Hague Seminar in International Criminal Law

Form 17-23 January 2010, the Hague Academy of International Law is organising a seminar on international criminal law. The annual seminar series is described as a 'programme of advanced studies devoted to various aspects of public and private international law, aimed especially at legal professionals who are already familiar with international law and whose professional interest or intellectual curiosity brings to seek further professional training in this area'. For more information:
http://www.hagueacademy.nl/?seminar-for-advanced-studies-programme

Blog Banned in China

A Chinese source tells me that my blog has been banned once again. Last year, when I was in China, it was impossible to access. But I was told that this was standard and that all blogs were blocked. Then, at the time of the Olympics, things opened up and my blog was accessible. I checked this personally on another trip to China. Now I’m told it is back on the shit list. I can't believe that the Chinese authorities really think this sort of thing can keep information out of China. I'm also puzzled that they find my blog so objectionable. I would have thought they would have enjoyed the spoof on George Bush last 1 April.
Thanks to … a friend in China.

Ruggie Report Available

Those of you who follow John Ruggie, the Special Representative for Business and Human Rights, will want to see his latest report: http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.13.pdf
See also the supplementary documents at http://www.business-humanrights.org/Gettingstarted/UNSpecialRepresentative.
Thanks to Bruce Broomhall.

Award for Yvonne McDermott

Yvonne McDermott, who is a PhD student at the Irish Centre for Human Rights, has been awarded the 2009 'Böhler Franken Koppe Wijngaarden advocaten /Hague Academic Coalition Award for Young Professionals'. The award is for her article entitled 'Victims and International Law: Remedies in the Courtroom'. Yvonne receives a 1000 euro prize, and the opportunity to submit the article for publication in the journal of the Hague Justice Portal. For more details, see: http://www.haguejusticeportal.net/eCache/DEF/10/002.html
Congratulations, Yvonne.

Rwandan génocidaire Convicted by Canadian Court

Désiré Munyaneza was convicted today by a Canadian court of committing genocide in Rwanda during 1994. Here is the judgment, in English: www.jugements.qc.ca
Here are some Canadian news reports: http://www.google.com/hostednews/canadianpress/article/ALeqM5gW8xZ_BIqxR2D7XDP3sz6HcwpzWA; http://www.theglobeandmail.com/news/national/munyaneza-becomes-canadas-first-convicted-war-criminal/article1148631/
The 560-page judgment was issued by Quebec Superior Court judge André Denis. The trial was held without a jury, a choice that was made by the defendant in accordance with provisions of Canadian law.
After the Eichmann and Finta trials, involving second world war atrocities, this is probably the most significant and complex trial held on the basis of universal jurisdiction. Munyaneza had come to Canada in 1997, and was arrested in 2005 following an investigation. His trial has taken about two years. It is the first conviction by Canadian courts on the basis of universal jurisdiction.
Thanks to John McManus.

Kononov Case at European Court of Human Rights

Yesterday, I had the thrilling experience of arguing a case before the Grand Chamber of the European Court of Human Rights: Kononov v. Latvia. I was counsel for the Government of Latvia, which was seeking to overturn a ruling by a Chamber of the Court issued last July. The judgment is expected later this year.
The webcast of the hearing, along with explanatory documents, is available on the website of the Court: http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/Webcasts+of+public+hearings/. The case raises fascinating issues about retroactivity of criminal law, and the scope of the customary law concerning war crimes applicable in 1944, when the facts arose.
We arrived at the Court first thing in the morning. All of the teams were invited together to a short meeting with the President of the Court, Judge Costa, at which the format of the proceedings was discussed. At the meeting, we were two for Latvia, myself and the agent, there were two for Kononov, and two for the Russian Federation, which intervened in the case because Kononov is a Russian citizen. During the hearing itself, each of the two parties had 30 minutes for a presentation, and the intervenor, Russia, had 15. We expected there would be many questions from the judges, but there were none. We adjourned for a few minutes, and then each side had a short rebuttal. There was an audience of perhaps 150 people in the courtroom, and many journalists, including TV interviewers outside. I think there was a lot of media coverage of the hearing in the Russian and Latvian press.

Kindler Still Alive (and Well?)

