US to Seek a Seat on the UN Human Rights Council

The United States administration announced today that it will seek a seat on the United Nations Human Rights Council in the upcoming elections, to be held in May: http://www.washingtonpost.com/wp-dyn/content/article/2009/03/31/AR2009033102782.html?hpid=topnews. When the Council was created, in 2006, the Bush administration decided that it did not wish to participate. There are forty-seven seats on the Council, which is the principal human rights organ of the United Nations.

New Journal: Human Rights Practice

the first issue of Journal of Human Rights Practice, which is published by Oxford and based at the Centre for Applied Human Rights, University of York, includes articles by Michael Sfard, Manfred Nowack, and Stephanie Farrior. It is available free of charge: http://jhrp.oxfordjournals.org/current.dtl
Thanks to Dr Michael Kearney

Is the International Criminal Court Targetting Africa?

Richard Goldstone has written a persuasive article on the International Criminal Court and Africa, entitled 'Does the ICC Target Africa?' It is featured in the latest issue of the newsletter EQ: Equality of Arms Review, published by the International Bar Association, which features a range of issues concerning the relationship between Africa and the Court: www.ibanet.org/Human_Rights_Institute/ICC_Outreach_Monitoring/EQ_Magazine.aspx

Blogs are Evidence at Yugoslavia Tribunal

The Trial Chamber handling the Karadzic case has just issued a ruling deciding that proceedings can be conducted in English, despite the defendant's insistence that everything be translated into Serbian and use cyrillic script: http://www.icty.org/x/cases/karadzic/tdec/en/090326.pdf. The Chamber refers to recent blog entries by one of his legal advisers as evidence that the defendant is comfortable enough in English. See particularly paragraphs 6 and 19.
Thanks to Jernej Letnar Černič

ICC Observers

The transitional justice team at University of Oxford have a very interesting blog on the International Criminal Court: http://iccobservers.wordpress.com/. The transcription of an interview I did with them recently is available at: http://iccobservers.wordpress.com/2009/03/26/icc-observers-exclusive-interview-william-schabas-professor-of-human-rights-law-and-director-of-the-irish-centre-for-human-rights-at-the-national-university-of-ireland-galway/

Prosecutor Appeals Genocide Decision of International Criminal Court

The Prosecutor has applied for leave to appeal the decision of the Pre-Trial Chamber that issued an arrest warrant for crimes against humanity and war crimes against President Bashir of Sudan because it rejected the charge of genocide: http://www.icc-cpi.int/NR/exeres/CC751CCC-B58D-49A8-8073-83E0D06D3717.htm
In order to obtain leave to appeal, in accordance with article 82, he must demonstrate that the decision 'involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial' and for which 'an immediate resolution by the Appeals Chamber may materially advance the proceedings'. It is really hard to see how these conditions can be met. The evidence to prove crimes against humanity and genocide will be essentially the same, and therefore this should not affect the proceedings in a significant way. The Trial Chamber can always conclude that there is enough evidence to sustain a charge of genocide, and then amend the charges, bearing in mind the need to give fair warning to the defence. In other words, there is no need to resolve this issue now. It can easily be fixed at trial, if indeed a mistake has been made.
The Prosecutor's arguments in his application for leave to appeal are not very convincing. Essentially, they amount to saying that any time a Pre-Trial Chamber denies certain charges in an arrest warrant, this raises issues of fairness and requires immediate determination. He is claiming, I think, that a decision of the sort should automatically be subject to an appeal.
This is surely not what was intended by the drafters of the Rome Statute, it is not what the Statute says, and it doesn't make sense. The whole purpose of limiting the right of interlocutory appeal is to expedite the proceedings. It is generally framed within concern about dilatory motions by the defence. One would not expect it to be the Prosecutor who is delaying proceedings.
One of the arguments in the application for leave to appeal that I found particularly intriguing is the claim that the Pre-Trial Chamber decision creates unfairness for the defense. This is very creative. I doubt that the defense agrees, however, that the Prosecutor should be able to appeal in order to add a charge of genocide!
The application says that the Prosecutor also intends to apply for a new arrest warrant, with new material. Aren't there more important things for the Prosecutor to be doing? After all, he obtained a warrant for crimes against humanity. Why not concentrate on proving that one, rather than quibble about whether the charge should also be one of genocide?

