Saturday, 29 March 2008

CIA Renditions, Security Council Blacklists

I spent yesterday attending a fascinating conference in Athens on human rights and counter-terrorism measures, jointly organised by the Parliamentary Assembly of the Council of Europe and the Marangopoulos Foundation for Human Rights ( The stars of the conference were the Swiss senator, Dick Marty, and his key researcher, Gavin Simpson (who, incidentally, worked with me on the Sierra Leone Truth and Reconciliation Commission, where he was as indispensable to our activities as he has been to Senator Marty.
The two of them described their fascinating detective work, tracing the rendition flights throughout Europe with the help of a network of plane-spotters and more than a few ‘whistle-blowers’. It is an amazing dimension of human rights work that we rarely hear about. The very detailed and convincing reports that they prepared are available on the website of the Parliamentary Assembly:
The afternoon session, at which I spoke, focused on the issue of blacklists. These are authorised by the Security Council, in a series of resolutions, which pretty much puts them out of the reach of judicial review. According to Senator Marty, everyone on the blacklists is a Muslim. The consequence of being put on a blacklist is that your assets are frozen, and you cannot travel. Senator Marty has also done a great report on this subject, which reviews the frustrating attempts to convince courts to step in and impose a bit of rule of law on the UN Security Council:
Gavin is now based in New York, where he is working as a consultant for One World Research, which says it conducts ‘public interest investigations and human rights research:

Thursday, 27 March 2008

Dr David Keane: Yet another book award for ICHR PhD graduate

Dr David Keane, who is now a lecturer at Brunel University, was awarded the book prize of the Socio Legal Studies Association at its 2008 Conference dinner in Manchester Town Hall last Wednesday night. David's book, Caste-Based Discrimination in International Human Rights Law, was published last year by Transnational Publishers. It is based on his thesis at the Irish Centre for Human Rights, which was supervised by Prof. Joshua Castellino. Several of our students participated in the Conference, presenting papers on their own research, and they were on hand to congratulate David for this great achievement. David was one of our first LLM students, and he continued on to do a PhD with us. Bravo, David!

Wednesday, 26 March 2008

Darfur, Uganda, Conflict and the International Criminal Court

The Royal African Society has published a very interesting collection of papers on the activities of the International Criminal Court in Africa:
Thanks for this to Paul Williams and Fannie Lafontaine.

Easter Break in Cyprus

Well, it isn’t really Easter in Cyprus (the Greek Orthodox Easter comes in late April this year), but at least a few people from Ireland took the opportunity for a vacation break. Here I am with my family in the mountain village of Arsos, where my father in law was born more than 90 years ago. That’s him on the left, in the house where he grew up and where we stay when we visit, together with my wife Penelope, myself, our daughter Marguerite and our eight-month old grandson Thomas William (Tommy). The fellow with the tie is our neighbour, Irish Senator David Norris, who owns a home in Arsos a few streets away (there only are a few streets in Arsos).

Bush Lost this Case, Unfortunately…

Yesterday, the United States Supreme Court ruled in favour of Texas and against the federal government in a case involving the implementation of the judgment of the International Court of Justice known as the Avena case ( Avena was the third such application to the International Court of Justice on behalf of foreign nationals who had been sentenced to death in the courts of the United States without having received the notice of their entitlement to consular assistance, something required by international treaty. Some US states have taken the view that the judgment of the International Court of Justice does not bind them, and the Supreme Court of the United States has backed them up.
According to an editorial in the Wall Street Journal: ‘Devotees of using foreign law to overrule American politicians will squawk. But the Medellín majority has delivered a victory for legal modesty and the U.S. Constitution.’ (see:
I never thought I would be upset if Bush lost a case in court but, as Yogi Berra once said, ‘never say never’.
For more on this, see the symposium of the Suffolk Transnational Law Review: The articles were written before the judgment, and with a view of perhaps influencing the thinking of the Court. Unfortunately, the Court moved more quickly than the journal.