Students of international law on the death penalty will know the name Joseph Kindler. His application to the United Nations Human Rights Committee was dismissed (http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/a442324952271a678025673000413d76?Opendocument), back in 1993, after he failed to fight extradition from Canada to the United States, where he had already been sentenced to death. Kindler was in the news last week, because the United States Supreme Court has just granted leave to appeal a ruling from the Pennsylvania Court of Appeal concerning a challenge brought by Kindler. It is now 18 years since he was extradited from Canada! Here is the application, which was granted by the Court: http://www.scotusblog.com/wp/wp-content/uploads/2009/05/08-992_pet.pdf.
By the way, the Human Rights Committee ruling has since been reversed: http://www.unhcr.org/refworld/country,,HRC,,CAN,4562d94e2,404887ef3,0.html. Moreover, the Supreme Court of Canada ruling that led to his extradition has also been reversed: http://csc.lexum.umontreal.ca/en/2001/2001scc7/2001scc7.html.
Thanks to Mark Warren.

Selected Decisions of the Committee Against Torture

The first volume of 'Selected Decisions of the Committee Against Torture' is available on line in pdf format:
http://www.ohchr.org/Documents/Publications/SDecisionsCATVolIen.pdf
This useful volume facilitates searching the case law of the Committee.

Independent Fact Finding Commission on Gaza Report

The Independent Fact Finding Commission on Gaza, chaired by Professor John Dugard, has presented its report to the League of Arab States:
http://www.filedropper.com/reportoftheindependentfactfindingcommitteeongaza30april2009final
The report concludes that war crimes were committed by both sides in the conflict, and that Israel was also responsible for commission of crimes against humanity. It has an interesting discussion about the relevance of genocide charges but finds that this cannot be sustained. The report also discusses the validity of the declaration of jurisdiction to the International Criminal Court by the Palestinian Authority. It says that if the Security Council does not trigger the situation to the Court, the General Assembly should take action under the Uniting for Peace resolution.
Another report, prepared by an independent investigative body chaired by Ian Martin, was presented to the United Nations Secretary General last month:
http://www.un.org/apps/news/story.asp?NewsID=30706&Cr=gaza&Cr1=inquiry
I don't believe that the report itself is in the public domain. Ban Ki Moon has sent it to the Security Council. According to a media account issued last week, the report condemned Israel for war crimes, and was in turn condemned by Israel for being one-sided:
http://www.timesonline.co.uk/tol/news/world/middle_east/article6229545.ece

In memoriam: Henry T. King, Nuremberg Prosecutor

Henry T. King, Jr., who worked as a prosecutor at the Nuremberg trial, died on Saturday, 9 May 2009, just a few weeks before his 90th birthday. Henry’s last televised speaking appearance was with me on a panel entitled “High Crimes, High Drama,” at the Maltz Museum of Jewish Heritage in Cleveland on 10 December 2008 (http://www.youtube.com/watch?v=1z7IRYpQ5CA)
Henry was still working as a professor at the Case Western University School of Law at the time of his death. Michael Scharf, who directs the Cox Centre at Case, writes:

At the age of 25, fresh out of Yale Law School (B.A. 1941, LL.B. 1943), Henry
was hired as the youngest Prosecutor at the Nuremberg Trials. At Nuremberg,
Henry worked on the Justice and Ministries cases, led the prosecution of former
Luftwaffe Field Marshall Erhard Milch, deputy head of the Luftwaffe under
Hermann Goering, in the High Command trial. Henry interrogated many of the major
Nuremberg defendants, including Albert Speer, who Henry later chronicled in a
critically acclaimed book, The Two Worlds of Albert Speer: Reflections of a
Nuremberg Prosecutor. (http://www.lauferfilm.com/king/)

Upon returning to the United States, Henry served as director of the Agency for
International Development during the Eisenhower Administration, and worked as a
chief corporate international counsel for more than twenty years with TRW Inc.,
and later was of counsel at Squire, Sanders & Dempsey LLP. He then joined
the faculty of Case Western Reserve, where he taught International Business and
International Arbitration, both favorites of our students that consistently had
long wait lists.

Through the conferences he organized in the late 1980s
as Chairman of the Canada-United States Law Institute, Henry played an integral
role in facilitating the drafting and negotiation of the North American Free
Trade Agreement.