Cassese is President of Special Tribunal for Lebanon

Antonio Cassese will be the President of the Special Tribunal for Lebanon, according to a UN Press Release issued a few days ago: http://www.un.org/apps/news/story.asp?NewsID=30286&Cr=lebanon&Cr1=tribunal. Daniel Fransen of Belgium has been appointed as the Pre-Trial Judge. Other details concerning appointment of judges are to be provided later, and once security arrangements are in place, says the press release. It concludes: 'The investigation continues under the guidance of Prosecutor Bellemare, and a trial will take place when he has sufficient evidence is in place, according to the court.' This investigation has been underway for nearly four years. Who done it?

Cuirt Literature Festival in Galway, 21-26 April

At this year's Cuirt Festival of Literature, held annually in Galway in late April and known around the world, I'm delivering a lecture entitled: 'Writing about Atrocity: Justice, Redemption and Trivialisation. Thoughts on Schlink (The Reader), Mailer and Grass.' I propose to explore some of the issues that arise when 'fiction' encounters 'truth'. There is a fascinating interface of relevance to the contemporary human rights debate about the 'right to truth' and the efforts of writers who speak to the great historic atrocity crimes of our era. My lecture will ask whether there is also a 'right to fiction'. Here's the full programme: http://www.galwayartscentre.ie/ftp/parrafos/Cuirt_Programme_200920091803173255_.pdf. The lecture is on 25 April at 5 PM.

Reports of Israeli War Crimes in New York Times

See the front page of today's New York Times for a story entitled 'Soldiers' Accounts of Gaza Killings Raise Furor in Israel: http://www.nytimes.com/2009/03/20/world/middleeast/20gaza.html?pagewanted=1&_r=1&hp. It includes the following:

Now testimony is emerging from within the ranks of soldiers and officers alleging a permissive attitude toward the killing of civilians and reckless destruction of property that is sure to inflame the domestic and international debate about the army’s conduct in Gaza. On Thursday, the military’s chief advocate general ordered an investigation into a soldier’s account of a sniper killing a woman and her two children who walked too close to a designated no-go area by mistake, and another account of a sharpshooter who killed an elderly woman who came within 100 yards of a commandeered house. When asked why that elderly woman was killed, a squad commander was quoted as saying: “What’s great about Gaza — you see a person on a path, he doesn’t have to be armed, you can simply shoot him. In our case it was an old woman on whom I did not see any weapon when I looked. The order was to take down the person, this woman, the minute you see her. There are always warnings, there is always the saying, ‘Maybe he’s a terrorist.’ What I felt was, there was a lot of thirst for blood.”

International Studies Association Convention Next Year

In February, I attended the International Studies Association annual convention, for the first time. I have known about the gathering for many years, but had never managed to get there before. It is a fabulous gathering of academics, with an enormous number of sessions reflecting a broad range of disciplines in the area of human rights. The call for papers has just been issued for next year’s meeting, which will be held in New Orleans, from 17-20 February 2010: http://isanet.ccit.arizona.edu/MyISA/NewOrleans2010.aspx.
I would urge doctoral students to consider making proposals for both papers and panels at next year’s meeting. Think about proposing a panel, and not just one for other doctoral students but where you invite a few ‘big names’ to participate. The deadline is 1 June 2009, so it is not too early to start moving on this.

International Studies Association Convention Next Year

In February, I attended the International Studies Association annual convention, for the first time. I have known about the gathering for many years, but had never managed to get there before. It is a fabulous gathering of academics, with an enormous number of sessions reflecting a broad range of disciplines in the area of human rights. The call for papers has just been issued for next year’s meeting, which will be held in New Orleans, from 17-20 February 2010: http://isanet.ccit.arizona.edu/MyISA/NewOrleans2010.aspx.
I would urge doctoral students to consider making proposals for both papers and panels at next year’s meeting. Think about proposing a panel, and not just one for other doctoral students but where you invite a few ‘big names’ to participate. The deadline is 1 June 2009, so it is not too early to start moving on this.

New Mexico Abolishes Death Penalty

Governor Richardson of New Mexico has signed into law the abolition of capital punishment in that state:
http://news.bbc.co.uk/go/em/fr/-/2/hi/americas/7951972.stm. It may seem too early to be overly optimistic, but it is one further sign in the United States that the wind is shifting, and that one of the more stalwart and increasingly isolated countries on the death penalty map is following the rest of the world towards abolition.
Thanks to Brian Farrell.

