Cambodia Trial of Duch

David Scheffer is in Pnomh Penh covering what appear to be the final days of the Duch trial before the Extraordinary Chambers of the Courts of Cambodia. Check out his blog: http://www.cambodiatribunal.org/

Cruel Britannia

Human Rights Watch have just published: 'Cruel Britannia: British Complicity in the Torture and Ill-Treatment of Terror Suspects in Pakistan' (http://www.hrw.org/en/reports/2009/11/24/cruel-britannia-0). As the title suggests, the report does not find that British officials directly participated in the torture of suspects; according to the report, however, 'UK complicity is clear' because, firstly, it is inconceiveable that the British government did not know about the systematic use of torture in Pakistan; secondly, British officials engaged in acts that required that they knew about the use of torture in specific cases (interrogations conducted by British officials with individuals on whom the evidence of torture was visible); thirdly, the UK supplied questions in cases in which detainees were tortured. The report draws on the Guardian's investigative reporting (http://www.guardian.co.uk/world/2009/nov/24/british-torture-human-rights-pakistan) as well as its own research. The report not only documents UK complicity but also points out that this complicity has prevented prosecution of suspects in UK courts. Among other things, the report recommends that an independent public inquiry be opened to investigate British complicity.
Thanks to Michelle Farrell.

Sierra Leone Truth and Reconciliation Commission Report

The Sierra Leone Truth and Reconciliation Commission issued its report in October 2004. Apparently, the report is no longer available on the internet, so I have up-loaded it: The report consists of three small summary documents, on ‘findings’ (http://www.filefactory.com/file/a1dg544/n/trc_report.findings.pdf), ‘overview’ (http://www.filefactory.com/file/a1dg550/n/trc_report.overview.pdf) and ‘recommendations’ (http://www.filefactory.com/file/a1dg56a/n/trc_report.recommendations.pdf). There are three volumes in the report as such:
Volume I: http://www.filefactory.com/file/a1dg6a6/n/trc_report.vol._1.pdf
Volume II: http://www.filefactory.com/file/a1dg9g5/n/trc_report.vol._2.pdf
Volume 3A: http://www.filefactory.com/file/a1dg8c9/n/trc_report.vol._3A.pdf
Volume 3B: http://www.filefactory.com/file/a1dg86g/n/trc_report.vol._3B.pdf

Russian Constitutional Court Knocks Out Death Penalty

On 19 November, the Constitutional Court of Russia ruled that no one may be sentenced to the death penalty, beginning 1 January 2010: http://en.rian.ru/russia/20091119/156908152.html. The constitutional proceedings were triggered by the Supreme Court. Previously, the death penalty could not be used by the courts because of the lack of juries throughout the country.
Here is a rough translation of the Court's holding (the full judgment is not yet available): 'In the past 10 years, a comprehensive moratorium on the death penalty has been in place in the Russian Federation. In this period, firm guarantees of the right to not be subjected to a death penalty have been formed and the legitimate consitutional regime to that effect has emerged. They honour the international commitments assumed by Russia and serve as a manifestation of an irreversible process directed at the definitive abolition of death penalty as an exceptional measure of punishment of temporary character applicable in the transitional period'.
Russia's last official executions date to 1996 (although some were reported in Chechnya in 1999). Presidential intervention has prevented its implementation since then. Abolition of the death penalty is, of course, a condition of Russia's membership in the Council of Europe.
Apparently, legislative amendments have been tabled in the Duma by the President. Hopefully, Russia will soon ratify the 6th and 13th protocols to the European Convention on Human Rights.
Thanks to Sergey Vasiliev and Gleb Bogush.