Genocide of Australia’s ‘lost generation’

Readers of this blog know that I am not particularly tolerant of extravagant use of the term ‘genocide’. For several years, a debate has been underway in Australia as to whether the ‘g-word’ should be used to describe the forced transfer of aboriginal children to families of European origin. Australians call this the ‘lost generation’. Thanks to Sophie Cacciaguidi-Fahy for this recent account in an Australian newspaper:,25197,23421344-2702,00.html. In principle, the Genocide Convention excludes acts of ‘cultural genocide’, that is, acts falling short of the physical extermination of a group. But there is one exception, the ‘forced transfer of children from one group to another’. The words of the Convention bear a striking resemblance to what happened in Australia. The real issue, then, is whether this was done with ‘intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such’. In my view, the Australian debate is certainly not one belonging to the frivolous category of allegations of genocide.
There are Australian cases on this issue: Nulyarimma v. Thompson, [1999] FCA 119; Kruger v. Commonwealth (‘The Stolen Generations Case’), (1997) 190 CLR 1. And quite a body of academic literature: Ben Saul, ‘The International Crime of Genocide in Australian Law’, (2000) 22 Sydney Law Review 527; Andrew Mitchell, ‘Genocide, Human Rights Implementation and the Relationship Between International and Domestic Law’, (2000) 24 Melbourne University Law Review 15; Sean Peters, ‘The Genocide Case: Nulyarimma v Thompson’, [1999] Australian International Law Journal 233; Sarah Joseph, ‘Kruger v Commonwealth: Constitutional Rights and the Stolen Generations’, (1998) 24 Monash Law Review 486; Michael Schaefer, ‘The Stolen Generations -- In the Aftermath of Kruger and Bray’, (1998) 21 University of South Wales Law Journal 247; Tony Buti, ‘Kruger and Bray and the Common Law’, (1998) 21 University of South Wales Law Journal 231; Matthew Storey, ‘Kruger v The Commonwealth: Does Genocide Require Malice?’, (1998) 21 University of South Wales Law Journal 224.
We’ll be discussing this and other related questions at our annual doctoral seminar, which begins next Monday at the Irish Centre for Human Rights.

Wednesday, 19 March 2008

Universal Periodic Review Set to Begin

I am in Geneva today, attending the Human Rights Council session. Something very exciting is about to begin. I am referring to the Universal Periodic Review process, which was originally called for by Kofi Annan in his report entitled In Larger Freedom.
A first group of countries, including India, the UK, Bahrain and others is scheduled to begin presenting their reports as part of the Universal Periodic Review process in two weeks. Check out the website for this:
The country itself submits a report. The Office of the High Commissioner prepares a brief compilation of UN materials on the country, including material from the special rapporteurs and so on. And they also prepare a 'stakeholders' summary, which is UN speak for what we mere mortals know as non-governmental organisations (well, it includes national commissions too). All of it is available on the website. I am told that they also post the submissions by NGOs, but I couldn't find this.
These documents constitute a fabulous resource for studying the human rights situation in a given country. Over the next four years, every State will have to submit. The basis is human rights obligations in the UN Charter, the Universal Declaration of Human Rights and specific treaties. Which means just about everything. In other words, the US will have to talk about economic and social rights (even though it has refused to ratify the International Covenant on Economic, Social and Cultural Rights), and China will have to talk about the death penaltz (even though it has not ratified the International Covenant on Civil and Political Rights).
The next big step is the actual presentation of the reports, which will be shown live on the UN website. We will see how robust the discussion is, and whether it really puts the country on the spot. When the UK comes up, on 10 April, the test will be to see whether it makes the first few pages of The Guardian and The Times. We will expect to see the government being grilled about using Diego Garcia and other places for CIA rendition flights. There is no issue of jurisdiction, really, although I'd be surprised if anyone asks the British about Iraq.

Seromba Overturned on Appeal, but Where is the Trial Chamber Judgment?

