has claimed that in July 1996 American diplomat Richard Holbrooke promised him immunity from prosecution if he would withdraw from public life. He says the Prosecutor may have relevant information in his possession, and he wants it disclosed.
The Trial Chamber writes (at para. 17): ‘According to customary international law, there are some acts for which immunity from prosecution cannot be invoked before international tribunals.’ Furthermore (at para. 25), ‘The Trial Chamber considers it well established that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law.’
I think this may be overstating things.
In support, the Trial Chamber cites article 7(2) of the Statute, and similar provisions in other statutes of international criminal tribunals. These texts deal with a defence of official capacity, which is not quite the same thing as immunity. Basically, the defence of official capacity is relevant to prosecutions under national law where a defendant claims he or she was not acting as an individual but rather as an agent of the State. It has been rejected since Nuremberg.
But immunity is different. It involves an argument that a tribunal is without jurisdiction out of respect for the sovereignty of some other authority. Thus, as the International Court of Justice has made clear, the courts of a State cannot exercise jurisdiction over the head of State of another country, whatever the crime, and even in the case of genocide and crimes against humanity.
But what about international tribunals? The fallacy of the absolute statement by the Trial Chamber can be seen in article 19 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. According to article 19, in the event that the International Criminal Court seeks to prosecute a United Nations official who benefits from immunity, the United Nations agrees to cooperate in waiving the immunity. But this would be unnecessary if there was no immunity anyway, as the Trial Chamber of the Yugoslavia Tribunal seems to claim. How can the United Nations agree to waive something it doesn't have in the first place?
When the Negotiated Relationship Agreement was being drafted, Belgium proposed an amendment that affirmed the premise that there was no immunity before international tribunals for international crimes (‘Proposal submitted by Belgium concerning document PCNICC/2000/WGICC-UN/L.1’, PCNICC/2000/WGICC-UN/DP.18, art. 8) but it was withdrawn and replaced with the current article 19.
The argument is important to the extent it concerns heads of State and others who might enjoy immunity when faced with the International Criminal Court. Article 27(2) of the Rome Statute says they have no immunity. But article 27(2) is a treaty provision and it only binds States that have ratified the treaty. In other words, article 27(2) cannot apply to heads of State of countries that have not joined the International Criminal Court. The result must be, in my opinion, that they still have immunity before the International Criminal Court, even for genocide, crimes against humanity and war crimes. This is because the Rome Statute cannot take away from them something to which they are entitled under customary international law.
In my view, the argument that Karadzic is without immunity before the Yugoslavia Tribunal should not be based on the proposition that there is no immunity before ‘international courts’ for such crimes. Rather, it is an implicit consequence of the creation of the Tribunal by a Security Council resolution pursuant to Chapter VII of the Charter of the United Nations. But I would be prepared to bet money on the proposition that the Legal Adviser to the United Nations considers that United Nations officials still enjoy immunity from the Yugoslavia Tribunal unless this has been formally waived.

Religious Legal Traditions: Hashemi Book Launch at Irish Centre

Kamran Hashemi’s book, Religious Legal Traditions, International Human Rights law and Muslim States, published by Martinus Nijhoff (http://www.brill.nl/product_id29152.htm) was launched yesterday at the Irish Centre for Human Rights. Dr Hashemi obtained his PhD at the Irish Centre for Human Rights, and the book is based on its doctoral thesis. The book includes a very nice introduction by Prof. Abdullai An-Naim, of Emery University. Kamran has returned to his job as an Iranian diplomat, and he is active in education at the foreign ministry in Tehran. The book is a very important contribution to the literature on the interface between Islamic law and traditions and contemporary human rights norms. The photo at the book launch shows Kamran, Dr. Ray Murphy and myself.

