Monday 29 December 2008
Special Rapporteur for Human Rights in the Occupied Territories Condemns Israeli Airstrikes on Gaza Strip
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.
Monday 22 December 2008
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.
Saturday 20 December 2008
Human Rights Committee Decision Condemns Implementation of Security Council Counter-terrorism Sanctions by Belgium
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.
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.
Friday 19 December 2008
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.
Thursday 18 December 2008
Wednesday 17 December 2008
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 (email@example.com, tel. +45 32698841) or Hatla Thelle (firstname.lastname@example.org, tel. +45 32698849).
Wednesday 10 December 2008
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.
Monday 8 December 2008
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.
Friday 5 December 2008
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.
Thanks to Joe Powderly.
Wednesday 3 December 2008
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.