Thursday, 30 October 2008

Iran Retracts on Juvenile Death Penalty

This report comes from the World Organisation Against torture:

[GENEVA, 28 October 2008] - The World Organisation Against Torture (OMCT) is deeply concerned about new information that Iran willcontinue to sentence to death minors who have committed murder. This new declaration by Hossein Zabhi, the Assistant Attorney General forJudicial Affairs goes back on a first statement announcing that death sentence will no longer be imposed on any under-18 juveniles whatevercrime they have committed.On 17th October, OMCT issued a press release welcoming the positive announcement by the Iranian Judiciary. Unfortunately, a few days later, the same authority announced in a new statement that deathpenalty was still applicable to juveniles who had committed murder. It went on explaining that, according to the Iranian law, the punishment for murder is based on the system of qesas (or retribution). It is considered a private dispute between two parties –the alleged offender and the victim's family- where the state's role is limited to the resolution of the dispute through the judicial process. Qesas isimposed by the victim's family who is the sole able to pardon thealleged offender or to accept compensation. to this system, the State authorities are not competent to modify the setnence. It remains unclear why Iranian authorities went back on their first statement and the intention of the Iranian authorities was to mislead the Iranian and international human rights community. This does not take into account the situation of the juveniles on death rowand their families who could rightfully understand from the initial statement that the death sentence would be commuted into prison term.OMCT strongly calls the Islamic Republic of Iran to respect the international norms it has adhered to and ratified such as the UN Convention on the Rights of the Child and the International Covenanton Civil and Political Rights.

The position taken by the government of Iran is difficult to understand, because it amounts to saying that the government cannot intervene when private citizens propose to kill an adolescent.
Thanks to Aoife Daly.

Charles Taylor’s Son Convicted of Torture by US Court

A federal jury in Miami has convicted Charles McArthur Emmanuel Taylor Jr. (aka ‘Chuckie’), the son of former Liberian President Charles Taylor, of torture in the first trial based upon legislation adopted in 1994 that gives United States courts jurisdiction over torture committed abroad.
Taylor is subject to life imprisonment. Sentencing proceedings are due to begin in January.
Evidence was produced showing that Taylor, who is 31, led an elite ‘antiterrorist unit’ known as the ‘Demon Forces’ in the government headed by his father. Witnesses reported that Tyalor had been involved in killings and torture using electric shocks, lit cigarettes, molten plastic, hot irons, stabbings with bayonets and biting ants shoveled onto people's bodies.
Taylor did not testify in his own defense. His lawyers suggested that witneses had lied in order to obtain asylum in the United States or to settle scores with Taylor’s father.
Charles Taylor père has been on trial in The Hague before a Trial Chamber of the Special Court for Sierra Leone since January 2008.

Blog Now Accessible in China

Readers may recall my frustration, during my last visit to China, at the inability to access my blog. It seems that the Chinese firewall blocked all blogs. Well, that has changed. I am writing from my Beijing hotel room, and I can get my blog without trouble, as you can see from the screen shot. For the record, I can also get Amnesty International.

Monday, 27 October 2008

Slavery Judgment Condemns Niger

Today’s Guardian has a fascinating artricle about a judgment of the Court of the Economic Community of West African States holding Niger responsible for slavery, which is still practiced in the country:
According to the Court, Niger failed to protect a young girl, Hadijatou Mani, who was sold into slavery. The court ordered Niger state to pay her 10 million CFA francs (about Euro 12,000) in damages and accumulated interest. The Guardian says: ‘The ruling by the panel of judges from Senegal, Mali and Togo will bring hope to the more than 40,000 people being held as slaves in rural Niger and across the region.’
Thanks to Dr. Michael Kearney.