Human Rights Teaching Job in China

The Danish Institute for Human Rights seeks an international guest lecturer on a consultancy basis to teach a number of human rights classes in a newly established human rights course for students in North-East Normal University, Changchun, China. The 36-hour courses, which will be taught in English, include Introduction to International Human Rights, Human Rights and Development, Business and Human Rights and International Humanitarian Law. The four courses will be taught in the spring (March to July) and fall (September to January) semesters of 2009. In addition, the foreign teacher should help the students organise model human rights courts and debates. The programme offers a competitive salary (subject to seniority and qualifications, as well as tax regulations), accommodation at the College campus grounds and coverage of travel and other costs.
Qualifications include: PhD degree and some experience in teaching the related fields, as well as good knowledge of human rights. Good English language skills; knowledge of Chinese would be an asset but is not a prerequisite.
Application with CV and documentation to be sent to The Danish Institute for Human Rights, Strandgade 56, DK 1401 Copenhagen K Application date: 15 January 2009
Contact: Lone Lindholt (lli@humanrights.dk, tel. +45 32698841) or Hatla Thelle (hth@humanrights.dk, tel. +45 32698849).

Against the Death Penalty

Jon Yorke of the University of Surrey has just published Against the Death Penalty, International Initiatives and Implications, with Ashgate. This edited collection includes essays on developments within the United Nations, the Council of Europe, the African Commission and the Commonwealth Caribbean, engaging with the emergence of regional norms promoting collective restriction and renunciation of the punishment. Contributions investigate perspectives and questions for retentionist countries, focusing on the United States, China, Korea and Taiwan, and reveal the iniquities of contemporary capital judicial systems. Emphasis is placed on the issues of transparency of municipal jurisdictions, the jurisprudence on the ‘death row and the changing nature of public opinion. The volume surveys and critiques the arguments used to scrutinize the death penalty to then offer a detailed analysis of possible replacement sanctions.
See: http://www.ashgate.com/default.aspx?page=637&calcTitle=1&title_id=10402&edition_id=11394

Gravity: Are Lives of Civilians not as Important as those of Peacekeeping Troops?

Although instructed by the Appeals Chamber of the International Criminal Court not to address issues of gravity with respect to admissibility of a case when an arrest warrant is being issued (see Prosecutor v. Ntaganda (Case No. ICC-01/04), Decision on the Prosecutor's Application for Warrants of Arrest, Article 58, 13 July 2006), the recent application for arrest warrants with respect to Sudanese rebels who attacked peacekeepers contains an interesting discussion of the matter (see: Situation in Darfur, The Sudan (ICC-02-05-162), Summary of the Prosecutor's Application under Article 58, 20 November 2008, para. 7). The justification comes from the introductory paragraph of article 8 of the Rome Statute: ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’. The Prosecutor says this phrase should not be construed narrowly, the issues of the nature, manner and impact of the attack are critical’.
The pending application alleges an attack intentionally directed at international peacekeepers, resulting in 12 deaths and 8 severe injuries, as well as property damage. The application insists upon the importance of the crime of intentionally directing attacks against peacekeepers. It is noteworthy that this crime is one of the innovations in the Rome Statute.
The discussion makes an interesting contrast with the statement issued by the Prosecutor on 9 February 2006 explaining his decision not to proceed with investigations in the case of willful killings committed by British troops in Iraq. He said: ‘The number of potential victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions…’
The strictly quantitative focus of the Office of the Prosecutor at the time was also reflected in public statements explaining why arrest warrants had been issued against the rebel Lord’s Resistance Army leaders but not against military officials of the Ugandan forces.
This new appreciation that issues of gravity in case selection have a qualitative as well as a quantitative dimension is welcome. Perhaps it is now time to revisit the Iraq situation. There is an arguable case that killing innocent civilians as a consequence of an aggressive war in violation of the Charter of the United Nations is also a serious matter, perhaps just as serious as killing a comparable number of peacekeepers. Killing civilians was a war crime long before anybody had given any thought to special criminalization of attacks on peacekeepers.