Second Trial at International Criminal Court to Begin Tuesday

The second trial at the International Criminal Court, of Katanga and Ngudjolo, is scheduled to begin on Tuesday 24 November. Katanga and Ngudjolo are accused of war crimes and crimes against humanity allegedly committed in the village of Bogoro in the Ituri district of eastern DRC from January to March 2003, including child soldier and rape charges.
The Coalition for the International Criminal Courtwill hold two live blogging sessions with NGO experts on the trial, with leading victims' rights advocates:
- Wednesday 25 November 2009, 10 - 11 a.m. CET:
Live blog discussion with Christian Lukusha, Executive director, Justice Plus, Ituri -DRC (Conducted in French)
- Wednesday 2 December 2009, 4 - 5 p.m. CET /10 - 11 a.m. EST:
Live blog discussion with Mariana Pena, Permanent Representative, International Federation for Human Rights (FIDH), The Hague - Netherlands (Conducted in English)
To follow the live discussion or read a transcript of the chat, go to www.iccnow.org/blog.
To submit questions ahead of the chat or during the chat, send email to communications@iccnow.org .

Doctoral Studentship in Human Rights and Drug Policy

The Irish Centre for Human Rights is currently accepting applications for a Doctoral Studentship in Human Rights and Drug Policy. The successful candidate will pursue doctoral research on a subject related to human rights law and drug policy at the Irish Centre for Human Rights at the National University of Ireland, Galway.
The Studentship is part of a new specialist research cluster at the Irish Centre for Human Rights dedicated to developing and promoting innovative and high quality legal and human rights scholarship on issues related to drug laws, policy and enforcement. In addition to the doctoral research, the holder of the Studentship will be expected to participate in, and assist the cluster with, various activities related to its mandate.
The successful candidate must have a high proficiency in verbal and written English.
This Studentship is currently available for a period of 12-months, with a stipend of €16,000 plus tuition fees and some money for research travel, and a possibility for extension dependent upon funding. The Studentship is scheduled to begin 1 February 2010, and the holder is expected to reside in Galway, Ireland and work full-time at the Irish Centre for Human Rights.
Please submit a covering letter and curriculum vitae, as well as a 250-word outline of the proposed area of research, no later than Friday, 18 December 2009, to: humanrights@nuigalway.ie
The successful candidate will be required to submit a full application for the doctoral programme, and the final award is conditional on admission by the University.

Beltway Sniper is Executed

John Allan Muhammed, the so-called ‘Beltway sniper’, was executed last night: http://www.reuters.com/article/domesticNews/idUSTRE5AA0B620091111.In%202002
In 2002, he engaged in a perverse shooting spree with an adolescent accomplice that involved a sniper rifle in the back of a car. The two would shoot people at random. The expression ‘Beltway sniper’ described the fact that the crimes took place in and around the Washington beltway, which separates the federal District of Columbia from the states of Maryland and Virginia.
One the aspects of the case that has always fascinated me is the fact that the majority of the killings took place in Virginia and Maryland, where the death penalty was in force. All that these two men, who killed at random, needed to do to avoid the death penalty was to drive a kilometre or two and place themselves on the other side of the beltway. Because there is no death penalty in the District of Columbia.
When I describe this in lectures, someone always says: ‘But how would they know that? Killers don’t think of such things. They think they won’t ever be caught.’
And that is exactly my point. If the death penalty had a real deterrent effect, when compared with lengthy imprisonment (which would be the fate in the District of Columbia), the ‘Beltway snipers’ would be expected to make sure they were inside the beltway and not outside.
Demonstrating that the death penalty has no additional deterrent effect over lengthy imprisonment (or, for that matter, the contrary) is a difficult proposition. But it seems that in the Muhammed case, we have a good example, in at least one case, to prove the fallacy of the deterrence hypothesis.
By the way, the American Law Institute, which is responsible for the authoritative Model Penal Code, has just removed the death penalty from the Code: http://intlawgrrls.blogspot.com/2009/11/no-more-model-code-on-capital.html.
Thanks to Nadia Bernaz.

