Chinese Supreme Court Calls for Big Reduction in Capital Punishment

According to Zhang Jun, vice-president of the Supreme People's Court of China, the Court will in future impose more suspended death sentences, and reduce the number of people it executives to ‘an extremely small number’ (http://news.bbc.co.uk/1/hi/world/asia-pacific/8174306.stm). Zhang was quoted in the China Daily saying legislation would be improved to reduce the number of death sentences, and that the Supreme People's Court would tighten restrictions on the use of capital punishment. He said: ‘As it is impossible for the country to abolish capital punishment under current realities and social security conditions, it is an important effort to strictly control the application of the penalty by judicial organs.’
We have difficulty measuring the progress, because China doesn’t publish any statistics on the use of the death penalty, however. Amnesty International is reported as saying China executed 1,718 people in 2008.
I have been a frequent visitor to China for seminars and discussions on the death penalty, and my book The Abolition of the Death Penalty in International Law was published last year in a Chinese translation. Today’s report seems consistent with recent observations and statements by our friends and colleagues in China. At the first seminar I attended on capital punishment in Beijing, nearly a decade ago, our Chinese counterparts gave us cold stares when we spoke about capital punishment, and told us we were indulging in a European fetish. But more recently, we have met with general agreement on the desirability of abolishing capital punishment. The Chinese tell us it will take a little time to do this, however. So we may disagree now about how long it will take, but not about the ultimate goal. In this respect, the debate is more advanced than it is in the United States.

Karadzic the Soothsayer

There is an interesting feature article in the New York Times magazine about Radovan Karadzic's days as a new age proponent, while on the run from the International Criminal Tribunal for the former Yugoslavia: http://www.nytimes.com/2009/07/26/magazine/26karadzic-t.html?pagewanted=1&_r=1. The photo shows some of the people he was involved in, displaying some kind of gadget that is used to neutralise hostile rays or something like that.

French Mayor Prosecuted for Israel Boycott Call, Loses at European Court of Human Rights

A seven-judge Chamber of the European Court of Human Rights, with one judge dissenting, has upheld the conviction of a local mayor for making comments susceptible of provoking discriminatory conduct, contrary to the French Penal Code. The major, Jean-Claude Willem, had called for a boycott of Israeli products, and had publicized his call on the website of the municipality. Rejecting his complaint based upon a violation of freedom of expression, the European Court of Human Rights said that he had certain duties, as mayor, of neutrality and reserve and that he had not respected these. The Court said that while he was entitled to his opinions, he had overstepped the line in calling for a boycott of all Israeli suppliers, which the Court said amounted to discrimination. See: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionSimilar=26970316&skin=hudoc-en&action=similar&portal=hbkm&Item=1&similar=frenchjudgement
At present, the decision is only available in French.
Thanks to Michael Kearney.

Judge Flügge of ICTY on Genocide in Srebrenica

Last week, Judge Christophe Flügge, who is sitting as a member of the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia in the Karadžić case, gave an interview in Der Speigel in which he made comments about legal issues relating to the crime of genocide (for the English version, see : http://www.spiegel.de/international/spiegel/0,1518,635205,00.html). Here is the relevant portion :

SPIEGEL: The Karadzic case deals with the issue of responsibility for mass killings, which are being referred to as genocide. However, international law experts are divided over whether the Srebrenica massacre can be defined as genocide.
Flügge: I don't want to discuss this specific case. More generally, however, I do ask myself whether we even need the term genocide to characterize such crimes. Why do we have to draw this distinction in the first place? Does it make it more or less unjust when a group of people is killed, not for national, ethnic, racist or religious reasons, as regulated in our statute, but merely because these people all happened to be in a certain location? This was often the case during Stalin's battle against the so-called Kulaks in Ukraine.
SPIEGEL: That wouldn't have fallen under the elements of the offense of genocide.
Flügge: Which is why I believe that we should consider devising a new definition of the crime. Perhaps the term mass murder would eliminate some of the difficulties we face in arriving at legal definitions. It would also work in Cambodia, where Cambodians killed large numbers of Cambodians. What do you call that? Suicidal genocide? Sociocide? Strictly speaking, the term genocide only fits to the Holocaust.