Nuremberg Prosecutor Letters Made Public

Letters from Nuremberg prosecutor David Maxwell Fyfe, thought to be lost, have been made public at the Churchill Archives Centre in Cambridge: http://news.bbc.co.uk/2/hi/uk_news/7953246.stm. Maxwell Fyfe describes defendant Hermann Goering as ‘the fat boy’ and claims he ‘knocked him off his perch’ in cross-examination. Many observers, including Telford Taylor, have written that Goering actually got the better of the American prosecutor, Robert Jackson. According to Maxwell Fyfe’s letter to his wife: ‘I think that my cross examination of Goering went off all right. Everyone here was very pleased. Jackson had not only made no impression but actually built up the fat boy [Goering] further. I think I knocked him reasonably off his perch.’ (see photo)
Another recent personal account of Nuremberg comes from the letters of Thomas Dodd, which were recently edited and published by his son, a US Senator: Letters from Nuremberg, My Father’s Narrative of a Quest for Justice. I read recently that Senator Christopher Dodd has a house in Connemara, somewhere near Roundstone, and visits it regularly.
Thanks to Christopher Ryan.

Aggression Report of International Criminal Court Now AVailable

The latest report of the Special Working Group on the Crime of Aggression of the Assembly of States Parties of the International Criminal Court is now available: http://www2.icc-cpi.int/iccdocs/asp_docs/ICC-ASP-7-SWGCA-2%20English.pdf.
Although not the last word on the subject, it represents a growing consensus on many of the outstanding issues concerning the definition of the crime, and authorisation to the Court to exercise jurisdiction over it. The big problem is still unresolved, however: will the permanent members of the Security Council accept this. They haven't even blinked, so far. Everyone hopes that the solution will come at, or perhaps even before, next year's review conference, to be held in Kampala, Uganda, probably in April, May or June. No matter how much progress is made on the technical issues, the big political question remains.

Conference on Human Rights and Forensic Science

The Irish Centre for Human Rights is co-hosting with the Centre for Anatomy and Human Identification, University of Dundee, a conference on Human Rights and Forensic Science which will take place at NUI Galway on 24-25 April 2009. This one and a half day conference will explore current and potential future application of forensic science disciplines in the field of human rights and will discuss issues of both a practical and theoretical nature. The Centre will play host to a number of distinguished international speakers, drawn from a number of disciplines including law, sociology, medicine and forensic anthropology. The synergy between these different disciplines in the context of the advancement of human rights will be explored throughout each thematic session. Further details on the speakers and programme are available on the Irish Centre for Human Rights website: http://www.nuigalway.ie/human_rights/conferences.html

Employment Opportunities at Aegis Trust

The Aegis Trust is seeking to recruit two new positions for a new programme in the field of international criminal justice entitled 'Wanted for War Crimes'. The three-year programme is funded by the European Union and will pay competitive salaries. The positions are based in London with extensive travel overseas. For more details: http://www.aegistrust.org>www.aegistrust.org.

Call for Gaza Investigation

Richard Goldstone, Mary Robinson, Desmond Tutu and thirteen others have called for an international inquiry into allegations of war crimes committed during the conflict in Gaza. For the text, see: http://www.reliefweb.int/rw/rwb.nsf/db900SID/RMOI-7Q6KGS?OpenDocument.

An Unappealing Appeal

Reuters reports that the Prosecutor of the International Criminal Court plans to appeal the ruling by Pre-Trial Chamber I of 4 March granting an arrest warrant for crimes against humanity and war crimes, but denying it for the count of genocide: http://www.reuters.com/article/worldNews/idUSTRE52C55S20090313. For the arrest warrant decision, see this blog, 4 March 2009.
There is no general right of appeal or judicial review at the Court, as has already been held in a ruling of the Appeals Chamber (http://www2.icc-cpi.int/NR/exeres/0DEA09C1-52B0-44C3-BA59-ED6289C4405E.htm). Appeals only lie when they are provided for in provisions of the Statute.
There has been one appeal of issuance of an arrest warrant before the Court, but this was taken because it raised an issue of admissibility and was therefore authorised by article 82(1)(a). Otherwise, the Prosecutor must seek leave of the Pre-Trial Chamber, in accordance with article 82(1)(d). The Statute says that leave will only be granted with respect to a decision "that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings'. Because the charges can always be amended in the course of the proceedings, and because the Trial Chamber may on its own initiative propose the legal requalification of acts that are proven before the Court, and because the evidence of crimes against humanity is arguably the same as that for genocide, it is hard to see how the Prosecutor's appeal could meet the terms of article 82(1)(d).
I am not aware of any precedent for such appeals at the ad hoc tribunals either. At the ad hocs, where counts were denied by the judge issuing the indictment, the Prosecutor just swallowed hard and moved on to other things.
Had the Prosecutor been satisfied with an arrest warrant for crimes against humanity and genocide, it would probably have been granted within a month or two of his application, in July 2008. After all, the Pre-Trial Chamber had already issued warrants on this basis concerning the Situation in Darfur. Why would it take a different approach to Bashir? It is obvious enough that the reason the arrest warrant took so long was the debate about genocide. But any reasonable student of recent legal developments concerning the scope of the crime of genocide could have told the Prosecutor that his chances were slight. He was bucking a trend towards a relatively narrow construction of the definition of genocide that has been confirmed in rulings of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia and the International Court of Justice, and in the report of the United Nations Commission of Inquiry into Darfur. Note, in passing, that the major human rights NGOs, Human Rights Watch and Amnesty International, have also prudently resisted using the term ‘genocide’ to describe the situation in Darfur.