Nottingham Student Conference on Freedom of Expression

The Human Rights Law Centre at the University of Nottingham will old its 10th Annual Student Human Rights Conference on 14 March 2009. This conference aims to discuss a number of issues around freedom of expression, taking the conceptualisation of the term ‘expression’ beyond thoughts and the written and spoken word, to consider who we are and how we express ourselves, for instance in terms of religion, sexual orientation and gender identity, through the use of the arts and media and new technologies. This conference also wishes to address current concerns about freedom of expression and national security, the defence of human rights and the role of non-state actors. How do these concepts cross and blur the boundaries of international law? How do they challenge our perception of private and public domain? Are the voices of minorities able to reach out? Are different views and forms of expression adequately represented and protected by human rights law? Can some forms of expression, such as one’s sexual orientation and/or gender identity, clash with other rights, for instance resulting in ‘defamation of religion’? Is freedom of expression in a crisis and under attack from all angles? Or is this just the natural development of an ever so controversial right? Papers are invited on the subject of human rights in relation to any of the themes advertised in the attached call for papers. Deadline for submission is 11 January 2009 using the attached application form, which is also available on the Student Activities pages of HRLC website: http://www.nottingham.ac.uk/law/hrlc/student-activities/index.php. Please address any enquires to the Conference Committee: HumanRightsConference@nottingham.ac.uk,

Death Penalty Project website

The Death Penalty Project announces the launch of its new website, It provides information about the Death Penalty Project, its supporters and its activities, and links to partner organisations and NGOs in Africa and the Caribbean. It includes a fully citated legal resources database, containing a comprehensive list of legal authorities/case law [some dating back to the ninetieth century] with detailed head notes for those wishing to obtain jurisprudence on criminal, constitutional and international points of law. Using the simple search facility, interested parties can speedily obtain case references per subject matter and in some cases judgments although copyright restrictions prevent us from offering access to all of the authorities. Each case has been carefully analysed and indexed according to a number of categories, including date, jurisdiction, and features of importance in each case. http://www.deathpenaltyproject.org

Genocide Response for American Policy Makers

On the eve of the sixtieth anniversary of the Genocide Convention, a high level task force chaired by Madeline Albright and William Cohen, has issued a report entitled ‘Preventing Genocide: A Blueprint for US Policymakers’. http://www.usip.org/genocide_taskforce/report.html. It includes many very helpful suggestions about preventing genocide – an objective, by the way, about which there is not really much controversy.

Using carefully chosen but nevertheless unambiguous language, the report entertains the option of unilateral US military intervention to prevent genocide.
I have been attending many Genocide Convention commemorations in recent days, and this is certainly not the first time I have heard calls for military intervention to prevent genocide even in the absence of authorisation from the United Nations Security Council. At a recent conference in London, I heard speakers explain that genocide in Darfur could be averted if only the US would send military helicopters and other ‘assets’.
Scary stuff. To paraphrase the Irish writer Brendan Behan (see photo), there is no human situation so miserable that can’t be made worse by the presence of the US military (Behan said 'by the presence of a policeman'). Sending the US army to prevent genocide seems like killing the patient to cure the illness.

Last year, the International Court of Justice issued an important judgment on genocide (Bosnia v. Serbia) in which it blamed Serbia for failing to exert influence on the Bosnia Serbs in order to prevent genocide in Srebrenica. The ICJ was not calling for Serbia to intervene militarily, to send helicopters, to establish no-fly zones. Indeed, I'm sure that if anyone had suggested that the Serbian military intervene in Bosnia in July 1995 there would have been sharp words (to say the least) from NATO. The point is that the kind of intervention the ICJ was calling for from Serbia was something other than military intervention.

The current debate about the 'responsibility to protect' vulnerable populations from genocide (and crimes against humanity, war crimes and ethnic cleansing) would be more productive if there was less sabre-rattling and more useful proposals concerning non-military forms of intervention.