These statements are controversial, and have provoked angry responses, especially from Bosnia and Herzegovina. But they are hardly shocking, and constitute a useful reflection on the use of the term and its utility under international law. He is certainly not alone to express such ideas. Others, such as Prof. David Scheffer, have said as much, proposing that there should be an overarching concept known as ‘atrocity crimes’. The Albright-Cohen task force, whose report was discussed in this blog last December, took a similar approach. Rather than abandon the term genocide, it preferred to use it as an umbrella term to cover all serious international crimes, including war crimes and crimes against humanity. But the result is the same.
Debating whether or not a crime is genocide certainly has legal significance when matters like the application of the 1948 Convention are concerned. It is decisive to the jurisdiction of the International Court of Justice However, Judge Flügge has a point when the work of the International Criminal Tribunal for the former Yugoslavia, which can prosecute genocide, crimes against humanity and war crimes, and which has held that there is no hierarchy between the crimes, is concerned.

Quiz to Mark the Sixtieth Anniversary of the Geneva Conventions

Who says that war crimes can’t be entertaining? The Trial-ch website has prepared a quiz to test your knowledge of the Geneva Conventions (http://www.trial-ch.org/en/act/60-years-of-the-geneva-conventions.html). They celebrate the sixtieth anniversary of their adoption on 12 August 2009.
Thanks to Philip Grant.

New European Court Decision Raises Issue of Capital Punishment

A ruling by a Chamber of the European Court of Human Rights issued two weeks ago has declared admissible an application by two Iraqi nationals who claim that their surrender by United Kingdom forces to the Iraqi authorities when there was a real risk of being subjected to an unfair trial before the Iraqi High Tribunal followed by execution by hanging constituted a violation of their rights under article 2, 3 and 6 of the European Convention on Human Rights (available here).
This is the case that I reported on at the beginning of January. The Court had asked the UK not to proceed with the surrender, and although an initial injunction was issued by a UK judge to prevent this, it was subsequently overturned under what remain rather mysterious circumstances.
The case will now proceed on the merits.

Finally, an Extradition to Rwanda

Yesterday, Sweden’s Minister of Justice announced that her country will extradite Sylvere Ahorugeze, a 53-year-old former director of Rwanda's civil aviation authority, to stand trial in Rwanda for charges of genocide (available here).
This is the first European extradition to Rwanda of a genocide suspect. Over the lasat year, several other countries – the United Kingdom, France, Germany, Switzerland – have refused to extradite, largely on the impetus of rulings of the International Criminal Tribunal for Rwanda. The International Tribunal has refused to authorize the transfer of several suspects that it would prefer not to try itself, because it is trying to wrap up its work (the so-called 'completion strategy). Its judges set a very high standard, arguably one that is greater than what should be required for extradition. They insisted that Rwanda, an impoverished third world country, provide a witness protection programme for defence witnesses that would not exist in most European countries, and dismissed Rwanda's proposed solution to address the problem of reluctant defence witnesses living abroad, which was to hear them using videoconference, as being unfair. Be that as it may, the unintended consequence of these recent rulings of the International Tribunal, spurred on by certain human rights NGOs, has been to enhance impunity, not reduce it. Several genocide suspects, including four in the United Kingdom, have simply been released.
Now Sweden has had the courage to take the lead in sending a suspect back to Rwanda. The ministerial decision follows a ruling by Sweden’s Supreme Court in late May authorizing the extradition. The Swedish judges were well aware of the case law of the International Tribunal. Announcing the extradition, the justice minister referred to general improvements in Rwanda's justice system and legislative reforms, some of them adopted in the last few months.
Meanwhile, the International Criminal Tribunal for Rwanda is likely to revisit the matter of transferring cases to the Rwandan courts in the coming months. A few weeks ago, I heard Prosecutor Jalloh speak in The Hague about his plans to reapply for authorization to transfer cases to Rwanda. He explained that Rwanda had made important changes to its legislation, and to its witness protection programme. These reforms address the objections of the judges. Prosecutor Jalloh said the same thing yesterday at a conference in Geneva that I am attending. Moreover, at the conference in The Hague, President Byron of the Tribunal spoke of the new applications in a positive manner (although within the bounds of judicial discretion, of course).