Florence Hartmann Appears in The Hague

Several weeks ago, I reported on a contempt citation issued against the former press attaché of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, a result of a book she published last year.
Today, Florence Hartmann appeared before the Tribunal, chared with having 'knowingly and willfully...disclos[ed] information in violation of an order of the Appeals Chamber'. According to the Chamber, these are charges punishable by the 'inherent power of this tribunal' as well as pursuant to Rule 77(a)(ii) of the Rules of Procedure and Evidence. According to the Chamber articles 20 and 21 of the Statute do not distinguish between 'accused and accused', i.e. those accused with crimes against humanity and those charged with contempt. Ms Hartmann elected not to enter a plea today. She said that she and her counsel are waiting for a decision from the Registry as to whether she will be recognised as being indigent, financially speaking, as this will determine if her counsel can continue to represent her. A schedule for a further initial appearance will be issued in due course, probably within the next 15 days . It is estimated at this point that the date for the start of the trial will be early next year.
Thanks to Eadaoin O'Brien who attended the hearing.

Wednesday, 22 October 2008

Appeals Chamber Ruling in Lubanga Case is Another Blow to the Prosecutor

The Appeals Chamber of the International Criminal Court has ruled on the appeals of two Trial Chamber decisions in the Lubanga case from June and July: It is another big setback for the Prosecutor.
Basically, the Chamber has confirmed that the Trial Chamber was right to order a stay of proceedings. But they have given the Prosecutor a small additional window of time to fix the situation. Because the Trial Chamber did not issue a permanent stay of proceedings, the Appeals Chamber said that it was not correct to order the release of the accused. But it said that this would be inevitable once the stay is made permanent. And the Appeals Chamber also signalled issues about the right to a trial within a reasonable delay, a point that becomes increasingly relevant.
Now, presumably, the Lubanga defense will apply for the stay to be made permanent. The Prosecutor has been trying to fix things, but so far he has not been successful. In late August, the Trial Chamber rejected his efforts. Perhaps he can do better. Time will tell, I suppose, but he doesn’t have much time left.
The whole business is a disaster for the Court, in its first case. At the same time, sending the message that the Court will only proceed when the rights of the defense have been scrupulously observed is perhaps not so bad.

Sunday, 19 October 2008

Garzón Investigating Crimes of Spanish Civil War

Spanish Judge Baltasar Garzón, the Spanish prosecutor who made a name for himself a decade ago in his efforts to prosecute Chilean ex-dictator Pinochet, has ordered the exhumation of mass graves relating to the Spanish Civil War. Garzón claims he has jurisdiction over crimes against humanity committed in the 1930s because enforced disappearance is a continuing crime. In other words, if someone disappeared decades ago, the crime continues till this day. He cites ‘permanent illegal detention without identification of location, in the context of crimes against humanity’.
The issue may be of some interest to the International Criminal Court, whose jurisdiction begins on 1 July 2002. Many have examined whether it might peer into the past, using the gambit of 'continuing crimes'. This might well apply not only to the crime against humanity of enforced disappearance but also to the war crime of moving settlers to an occupied territory. The issue was left somewhat unresolved at the Rome Conference, when the International Criminal Court statute was adopted.
Using information provided by churches and city halls around the country, as well as the Catholic hierarchy, Garzón has compiled a list of some 114,266 victims. , according to the court document. These individuals were on, or linked to the losing Republican side in the civil war.
State prosecutors take the position that an Amnesty Law of 1977 covers the disappearances.

The painting is of course Picasso's great Guernica, portraying the 1937 bombing of the Basque town. The photo shows the town after the bombing.
Thanks to Eadaoin O'Brien, and to Tara Smith for the photos.

Saturday, 18 October 2008

"Most Serious Crimes' and the Death Penalty

At the end of the month, I will attend a conference entitled ‘The Impact of International Conventions towards China’s Death Penalty Reform’, being held at the Friendship Hotel in Beijing. Our hosts are the Centre for the Reform of the Death Penalty at Beijing Normal University. I am presenting a paper on the concept of ‘most serious crimes’ as a limitation on the use of capital punishment imposed by international human rights law:

Juvenile Death Penalty in Iran: Beginning of the End?