In 1998, Henry and two other 80-something-year-old
former Nuremberg prosecutors, Whitney Harris and Ben Ferencz, participated in
the Rome diplomatic conference to create a permanent international criminal
court and used their unique moral authority, dogged persistence, and skills of
persuasion to convince the delegates to include the crime of aggression in the
Court’s statute (pending agreement on a definition and trigger mechanism). Last
fall, in cooperation with the President of the ICC Assembly of States Parties,
Henry co-chaired a conference and experts meeting on “The ICC and the Crime of
Aggression” at Case Western Reserve, which developed proposals that
significantly advanced the effort to define the crime and the conditions under
which the Court could exercise its jurisdiction over it.

Henry was an influential leader of the American Bar Association, serving in the 1950s as Chair of the International Law Section, and later as a member of the ABA’s
special task force on war crimes in the former Yugoslavia. In addition he was
the U.S. chairman of a joint working group, organized by the American, Canadian,
and Mexican bar associations, on the settlement of international disputes. Henry
also founded the 200-member Greater Cleveland International Lawyers Group.

In 2004, Henry was appointed Canada’s Honorary Consul General for
Cleveland and Northeast Ohio. The Canadian Government, U.S. Department of
Justice Office of Special Investigations, Robert H. Jackson Center, and Case
Western Reserve University President Barbara Snyder, among others, paid tribute
to Henry at a recent event honoring his 65 years of accomplishments and public
service.

At a luncheon session that I attended a few months ago in which
Henry reflected on insights gained over the years, he told the standing-room
crowd of students that “the most important thing is to find some way to leave
your mark for the betterment of society and the world.” Henry left his mark in a
big way. His life’s work and dedication to international justice is an
inspiration. He will be missed terribly.

Command Responsibility at the International Criminal Court

Amnesty International has submitted a brief in the Bemba case on the proper interpretation of article 28 of the Rome Statute, which codifies the concept of command responsibility: http://www.icc-cpi.int/iccdocs/doc/doc669669.pdf. Several prominent international criminal law experts were involved in its preparation, including Mike Newton, Patty Sellers and Charles Garraway. The big issue seems to be whether there is a requirement of causation, a hypothesis that the brief rejects. In other words, the crime of the commander is failure to exercise effective control over those under his or her command, regardless of whether there is any connection to the crime committed by the subordinates. The Prosecutor has filed a short document essentially endorsing the analysis of Amnesty International: http://www2.icc-cpi.int/iccdocs/doc/doc673528.pdfB.
Although this is certainly correct, in a theoretical sense, the question that then needs to be addressed is whether absent any causal link between the atrocities committed and the negligence of the commander, such a case is sufficiently serious to warrant the attention of the Court. Case law of the International Criminal Tribunal for the former Yugoslavia shows that in the relatively rare cases where offenders are convicted on the basis of command responsibility, the sentences have been relatively low, indicating that they were not of comparable gravity to those involving intentional criminal conduct.
The Prosecutor has declined to prosecute cases of wilful killing (see, for example, his February 2006 statement on Iraq) because the number of victims was not large enough. An explanation as to why a negligent commander, whose troops commit atrocities but where no causal connection is established with the failings of the commander, is of higher than wilful killers would be appreciated. I would be inclined to the view that if it cannot be proven that Bemba actually ordered or otherwise was involved in the direct commission of the crimes, then the Court might direct its attention elsewhere.
This is not to dispute that Bemba may be guilty in accordance with article 28 of the Statute. But maybe his case isn't high enough on the Richter scale of gravity if the Prosecutor can only prove negligence.

Two Perspectives on Human Rights

Two columns on a Stanford University blog address how human rigths are interpreted differently around the world: https://humanexperience.stanford.edu/thinkingtwice. One entry is by Chinese studies professor Ban Wang. His research interests include aesthetics, Chinese literature, and international politics. He recently edited a volume Words and Their Stories: Essays on Revolutionary Discourse in China. The other entry was written by Helen Stacy, a Senior Lecturer at the Stanford Law School and a Senior Fellow at FSI's Center on Democracy, Development, and the Rule of Law. Her latest work, Human Rights for the 21st Century: Sovereignty, Civil Society, Culture, was published earlier this year.
Thanks to Corrie Goldman.

Alex Neve's Blog on Chad Mission

Alex Neve, who is the head of Amnesty International's Canadian section, is on a mission to Chad. He has been keeping a blog, using a satellite phone link: http://www.amnesty.ca/blog2.php?blog=chad_mission&category=231.