Contaminated Judges

A reader of the blog has written pointing out that the two ‘contaminated judges’ on the Appeals Chamber were not involved in Lubanga, and that they are therefore in a position to hear appeals arising out of that case. But both judges have been involved in decisions in Situation in the Democratic Republic of the Congo, which was and remains the responsibility of Pre-Trial Chamber I. Article 39 of the Statute says that ‘under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case’. As can be seen, article 39 doesn’t address the issue of a judge who has sat in the pre-trial phase sitting on appeal. But that is easily explained. The drafters of the Rome Statute probably thought this to be an impossible scenario, given the separation of the chambers. Later, when it occurred to the Court that on occasion it might be necessary to draw upon the Pre-Trial or Trial Chambers for a judge to replace a recused judge in the Appeals Chamber, Regulation 12 of the Regulations of the Court was adopted. It says essentially the same thing as article 39.
Does the fact that these judges were involved in proceedings concerning the ‘situation’, at a time when several defendants, including Lubanga, were already identified as cases within that situation, mean that they participated in the case? Can readers of the blog enlighten us on this matter?

African Union Defying International Criminal Court

African States have traditionally been among the strongest supporters of the International Criminal Court. But since the proceedings began against President El Bashir of Sudan, just one year ago, the wind has changed. A few days ago, the African Union agreed by consensus to a resolution declaring that ‘The AU member states shall not co-operate... relating to immunities for the arrest and surrender of Sudanese President Omar al-Bashir to the ICC.’ The statement is not available on the AU website, but I have managed to obtain a copy: http://www.mediafire.com/?oiz295lpz0r.
President Mills of Ghana (which has a judge at the Court) told the media yesterday that 'he was convinced by the argument that the court's case against President al-Bashir differs from cases against former Congolese rebel leader Jean-Pierre Bemba and Ugandan rebel leader Joseph Kony'. It seems clear that by prosecuting an African head of State, some sort of qualitative change took place. The issue of immunity is not a simple one, and unfortunately the Bashir arrest warrant decision of March 2009 completely glossed over the nuances.
According to the Pre-Trial Chamber in the arrest warrant, Bashir has no immunity before the Court because article 27 of the Statute says there is no immunity before the Court. The problem – which the Pre-Trial Chamber did not address – is that article 27 may only apply to States that have joined the Court. Immunity of heads of State results from customary international law, and it seems it can only be taken away from a State if it agrees. That is what article 27 does. By ratifying the Rome Statute, States agree that their head of State enjoys no immunity before the Court. And that is why article 27 only applies to States that have joined the Court, and not to States that have. A day or two after the arrest warrant against Bashir was issued, the Guardian editorialist perceptively noted that the Americans, in their glee about the arrest warrant, should understand the consequence: their president too is subject to prosecution by the Court. Like most provisions in the Statute, there is more than one plausible interpretation. But the judges of the Pre-Trial Chamber might have addressed the difficulty and not ignored it.
Many commentators answer that Bashir has lost his immunity because of the Security Council resolution. The case comes to the Court not by the consent of Sudan but by resolution of the Security Council. But that argument is not straightforward either. First, the Security Council did not strip Bashir of his immunity in any explicit manner. So the theory that its resolution removes his immunity is based upon implication. Here’s the problem: the Security Council only triggers prosecutions at the Court, it does not change the Statute. The Security Council cannot add crimes to the Statute, or change the age limit for prosecution, or require it to deal with cases prior to 2002. I think the Security Council takes the Statute as it finds it. It is in no different a position than a State Party that refers a situation to the Court. And if a State Party cannot refer a situation to the Court by which a head of State is stripped of immunity, then how can the Security Council do it?
Whatever the legalities – and these legal problems are raised in the African Union resolution – the real problem is a political one. The Court hardly needs this antagonism from Africa. When the Prosecutor declined to go after the British with respect to war crimes perpetrated in Iraq, many found his explanations to be unconvincing. It was often said that the decision was ‘political’, because it would be reckless to bite off such an ambitious case in the early years of the Court. And that made some sense. If the United Kingdom were to be angry with the Court, then that might have serious consequences, especially in its fragile, early years.
Instead, the Prosecutor has chosen ‘soft targets’, compliant African States. But it looks like the Court may have bitten off more than it can chew. If the Court is going to be ‘political’ about NATO States, and about its wealthy supporters, then it needs to show the same kind of deference to African States. Otherwise, they will react just as they have done. We all want a Court that is free of these political concerns. But as it flexes its muscles and shows that it is not afraid to go after even a head of State, maybe it should have started with a European instead of an African?