In a press release issued yesterday, the Geneva-based World Organisation Against Torture reported an announcement by the Iranian judiciary of the end of death sentences for persons under the age of 18 at the time the crime was committed. Apparently, a directive of the judiciary addressed to Iranian judges states that death sentences for juvenile offenders must be replaced with prison terms ranging from 15 years to life imprisonment. This reportedly applies to all crimes punishable by death under Iranian law.
The Organisation welcomes the announcement as a crucial step in the fight against the death penalty applied to juvenile offenders in Iran, but expresses caution because the directive has no legal finding force. According to the Association, six juveniles have been executed in 2008 and between 130 and 140 juvenile offenders are currently on death row in Iran.
The Convention on the Rights of the Child (art. 37(a)), to which Iran is a party, prohibits the death penalty for persons under the age of 18. The practice is also forbidden by article 6(5) of the International Covenant on Civil and Political Rights, which Iran ratified in 1975. Iran is the last State in the world to carry out such executions. The practice was used occasionally in the United States until it was declared unconstitutional by the United States Supreme Court in 2005.
We often point to the growing trend to abolish the death penalty altogether as evidence of an evolving norm in international law that may at some point constitute a customary rule. But the in many ways the juvenile death penalty provides an even clearer example. The debate began back in 1949, at the time of adoption of the fourth Geneva Convention. Article 68 of the fourth Convention prohibits the juvenile death penalty, but only within an occupied territory. The provision made some countries, including the United Kingdom, so uncomfortable that they delayed ratification of the fourth Geneva Convention for several years. Then, the norm was enshrined in article 6(5) of the International Covenant on Civil and Political Rights, adopted in 1966, and finally in the Convention on the Rights of the Child, adopted in 1989.
Many States stopped executing juvenile offenders, but they were slower to change their laws (like Iran). Ireland is an example. I'm not sure when the last juvenile execution in Ireland took place, but it must have been prior to 1954, because that is when the last execution of any kind took place. Yet Ireland still authorised juvenile execution in its criminal law until the early 1990s. When Ireland ratified the International Covenant on Civil and Political Rights, in 1989, it felt it needed to make a reservation to article 6(5) because of its legislation which was still in force. The only other country to make a reservation to article 6(5) is the United States. Of course, the death penalty in Ireland is now prohibited by the Constitution and the reservation is therefore of no significance.
Another country I know rather well, Canada, was sentencing juveniles to death as late as the 1950s. I vividly remember someone of 14 being sentenced to death in Canada in 1959 for allegedly murdering a girl. I was only a few years younger than him at the time. He protested his innocence, but was only absolved of the crime in 2007.
When the Convention on the Rights of the Child was adopted, there were about ten States in the world, most of them Arab or Islamic, that retained the death penalty for juvenile offenders. One by one, they eliminated the practice. Some of them claimed this might conflict with Shariah law, but they did it anyway in order to conform with their international obligations.
So Iran's move means that the barbaric practice has been eradicated in the entire world. A human rights norm that started in a humanitarian law convention only 59 years ago is now truly universal.
And it is also evidence of progress in the norm towards universal abolition. The leading executioners in the world are China, Iran and the United States. All three continue to limit the scope of capital punishment, even if they are not yet ready to abolish it altogether.

Friday, 17 October 2008

O'Bama for President, or Taoiseach

There are many rumours afoot about the mysterious Barack O'Bama, but the best one is that O'Bama is really an Irishman. See: If things don't go well in November, we'd love it if he'd return back home and take on the job of Taoiseach. The guy currently doing the job is going through a bit of a rough patch.
I suppose everybody has seen the hilarious Saturday Night Live sketch about Sara Palin, but in case you missed it: I can hardly wait to visit that goofy evolution museum in New York City again.
And for those of you who haven't had enough wacky U-tube clips, this one comes from my daughter Louisa. It isn't really about human rights, but it is entertaining:
Thanks to Rick Lines, Pat O'Leary and Louisa Schabas.