Last week, the Appeals Chamber of the International Criminal Tribunal for Rwanda granted the prosecution appeal in the case of Athanase Seromba. Seromba was a priest who had participated in the massacre of several thousand Tutsi, who had sought refuge in his church. He encouraged a bulldozer operator to knock down the church, with the victims inside. But Seromba was only convicted for 'aiding and abetting' genocide, and he received a relatively short custodial sentence from the Trial Chamber.
The Appeals Chamber changed the conviction, describing Seromba as 'committing' the crime and not just 'aiding and abetting'. It also upped the sentence to life imprisonment.
I had looked regularly on the website for the Trial Chamber decision since it was issued in 2006, as part of research for the second edition of my book Genocide in International Law, due to appear later this year. But it has never appeared on the website. This week, in The Hague, I picked up rumours to the effect that the Trial Chamber judgment was not posted on the Tribunal website out of deference to the Church, which is shocking. It seems that the Roman Catholic Church, embarrassed by the role of one of its priests in the Rwandan genocide, attempted to pressure the Tribunal in various ways, including by directly contacting judges of the Tribunal. I cannot prove this. But the Trial Chamber judgment in Seromba remains unavailable. I believe it is the only judgment of any of the three ad hoc United Nations tribunals that cannot be obtained on the official website. In the absence of any other explanation, I am inclined to accept the version from The Hague rumour mill. Seromba fled RWanda following the genocide, and was arrested at the requestn of the Tribunalin Florence, Italy.
A couple of legal notes of interest. This is the first judgment of the Appeals Chamber to clarify the scope of the term 'committing'. The judges give it a very broad meaning. This is in line with some case law that uses the term 'co-perpetration', rather than the controversial 'joint criminal enterprise'. This debate is not directly refelcted in the judgment, which avoids the troublesome terminology. But it is implicit in the ruling. The Appeals Chamber decision increases the gravity of the conviction as well as the sentence. The President of the Tribunal, Fausto Pocar, has frequently criticized this as inconsistent with human rights standards. According to President Pocar, because there is a right to appeal a conviction, the Appeals Chamber cannot 'convict'; rather, it should remit such cases back to the Trial Chamber for a new ruling. President Pocar, who served for many years as a member of the United Nations Human Rights Committee, did not participate in the Seromba decision.

Tuesday, 18 March 2008

Drugs and human rights

Rick Lines, a Galway alumnus who is senior policz advisor at the International Harm REduction Assocaition, reports on activities at the United Nations Office on Drugs and Crime. At the 51st session of the UN Commission on Narcotic Drugs (CND) in Vienna, the head of the ODC, Antonio Maria Costa, spoke out against the death penalty in his opening address:
Rick's organisation was very active in pressing the first ever human rights resolution through the Commission on Narcotic Drugs. Rick says unfortunately much of the decent language in the original draft (including a death penalty reference) was eventually stripped out or watered down before it was approved: Rick addressed the full plenary session and discussed human rights issues:

Michael Kearney awarded Lieber Prize Certificate of Merit bz ASIL

Dr Michael Kearney, who completed his doctorate with us and is now a lecturer at the University of York, has been awarded one of two Certificates of Merit as part of the Lieber Prize of the American Society of International Law, for his book The Prohibition of Propaganda for War in International Law (Oxford University Press, 2007). The book is based on his doctoral thesis. It has a preface by Judge Richard Goldstone (who will be back in Galway on June 27 to receive an honorary doctorate). Congratulations, Michael, on this fabulous achievement. Michael's thesis was supervised by Dr Kathleen Cavanaugh.

Monday, 17 March 2008

Peace Palace Library

I am in The Hague for a few days, and I had a wonderful visit this morning to the Peace Palace Library. This is the library of the International Court of Justice, located in the iconic building paid for by Andrew Carnegie a century ago (I wish we had another Andrew Carnegie who could build something for the ICC to replace the miserable office building where it is now located).
The Library was previously located in the old part of the Palace, but for about a year now it has been in fabulous new premises. The reference librarian, Francisca Markx-Veldhuijzen, very gratiously showed me around the premises today.
Even if you can’t get to The Hague regularly, students of human rights law, and international law generally, will find much of value on the website of the Peace Palace Library: You can search the collection on line, then either find the book in a library closer to home, or make an interlibrary loan. The keyword search includes periodical articles. And they have also prepared specialised bibliographies, that are of great practical use.