European Court Nixes Crucifixes

A Chamber of the European Court of Human Rights ruled yesterday that displaying a crucifix in the classroom of a publicly-funded school is a violation of article 2(1) of the first Protocol to the European Convention on Human Rights: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionSimilar=36227362&skin=hudoc-en&action=similar&portal=hbkm&Item=19&similar=frenchjudgement. Article 2(1) states: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
The Court’s ruling, in Lautsi v. Italy, is only in French for the time being. The decisive paragraph, no 57, states : 'La Cour estime que l'exposition obligatoire d'un symbole d'une confession donnée dans l'exercice de la fonction publique relativement à des situations spécifiques relevant du contrôle gouvernemental, en particulier dans les salles de classe, restreint le droit des parents d'éduquer leurs enfants selon leurs convictions ainsi que le droit des enfants scolarisés de croire ou de ne pas croire. La Cour considère que cette mesure emporte violation de ces droits car les restrictions sont incompatibles avec le devoir incombant à l'Etat de respecter la neutralité dans l'exercice de la fonction publique, en particulier dans le domaine de l'éducation.’
Roughly translated: ‘The Court considers that the mandatory posting of a religion symbol of a particular religion as part of a public function to specific situations under govenrment control, in particular in classrooms, violates the right of parents to educate their children according to their beliefs, as well as the right of schoolchildren to believe and not to believe. The Court considers that such a measure violates these rights because these restrictions are incompatible with the duty on the State to be neutral in public services, en particular in the field of education.’
I would expect there is a lot of hand-wringing in Dublin today about this decision. The Irish school system was criticized by the Human Rights Committee last year in its concluding observations on the Irish periodic report (UN Doc. CCPR/C/IRL/CO/3): ‘22. The Committee notes with concern that the vast majority of Ireland’s primary schools are
privately run denominational schools that have adopted a religious integrated curriculum thus depriving many parents and children who so wish to have access to secular primary education. (arts. 2, 18, 24, 26). The State party should increase its efforts to ensure that non-denominational primary education is widely available in all regions of the State party, in view of the increasingly diverse and multi-ethnic composition of the population of the State party.

Ben Ferencz Interview

Ben Ferencz was the prosecutor of the famous Einsatzgruppen trial, one of the post-war prosecutions organised by US military tribunals. Here's a recent interview with Ben: http://www.pbs.org/pov/reckoning/interview_ferencz.php. And if you want to read the judgment, and the trial proceedings, see: http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-IV.pdf. There is a new book on the case: Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958
Atrocity, Law, and History, New York: Cambridge University Press, 2009: http://www.cambridge.org/us/catalogue/catalogue.asp?isbn=9780521456081&ss=fro. The picture,which I took last year, shows the Nuremberg courtroom where Ben argued the case.

Karadzic Trial

Some interesting submissions to the blog on the Karadzic trial. Here's a piece on the legal options open to the Trial Chamber to deal with Karadzic's refusal to attend trial: http://www.internationallawbureau.com/blog/?p=851.
And a Newsnight report on the trial questioning whether the proceedings will reveal the advance knowledge of western powers about the attacks on Srebrenica, Zepa and Gorazde. It features interviews with Sir Geoffrey Nice, Mohamed Sacirbey (the former Bosnian foreign Minister), the former Dutch Defence Minister during the fall of the enclaves and an old interview with Richard Holbrooke (to add a little conspiracy twist to the tale): http://news.bbc.co.uk/1/hi/programmes/newsnight/8321388.stm.
Thanks to Niamh Hayes and Fidelma Donlon.

Piracy, the Crime of Crimes?

There is a lot of talk about adding some new crimes to the subject matter jurisdiction of the International Criminal Court, or about setting up some new tribunal to deal with the scourge of piracy. I agree with Professor Antonio Cassese, who writes in his book International Criminal Law that piracy is not an international crime, in the sense that it 'was (and is) not punished for the sake of protecting a community value...' (2nd ed., p. 12, italics in the original). Piracy should not be lumped with the international crimes of genocide, crimes against humanity and war crimes. We do this intuitively when we romanticize pirates, something we do not do with génocidaires. I had to wait until Halloween to make this point, so that I could run a photo of my grandson Thomas. Don't expect him to dress up as Eichmann next year, because he reads his granddad's blog (he's not ready for Cassese for a few more years, I'm afraid)!