Robert Jackson Archives

Interviews with some of the Nuremberg prosecutors are available on the Robert Jackson archives website: A member of the United States Supreme Court, Justice Jackson was given a leave of absence by President Truman so that he could negotiate the agreement that formed the legal basis for the trial of the major war criminals at Nuremberg. Jackson went on to be the American Prosecutor in the case.
Thanks to Joe Powderly.

Thursday, 16 October 2008

Sir Elihu Lauterpacht

Sir Elihu Lauterpacht is one of the great international lawyers of our time. Joe Powderly has found a website with a series of interviews that he did earlier this year in which he reminisces about his life and work: He is of course also the son of the great Sir Hersch Lauterpacht who can claim, amongst other accomplishments, to have told Justice Robert Jackson, over a dinner at Trinity College in July 1945, to rename the category previously known as 'atrocities, deportations and persecutions'. Lauterpacht's suggestion was 'crimes against humanity'.
This July, James Crawford organized a big event at the Lauterpacht Research Centre in Cambridge to mark both the 25th anniversary of the Centre and Sir Eli’s 80th birthday. It was a gathering of many of the great and the good in public international law from around the world, including several sitting and former judges of the International Court of Justice.
Eli Lauterpacht gave me my first break in international law when he was owner and publisher of Grotius Publications in Cambridge. I had completed my doctoral thesis on the abolition of the death penalty, and had sent the manuscript out to the leading publishers. Within a few weeks I had an offer from Eli Lauterpacht, whose small firm wasn't encumbered by the time-consuming bureaucracy of the bigger publishers, which of course I accepted. Later, the company was sold to Cambridge University Press, which has published the second and third editions. More than once I have told him of the great debt I owe him for this. Many others have similar stories of appreciation for Sir Eli.
Thanks to Joe Powderly.

Wednesday, 15 October 2008

US Supreme Court Refuses to Hear Innocence Plea in Death Penalty Case

The United States Supreme Court has refused leave to appeal (known as denying certiorari) in a case involving a claim of wrongful conviction: ://
Troy Davis, who was sentenced to death, has compelling evidence that he is innocent.
It is normal for criminal justice systems to put some closure on appeals and other challenges, but it is entirely different when a person's life is at stake. How can a civilised society execute somebody for whom their are serious grounds to think they may be innocent? What does it cost them to consider the claim and examine the new evidence?
Hopefully, there will be regime change in Washington in the coming weeks. This may well result in new appointments to the Supreme Court and, eventually a more enlightened jurisprudence on the death penalty.
Thanks to Nadia Bernaz.

Tuesday, 14 October 2008

Another Setback for the Prosecutor in the Lubanga case

Yesterday, the Appeals Chamber of the International Criminal Court dismissed an application by the Prosecutor to produce new evidence in its appeal of the decision of the Trial Chamber granting a stay of prosecution to Lubanga and, in effect, putting an end to the trial: Back in June, the Trial Chamber put an end to proceedings because the Prosecutor had failed to disclose evidence to the defence that it had obtained on a confidential basis from the United Nations and from come NGOs. Since filing the appeal, the Prosecutor has continued to make efforts to resolve the situation. In early August, he spoke at the Salzburg summer school on international criminal law and seemed confident that the situation would be repaired and that the trial would go on. But Professor Kai Ambos, who also spoke at the summer school, was not as optimistic. He pointed to the inadequacies in the Prosecutor’s recent attempts to disclose the evidence in question. Late in August, the same Trial dismissed a motion by the Prosecutor that was based upon his efforts since the June decision to unblock the situation. Then the Prosecutor applied to the Appeals Chamber for it to consider more recent developments in considering the appeal of the June judgment. But the defence objected, and the Appeals Chamber agreed. The appeal concerns the facts as they stood when the Trial Chamber issued its judgment in June. Any new facts have to be considered by the Trial Chamber first. They cannot simply be imported into the Appeals Chamber.
Thanks to Yvonne McDermott.

Thursday, 9 October 2008

Human Rights Based Approaches to EU Development Aid Policies

A review of development policies that appeared a few days ago is critical of European Union initiatives:

Appeals Chamber Denies Transfer of Case to Rwandan Courts

Today the Appeals Chamber of the International Criminal Tribunal for Rwanda dismissed the Prosecutor's appeal concerning an application to transfer a case to the Rwandan courts:
Earlier this year, a Trial Chamber denied the transfer on a number of grounds. The Appeals Chamber granted the appeal in some respects, notably in the decision by the Trial Chamber that because the trials in Rwanda would be held before a single judge this was not an adequate guarantee of a fair trial. But on other issues, such as speculation that a person sentenced in Rwanda might theoretically be required to serve a sentence in solitary confinement, and problems in obtaining witnesses for trial, the Trial Chamber decision was upheld.
There are two other judgments on appeal, but presumably the result will be similar.
In my opinion the judges have been far too severe, setting unrealistically high standards. This means a significant increase in the caseload of the Tribunal and at least three new trials and possibly more that it had been hoped would not be needed, because they could be held before national courts. The judges of both chambers will have to stay on and work for another year or two as a result of their decisions.

Postgraduate research skills

Our University's Centre for Excellence in Learning and Teaching has a number of very useful resources for graduate students: Apparently because of licensing restrictions this can only be accessed on the campus from a university computer.
Thanks to Cliona Kelly.

Wednesday, 8 October 2008

Martic Appeals Decision has More on Joint Criminal Enterprise and Co-Perpetration

Rome Statute

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia issued its ruling in Prosecutor v. Martic today. There is a press release on the website, but the judgment doesn’t seem to be posted yet. So here it is:

Once again, Judge Schomburg is in dissent on the issue of joint criminal enterprise. Readers of this blog will recallthat a few days ago I posted the decision of the Pre-Trial Chamber of the International Criminal Court in Katanga, noting that it essentially rejects the ‘joint criminal enterprise’ theory of liability favoured by the Yugoslavia Tribunal in favour of the ‘co-perpetration’ theory. Judge Schomburg has always been a fan of ‘co-perpetration’. He is right up to date, and cites last week’s ruling of the International Criminal Court in his decision, issued today. He writes: “Suffice it to say that it is not helpful at all, at this stage of the development of international criminal law, that there now exist two competing concepts of commission as a mode of liability.’

Another element of interest in the decision is its confirmation of case law on the definition of ‘civilian’ within the context of crimes against humanity. The Appeals Chamber says that a combatant who is hors de combat is not a civilian within the meaning of crimes against humanity.

Human Rights Conference at Royal Irish Academy

The Royal Irish Academy will host a conference to commemorate the 60th anniversary of the adoption of the Universal Declaration of Human Rights. It will be held on 20 October, starting at 130, at the Academy which is located on Dawson Street in Dublin. Among the speakers are Prof. Harold Koh, dean of the Yale Law School, Prof. Brice Dickson of Queen's University Belfast, Michael O'Flaherty who is the Irish member of the Human Rights committee, Prof. Attracta Ingram of University College Dublin and Professor Caroline Fennell of University College Cork. It is necessary to register in advance:

Hammerberg on Human Rights Education

Thomas Hammerberg, the Council of Europe Commissioner for Human Rights, has issued a very nice statement on human rights education:

Sunday, 5 October 2008

International Criminal Court Issues Important Ruling on Substantive Criminal Law

Almost all of the decisions of the International Criminal Court issued to date have concerned procedural matters. On 30 September, a Pre-Trial Chamber of the Court released its decision confirming charges against Germain Katanga and Mathieu Ngudjulo Chui. The decision contains extensive discussion about the scope of specific war crimes and crimes against humanity, although there is nothing terribly earthshaking here. Perhaps more significant is the endorsement of the theory of ‘co-perpetration’ and, at least implicitly, the rejection of the ‘joint criminal enterprise’ theory of liability so cherished by judges at the International Criminal Tribunal for the former Yugoslavia. See: The decision is peppered with references to (mainly) German writers on substantive criminal law. And there is an interesting dissent, by Judge Usacka.