United States Human Rights Commitments

A few weeks ago, the United States government announced its intention to run for a seat on the United Nations Human Rights Council. Although this is an alection, apparently New Zealand has agreed to stand aside so that this will be, essentially, uncontested. Nevertheless, all candidate countries are required to make pledges and commitments about human rights. Those of the United States were announced last week: http://www.state.gov/documents/organization/122476.pdf

Council of Europe Sixtieth Anniversary

The Council of Europe has set up a 60th anniversary website, which is full of historical information as well as news about activities for the commemoration. By means of a map or list of diary dates, Internet users can find out about events that interest them. They also have access to a photo gallery showing the 60th anniversary logo and the commemorative stamps issued by partner national post offices. A video library presents several commemorative films: http://www.coe.int/60years/

System to Submit Journal Articles for Publication

This week, we have been holding the annual doctoral seminar at the Irish Centre for Human Rights. During a discussion about publishing, reference was made to a web-based system for the submission of journal articles: http://law.bepress.com/expresso/
Thanks to Meg de Guzman.

Post-Doc Positions in Human Rights

Two three-year Post Doctoral positions are open in the project "Should States Ratify Human Rights Conventions?" at the Norwegian Centre for Human Rights, Faculty of Law, University of Oslo. Closing date for applications is 19 May 2009,
Post-doc 1 (Law): Individual Complaints in Human Rights Treaty Bodies.
Post-doc 2 (Philosophy/Political Theory): Normative issues concerning Human Rights Conventions.
See http://www.admin.uio.no/opa/ledige-stillinger/2009/vitenskapelige/2PostDoctorSMR-2009-1418.html
Thanks to Geir Ulfstein.

New Issue of Göttingen Journal of International Law

In one of the Woody Allen films, he says he has taken a speed reading course, and that he was able to read Tolstoy's War and Peace in seven minutes. The interviewer asks Woody to explain what it is about, and he says: 'Russia'.
So it is with the second issue of the Göttingen Journal of International Law (www.gojil.eu), which contains:
'Planting the Flag in Arctic Waters: Russia’s Claim to the North Pole' by Nele Matz-Lück
'Russia and Human Rights: Incompatible Opposites?' by Bill Bowring
'International Law in Russian Textbooks: What’s in the Doctrinal Pluralism?' by Lauri Mälksoo
'Protection against Indirect Expropriation under National and International Legal Systems' by Max Gutbrod, Steffen Hindelang and Yun-I Kim
'Geopolitics at Work: the Georgian-Russian Conflict' by Peter W. Schulze
'The War between Russia and Georgia – Consequences and Unresolved Questions' by Angelika Nußberger.
Thanks to Matthias Lippold .

Cassese Interview About Lebanon Tribunal

Here is an interesting interview with President Antonio Cassese of the Special Tribunal for Lebanon: http://aawsat.com/english/news.asp?section=3&id=16550
Thanks to Emilia Richard.

Special Tribunal for Lebanon in Action, Four Generals Released

We are starting to get some judicial activity at the Special Tribunal for Lebanon. Here is its website: http://www.stl-tsl.org/action/home. Earlier this week, the Pre-Trial Judge ordered the release of four generals who have been in detention for years awaiting prosecution by the Tribunal. It was on an application from the Prosecutor, who said he did not have enough evidence and that the generals were not even serious suspects. The decision and the motion have not yet been posted, howver. A website called ‘Arab Media Shack’ has an article on this: http://arabicsource.wordpress.com/2009/04/29/release-the-generals/.
Thanks to Sandra Sahyouni

More on US Torture Cases and Possible Prosecutions

My search for a state willing to prosecute US leaders for torture is apparently not without an answer. Spanish judge Balthazar Garzon – who else? - has started a criminal investigation into the suspected torture of detainees in Guantanamo Bay , saying he would target both US military personnel and those who issued their orders: http://english.aljazeera.net/news/europe/2009/04/2009429193945860316.html.
There are a couple of terrific articles on the practice of torture by Mark Danner in recent issues of the New York Review of Books, and these are apparently available on line: http://www.nybooks.com/articles/22530; http://www.nybooks.com/articles/22614
Thanks to Mercedes Melon and Joe Powderly.