Mohamed El Zeidy to Publish ‘The Principle of Complementarity’

Dr. Mohamed El Zeidy, who graduated from our programme last year and who is now working in Chambers at the International Criminal Court, will publish a monograph based upon his PhD thesis with the distinguished international house Brill/Martinus Nijhoff. It will represent an important addition to the literature on the Court. You can order for 100 euro this from

Sunday, 9 March 2008

Louise Arbour Will be Missed in Geneva

Nine years ago, I wrote an op-ed in the Canadian newspaper National Post entitled 'Louise Arbour Will be Missed in The Hague'. I spoke of her three years of exceptional service as Prosecutor of the international criminal tribunals for the former Yugoslavia and Rwanda. She left the international sphere to take up a prestigious position as Justice of the Supreme Court of Canada. In 2003, Secretary-General Kofi Annan managed to lure her back to the United Nations, apparently after an initial refusal. She has been an extraordinary High Commissioner, and only the enemies of human rights can be pleased about her decision not to stand for a second five-year term. Louise says it is a personal decision and I think we all must respect such a choice, coming from someone who has given eight years of her life to what is very difficulty and demanding work. But we are sad to see her go, and she will be hard to replace.
We have been lucky, so far, to have such fine High Commissioners for Human Rights. The first to hold the office was rather lacklustre. The Mary Robinson took on the job, and she was followed by Sergio Vierra de Mello, who lost his life to an assassin in Baghdad in August 2003. The interim between Sergio Vierra de Mello and Louise Arbour was assured by Bertie Ramcharan, one of the great human rights professionals of our time. By the way, there is a fascinating new book on the life of Sergio Vierra de Mello, by Samantha Power: Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World. There is also a new book of speeches by Mary Robinson, edited by Kevin Boyle: Mary Robinson, A Voice for Human Rights, Philadelphia, Penn, 2006. See my review in (2008) 30 Human Rights Quarterly 209-211.
Two years ago the National University of Ireland gave Louise Arbour an honorary doctorate. When she came for the conferring, she met with students from around Ireland. They were all impressed with her warmth, her candour and her command of the subject matter. I hope that when she steps down she'll have time to visit us again.
One of the aspects of her term as High Commissioner that I have found particularly fascinating is the leadership she has shown on issues of international human rights law. Under her direction, the Office of the High Commissioner has issued position papers and even intervened as amicus curiae in court cases.

Thursday, 6 March 2008

More hyperbole about genocide, and a threat to unleash the International Criminal Court

In recent years, South American courts have shown a penchant for extravagant use of the term ‘genocide’ at a time when international tribunals and other authoritative bodies have tended to confine the concept to the intentional physical destruction of a national, ethnic, racial or religious group. Situations that don't meet the relatively strict definition of genocide are treated as crimes against humanity.
Earlier this week, Colombia’s president Alvaro Uribe charged that President Hugo Chávez of Venezuela was committing genocide, and that he planned to denounce him to the International Criminal Court. To my knowledge, this is the first time one State has threatened to refer a situation againist another State.
George W. Bush, who is afraid to call the real genocide of the Armenians by its proper name, didn’t actually endorse the Colombian genocide charge, but he spoke with Uribe and said: ‘America will continue to stand with Colombia as it confronts violence and terror and fights drug trafficker.’ It seems that for the Americans this is a marvelous conjunction of two ‘wars’, against drugs and against terrorism. If Uribe wasn’t so shrill about drugs, I would be tempted to ask what he had been smoking when he accused Chávez of genocide.
The International Criminal Court has been hovering over the region for some time now. In February 2006, the Prosecutor responded to charges that had been submitted concerning Venezuela by indicating that none of them establisheda basis for prosecution before the Court. He also said: ‘the available information provides no reasonable basis to believe that genocide has been committed…’ See: . As for Colombia, in November 2007 in his speech to the Assembly of States Parties the Prosecutor of the Court spoke of a visit he made to Colombia and confirmed, at least implicitly, that the Court is seriously considering opening an investigation in that country: Given the Prosecutor’s tendency to focus on rebel groups rather than governments, one would expect him to target the FARC rather than the very nasty pro-government militias. Certainly any proceedings aimed at those associated with the closest ally of the United States in the region seems unlikely, for obvious reasons.
The International Criminal Court has jurisdiction over the territories of Venezuela, Ecuador and Colombia, in accordance with article 12 of the Rome Statute. The Prosecutor may commence an investigation on his own initiative in these countries pursuant to article 15. If Uribe makes a complaint against Chávez, the Prosecutor would be required to investigate, in accordance with article 14. Of course, he could decide not to proceed even if Venezuela were to file a charge, in accordance with article 53, something he would be wise to do under the circumstances.