Finally, a Debate about Complementarity

Defence counsel for Germain Katanga have filed a motion challenging admissibility: http://www.icc-cpi.int/iccdocs/doc/doc642392.pdf. This will be the first real judicial debate about complementarity at the International Criminal Court. Many interesting arguments are invoked, including the claim that Katanga's fair trial rights are compromised at the International Criminal Court because he cannot compel the testimony of defence witnesses. The motion points to rulings of the Appeals Chamber of the International Criminal Tribunal for Rwanda denying transfer of cases to the national jurisdictions of Rwanda because of perceived difficulties in securing defence testimony. Defence counsel argue that in some respects, trial in the Democratic Republic of the Congo is superior to trial in The Hague.
Thanks to Goran Sluiter.

Death Penalty Team Employment

The legal action charity Reprieve, based in London, is recruiting for a Legal Director of its Death Penalty Team. The work involves running cases, managing the team and devising the strategy which will effect the abolition of the death penalty.
Visit www.reprieve.org.uk for further details.
Send cv with covering letter to: Jane Pickering, Reprieve, PO Box 52742, London, EC4P 4WS. Email: jane@reprieve.org.uk

Shawan Jabarin Denied Right to Travel

Shawan Jabarin, the director of Al Haq, which is based in Ramallah and does legal work in the area of Palestinian rights, has been refused the right to leave the Occupied Territory to travel to the Netherlands to receive the Guezen Medal, on behalf of his organisation: http://www.nytimes.com/2009/03/11/world/middleeast/11briefs-COURTBLOCKSR_BRF.html.
Shawan is a great friend of the Irish Centre for Human Rights, and we all admire his enormous contribution to the promotion of human rights. He completed an LLM here some years ago.

Postdoctoral Positions

Two post-doc positions are on offer for the project 'Should States Ratify Human Rights Conventions?' at the Norwegian Centre for Human Rights, Faculty of Law, University of Oslo.
Post-doc 1 (Law): Individual Complaints in Human Rights Treaty Bodies.
Post-doc 2 (Philosophy/Political Theory): Normative issues concerning Human Rights Conventions. Application deadline: 14 April 2009.
For more info, please see:
http://www.admin.uio.no/opa/ledige-stillinger/2009/vitenskapelige/2PostDoctorSMR-2009-1418.html
http://www.humanrights.uio.no/om/stillinger/index.html

Peace Agreements Database

The Transitional Justice Institute, at the University of Ulster, has launched a peace agreements database containing details of over 640 peace agreements reached since 1990, addressing conflicts that affect over 85 jurisdictions: http://www.transitionaljustice.ulster.ac.uk/peace_agreements_database.html The database lists peace agreements by conflict, and gives details of the date signed, parties and third parties to each agreement. It provides details of the substance of the each agreement, by setting out the location in the text and a short synopsis of each agreement's provisions in the following categories: dealing with the past (amnesty, past mechanism, prisoner release, victims), undoing the legacy of the past (refugees, land), state institutional reform (criminal justice, policing, judicial reform, new rights institutions), enforcing the agreement (enforcement mechanism, international community, UN involvement), and agreement provisions addressing a range of other issues, such as women, civil society, and socio-economic/development. The database also indicates where the full text of each peace agreement can be found. The Peace Agreement Database was conceived and researched by Christine Bell and Catherine O'Rourke within the Transitional Justice Institute, and has been in development since 2004. The project emerged from work by Christine Bell over the past ten years in the collection of peace agreement texts.

Dicker and De Waal Debate Bashir Arrest Warrant, Tension Between Peace and Justice

Democracy Now has an interesting exchange between two of the heavy hitters in the debate about the threat the Bashir arrest warrant poses to the Sudan peace process:
http://www.democracynow.org/2009/3/6/hrws_richard_dicker_and_scholar_mediator.
Alex is one of the most knowledgeable specialists on Sudanese politics; Richard is a veteran of the NGO campaign for international justice and the creation of the International Criminal Court.

Innovative Canadian Decision on Protection for US Death Row Inmate

Canada’s Federal Court has ruled in favour of a Canadian citizen who is a death row inmate in the United States who argued that the Canadian government had failed to use diplomatic efforts to protect him: http://www.mediafire.com/?6lmzbmmzsn3. Traditionally, Canada has intervened with the United States government on behalf of Canadians who are on death row in that country. For the last few years, however, Canada has had a very conservative government, and it has sought ways to quietly favour capital punishment, despite the fact the death penalty has been entirely prohibited in Canada for many years, and is almost certainly unconstitutional. Congratulations to Craig Forcese and Lorne Waldman, who took the application
Thanks to Ildiko Erdei.

Revolutionary United Front Judgment Available

I just checked the website of the Special Court for Sierra Leone, and the judgment in the Revolutionary United Front case is still not available (see http://www.sc-sl.org/CASES/RevolutionaryUnitedFrontTrialRUF/RUFJudgment/tabid/174/Default.aspx). However, I have managed to obtain a copy: http://www.mediafire.com/?kykwt5mxmx2. Check out the very quotable Judge Thompson: 'As I have had occasion to express elsewhere on another subject, applying incoherent,disparate and unsettled principles of law is fraught with judicial perils which, inevitably, make us judges “victims of the fallacy of slippery precedents.” (at p. 697)
Thanks to Simon Meisenberg and Fidelma Donlon.

Bashir Arrest Warrant Issued

An arrest warrant for war crimes and crimes against humanity was issued against President Bashir of Sudan today by a Pre-Trial Chamber of the International Criminal Court: http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf. The majority of the Pre-Trial Chamber dismissed the application for an arrest warrant for the crime of genocide.

Aegis Trust Report on Enforcement of International Criminal law

The Aegis Trust has just issued a report containing interesting papers in the field of international criminal justice, including one dealing with a new convention on crimes against humanity, a new optional protocol to the Genocide Convention, and a common fund to finance extra-territorial: http://www.aegistrust.org/images/PDFs/enforcement_of_international_criminal_law.pdf . The report includes contributions by Justice Richard Goldstone; Caroline Flintoft and Nick Grono of the International Crisis Group; Leila Sadat of Washington University; Sudhanshu Swaroop of 20 Essex Street chambers; Tracey Gurd of the Open Society Justice Initiative; Juergen Schurr of Redress; Diane Orentlicher of American University College of Law; and Anna Macdonald of the Aegis Trust.

Upcoming Conferences of Interest

A couple of upcoming conferences that may be of interest.

The need to eradicate impunity. In Berlin, 0n 23 March, co-sponsored by the Bundestag's Human Rights & Humanitarian Aid Committee and the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe. According to Andrew Drzemczewski, 'the participation of persons other than the keynote speakers & AS/Jur members is encouraged (especially that of NGOs, academics etc., with a specific interest inthe subject)'. If you are interested in participating, please inform Sally-Ann Honeyman (sally-ann.honeyman@coe.int), preferably by Friday 6 March.The conference is to serve as a forum of open debate which will 'feed into' a report to be presented on this subject by the Committee's Rapporteur & Chairperson, Mrs Däubler-Gmelin, at the Parliamentary Assembly's June 2009 session in Strasbourg. Those wishing to participate will need to cover their own expenses.

The Future of International Criminal Justice. Organised by the Santa Clara Journal of International Law, in Santa Clara, California, on 13-14 March. Keynote speaker is M. Cherif Bassiouni. For further details: http://law.scu.edu/international-criminal-justice-symposium/index.cfm. The IntLawGrrls blog also has a summary of the Symposium here: http://intlawgrrls.blogspot.com/2009/02/go-on-future-of-international-criminal.html.
Thanks to Andrew Drzemczewski and Ann Marie Ursini.