Further on the Eating Disorders at the International Criminal Court

A few weeks ago, this blog published a short note about the recent plenary of the judges of the International Criminal Court, which decided not to revise its decision appointing two ‘contaminated’ judges to the Appeals Chamber. Apparently, some members of the Court were upset that confidential information about the Plenary was revealed in this blog. It should be obvious to all that I am not a member of the Plenary, and so I was not the person who breached rules of confidentiality. I only reported what I learned, from a variety of sources. I think that if the judges of the Court want their meetings to be confidential, then they shouldn’t talk to all and sundry about what goes on in those meetings.
This raises the issue of the secrecy of the Plenary meetings. One of the great features of the Court is its transparency. Is there any good reason why the proceedings of the Plenary should be secret? Isn't the public interest served by an open discussion of this issue? To the insiders, there is nothing secret about it. The NGOs know about it. Diplomats know about out. Only the public is kept in the dark.
Apparently one of the developments that provoked the plenary was a report of the Committee on Budget and Finance of the Assembly of States Parties, which is not yet available on the website of the Court. Here are the relevant paragraphs:

1. “Contamination” of judges
107. The Committee received a copy of the letter of the President of the Assembly to the President of the Court, dated 9 April 2009, expressing the concerns of the Bureau at the manner in which the Appeals Division had been composed by the plenary of judges. The Committee also received an informal paper from the Presidency on the matter.
108. The Committee recalled that as of its eighth session, it had “agreed that, before any further proposals were made to increase the provision of legal support in Chambers, the Court should provide a revised staffing structure.” The Committee expressed concern with the financial implications that the composition of the Appeals Division could have in terms of the amount of work the two “contaminated” judges may be able to engage in over the next few years, as well as the impact on any legal officers working with these judges. The Committee requested that a detailed report outlining the scope of the issues, the potential costs for major programme I and the impact on the establishment of efficiency measures within the Court be provided along with a revised staffing structure prior to its next session.

Any reasonable observer will understand the concerns of the Assembly of States Parties. Two of the five judges on the Appeals Chamber cannot sit in appeals that come from the Lubanga, Katanga and Bashir cases. Lubanga is the first (and only) trial, and Katanga will be the second trial when it starts later this year. For the next couple of years, it seems that the two judges will only need to work part time (while their colleagues work overtime, to make up for their absence). What the Committee meant in paragraph 108 is that it will withhold funding for professional assistants to the two judges, given that the need simply is not there. Member States of the Court (who also know about what went on in the Plenary, and not because they read my blog) are studying various proposals on how to address this new situation. Apparently one idea is to change the Rules of Procedure and Evidence so as to allow the Appeals Chamber to sit with three judges. It is certainly naive to think that the story ends with the decision of the judges not to reconsider their decision.

Liberian Truth Commission Report Names President Sirleaf as War Crimes Suspect

Early last week, the Liberian Truth and Reconciliation Commission released its report: https://www.trcofliberia.org/. It has attracted international attention mainly because of its recommendation that President Sirleaf be barred from office and that she be prosecuted for war crimes (p. 271, of volume 2). Several media accounts claim that the report was withdrawn by the Commission within hours of its release (see, for example, Nicholas Kristof in the New York Times), but I had no trouble locating it this morning.
The Commission has had its share of troubles, and there were even reports a year or so ago that its own members had been in a fist fight with each other! Presumably, they have now reconciled.

Another Right to a Passport Case

Some weeks ago, I reported on a Canadian case ordering the issuance of a passport. The Canadian authorities have issued the passport, and are not appealing the ruling. Yesterday, the European Court of Human Rights issued a judgment against Bulgaria, ordering issuance of a passport.
On 20 June 2001, Mihail Ignatov, made an urgent application for a passport in order to travel to Romania to fetch his daughter from Bucharest Airport three days later. The application was refused on the ground that he was barred from obtaining a passport as a result of an administrative measure taken in the context of civil proceedings brought against him by a bank in late 1998 for failure to repay a loan. Applying article 2 of Protocol No. 4 to the European Convention on Human Rights, which guarantees freedom of movement, the Court said such a measure could not remain in place over a long time without periodic reassessment of its justification. Ignatov had been prevented from travelling on the basis of a restrictive measure which had long since lost all justification and had remained in force because of the inaction of the competent authorities. His right to a remedy was also violated. See: http://www.echr.coe.int.
Thanks to Brice Dickson