Sierra Leone Special Court Prisoners Will Serve Terms in Rwanda

The eight persons convicted by the Special Court for Sierra Leone have been transferred to Rwanda, where they will serve their sentences, which range from 15 to 52 years. They will be detained at the Mpanga Prison, which is about a two-hour drive from Kigali.
This is a sign of the times. It wasn't long ago that the prison conditions in Rwanda were being denounced as the worst in the world. Some of them, no doubt, are still pretty wretched. Mpanga was built about four years ago with financial assistance from the Dutch government.
I visited the Mpanga Prison a couple of years ago, and was impressed with what I saw. I was there to inspect the special wing of the prison where transfer prisoners from the International Criminal Tribunal for Rwanda are to be held, if the judges of the Tribunal ever authorise referral of their excess case load to the Rwandan justice system. The prisoners from Sierra Leone will be held in the same special part of the prison, which is segregated from the rest of the institution. There are several thousand inmates in Mpanga, essentially all of them for genocide-related charges (at least, that is what I was told on my visit in 2007).
That leaves Charles Taylor, whose trial is still underway in The Hague. If he is convicted, there is a special arrangement whereby he is to serve his sentence in the United Kingdom. But Taylor, who has complained about the 'euro-centric' food in the Dutch penitentiary, might be happier in sunny Mpanga than he would be eating English prison food - one shudders at the thought - for the rest of his days!

An Ad Hoc Court for Darfur?

The African Union has agreed to propose establishment of a special court to deal with Darfur: http://news.bbc.co.uk/2/hi/africa/8333531.stm. The Peace and Security Council of the Union, meeting in Nigeria late last week, endorsed a report prepared by a panel that was chaired by former South African President Thabo Mbeki: http://www.africa-union.org/root/ar/index/Communiqu%20on%20Darfur%20_eng..pdf. According to the resolution adopted on Thursday, ‘Council urges, once again, the UN Security Council to heed the AU’s call for the deferral of the process initiated by the International Criminal Court (ICC) against President Omar Hassan Al Bashir, in the interest of peace, justice and reconciliation…’ The resolution adopted by the Council doesn’t make explicit reference to the proposed ad hoc court, but it does endorse very generally the recommendations of the panel chaired by Mbeki. The Mbeki panel report was not available on the African Union website. Perhaps a reader of this blog can share the report with us. I note that one of the members of the panel was Florence Mumba, who has served on the International Criminal Tribunal for the former Yugoslavia for many years.
Apparently the new court would consist of both Sudanese and international judges. It would function under the authority of the African Union, in cooperation with the Sudanese regime in Khartoum. A truth and reconciliation commission is also proposed.
Is this a new step forward in international criminal justice or is it a clever gambit to undermine the International Criminal Court, which issued an arrest warrant against Sudan’s president Bashir on 4 March of this year? Probably it is a bit of both.
With the ad hoc tribunals for the former Yugoslavia, Rwanda and Sierra Leone finishing their work, there is some traction for the view that a phase in international criminal justice has come to an end. The international community will eschew establishing new ad hoc tribunals because it now has a superior institution, the International Criminal Court, it is said. The main distinction of the International Criminal Court vis à vis the ad hoc tribunals is its political ‘purity’, many believe.
Perhaps, though, there are some advantages to the ad hoc model. It may well be that the so-called competitive advantage of the International Criminal Court is also its Achilles heel. In other words, for international criminal justice to function properly, possibly it requires a level of political direction and oversight. This is something that the African Union may think it can offer in the context of the Mbeki panel proposals.
The proposed African Union ‘Special Court for Darfur’ may represent a bit of a turning point in international justice, one that addresses a perceived shortcoming in the International Criminal Court model. It is too early to tell where this idea will go, but if the African Union is serious and its member states (including Sudan?) are supportive, my sense is that we are opening a new chapter in the development of international criminal justice.