More on Bikindi Decision at Rwanda Tribunal

One of the readers of the blog has submitted a comment in response to my entry on the Bikindi judgment of the International Criminal Tribunal for Rwanda, issued earlier this week. See below.
On closer reading of the judgment, it seems that the Trial Chamber may well have decided that Bikindi was guilty of 'direct and public incitement' because it did not think it could establish a causal link between the words he pronounced and acts of genocide.
I find some ambiguity in the judgment on this point. The core of the conviction reposes on Bikindi's behaviour when he participated in a convoy of interahamwe (the racist militia) vehicles, in June 1994.
The Trial Chamber accepted the evidence of a witness who said that Bikindi exhorted people from a loudspeaker, saying: 'You sons of Sebahinzi, who are the majority, I am speaking to you, you know that the Tutsi are minority. Rise up and look everywhere possible and do not spare anybody.' (para. 268). 'The witness also testified that on the way back from Kayove, Bikindi stopped at a roadblock and met with leaders of the local Interahamwe where he insisted, “you see, when you hide a snake in your house, you can expect to face the consequences.” After Bikindi left the roadblock, members of the surrounding population and the Interahamwe intensified their search for Tutsi, using the assistance of dogs and going into homes to flush out those still hiding. Witness AKK stated that a number of people were subsequently killed, including Father Gatore and Kalisa.' (ibid). The Chamber accepts AKK's evidence.
At the conclusion of its discussion of this incident, the Chamber writes:
'281. For the reasons above, the Chamber finds that the Prosecution has proven beyond reasonable doubt that towards the end of June 1994, in Gisenyi préfecture, Bikindi travelled on the main road between Kivumu and Kayove in a convoy of Interahamwe and broadcast songs, including his own, using a vehicle outfitted with a public address system. When heading towards Kayove, Bikindi used the public address system to state that the majority population, the Hutu, should rise up to exterminate the minority, the Tutsi. On his way back, Bikindi used the same system to ask if people had been killing Tutsi, who were referred to as snakes.'
I think that when you take paragraph 268 ('Witness AKK stated that a number of people were subsequently killed'), and read it with the concluding paragraph, 281, you have the link between words and deeds.
In any case, surely it makes more sense to treat the genocide on a larger scale, whereby an individual who is inciting genocide in Rwanda during June 1994 is guilty of inciting a genocide that actually takes place. Sheer common sense makes the link. In Nahimana et al., the case dealing with Radio-télévision mille collines, there was no requirement of evidence that any specific crime had been committed because any specific killer had listened to a specific radio broadcast.
But assuming that the Trial Chamber did in fact convict Bikindi for 'direct and public incitement' in the absence of evidence that he actually incited anybody to perpetrate genocide, surely the sentence of fifteen years' imprisonment is grossly excessive. In my research into national legislation implementing the Genocide Convention, I have noted that several countries set maximum sentences of five or ten years for the inchoate incitement offence. Imposing a fifteen-year sentence is only justifiable if the Chamber really believed that Bikindi's speeches were more than the empty words of a fanatic, and that they actually led to loss of life.

Harun Interview in Guardian

There is an interesting interview with Ahmed Harun, who is one of the two Sudanese accused by the International Criminal Court, in today's Guardian: http://www.guardian.co.uk/world/2008/dec/04/sudan-darfur-human-rights-war-crimes
Thanks to Joe Powderly.

Nuremberg Courtroom Venue for Talk on Genocide Convention

In November, I had the honour of speaking in Courtroom 600 in the Nuremberg Palace of Justice. This is where the famous post-war trials took place. The courtroom is still in use today. My talk was entitled: ‘From the Holocaust to the Genocide Convention: A Human Rights Learning Process’: http://www.mediafire.com/?mmitizdqtbi

Direct and Public Incitement to Genocide Conviction by Rwanda Tribunal

The International Criminal Tribunal for Rwanda yesterday issued a judgment in the Bikindi case (http://69.94.11.53/default.htm). A year ago, the Tribunal promised the Security Council that this judgment would be issued in the first half of 2008. Seven other judgments promised for the first half of 2008 have still not been issued.
Bikindi is particularly interesting because it involves a popular singer, whose compositions were alleged to have contributed to the genocidal hysteria in Rwanda in 1994. Bikindi was convicted by the Trial Chamber, but for only one count, and sentenced to fifteen years’ imprisonment. He gets credit for about seven and a half years of preventive detention, and should be eligible for release on parole within two and a half years.
The Chamber concluded that in June 1994 Bikindi had participated in a motorcade of the racist interahamwe militia, and that he personally incited people to exterminate Tutsi.
Bikindi is convicted of the crime of ‘direct and public incitement to commit genocide’. This is a legal error. The crime of ‘direct and public incitement’ is a very special formulation, meant to capture forms of incitement when genocide does not in fact take place. When genocide takes place, the correct charge is simply ‘incitement’. It need not be direct or public, as long as genocide is actually incited.