Wednesday, 5 March 2008

Peace v. Justice. A dangerous moment in northern Uganda

Ugandan peace talks underway in recent weeks appear to be moving close to resolution of the civil war that has raged for more than two decades ( Some of the credit for provoking the peace negotiations is given to the International Criminal Court. In 2004, arrest warrants were issued against five leaders of the rebel Lord’s Resistance Army ( There is broad agreement that the threat of prosecution helped bring the fighters to the negotiating table. Of course, one of the reasons that they have come to the table it to deal with the threat of prosecution. The conundrum for the Court is that it wants to take the credit for helping to provoke peace negotiations, but it is not then prepared to make its own compromises in order to bring the peace process to its conclusion. Now, as the peace talks have reached a critical stage, the rebels have proposed a meeting with the Prosecutor of the Court. Yesterday, it was reported that he has refused to meet with them (
The Prosecutor may decline to proceed in a case where this is not in ‘the interests of justice’ (art. 53 of the Rome Statute), but in a recent Policy paper he indicated that this concept did not include the ‘interests of peace’ ( In reaching this conclusion, the Prosecutor insisted that with the entry into force of the Rome Statute, there is a new legal reality. He suggested if justice is to be subordinated to peace, this will be the burden of others, such as the Security Council. ‘The issue is no longer about whether we agree or disagree with the pursuit of justice in moral or practical terms: it is the law’, he wrote.
This is a very dangerous time. Although compromising justice for peace is a galling prospect, above all because it breaches the rights of the victims of atrocities, sacrificing peace for justice has its own terrifying consequences. Some have said it would be a terrible blow to the Court if it were to contemplate withdrawing the arrest warrants in the interests of a peace agreement. But it may prove even more devastating to the Court, in the long term, if peace talks break down and there is a return to war because of its refusal to show some flexibility. Many more innocent victims may die in the weeks and months to come as a result of any prolongation of the war. It will be said that the Court bears some of the responsibility.

New judgments

Some important new judgments have been issued in the past week.
The European Court of Human Rights delivered a ruling in a case involving transfer (refoulement) of an alleged terrorist from Italy to Tunisia (Saadi v. Italy, The United Kingdom had intervened asking the Court to revisit its ruling of more than a decade ago in Chahal. According to Chahal, there can be no exception to the prohibition of sending an individual to a country where he or she would be subject to torture. The United Kingdom hoped the Court might temper its words, given the post 9/11 context, but last week’s decision confirmed that there are no exceptions to the rule. This was a unanimous judgment of a Grand Chamber of the Court. In international human rights law, it doesn't get any stronger.
Also of interest is the brief discussion of diplomatic assurances, because the Court seems to think they may be relevant in assessing the risk of torture. Others, such as the Special Rapporteur on Torture and the High Commissioner for Human Rights, have considered diplomatic assurances that a person will not be tortured to be worthless. I did a paper on the subject a little more than a year ago for a seminar organised by the Organisation for Security and Cooperation in Europe and the Office of the High Commissioner for Human Rights (
The Appeals Chamber of the Special Court for Sierra Leone issued its judgment in the case of three leaders of the Armed Forces Revolutionary Council yesterday. The judgment overturns a Trial Chamber finding that refused to treat ‘forced marriage’ as a distinct form of crimes against humanity. See: