Critical Words from Adam Hochschild on Outreach and the Lubanga Trial

Adam Hochschild has written a number of important books on mass violations of human rights, especially in the distant past. Probably his best-known work is King Leopold’s Ghost, about the brutal colonization of the Democratic Republic of the Congo.
Hochschild has been to the Congo to look at the impact of the Lubanga trial. His interesting account appears in the latest issue of The Atlantic: http://www.theatlantic.com/doc/200912/hochschild-war. Although his pen is gentle enough, this may be a case of damning with faint praise. Hochschild’s interest is with the outreach activities of the Court, and how the trial is perceived on the ground. He writes:

Next door to UN headquarters, 40 teenagers are sitting on rickety wooden chairs in a Catholic-mission library, where paint is peeling from the walls. According to the nonprofit group that has been working with the teens and has gathered them here today so they can learn about the ICC, all are former child soldiers. Next to their names on this morning’s roster appears an alphabet soup of different armed groups. Some have listed themselves as ex-combatants in Lubanga’s private army, others in the militias it fought.
Nicolas Kuyaku, the cheerful, energetic Congolese who runs the ICC’s ‘outreach’ office in Bunia, begins today’s session by showing 20 minutes of videos sent from The Hague. We see a brightly lit courtroom full of some two dozen people: solemn judges and lawyers in black robes and white jabots, an impassive Lubanga in a suit and tie in the dock, witnesses who testify about his use of child soldiers, plus a prosecutor, a defense attorney, and—an ICC feature loosely modeled after some European justice systems—a lawyer making statements on behalf of a group of victims...

The videos are in French, the language of Congo’s government, although few of the teenagers in the room speak it well. Furthermore, Kuyaku, who comes from another
part of the country, does not speak Swahili, eastern Congo’s lingua franca. After showing the videos, he talks animatedly in a mixture of French and another Congolese language, Lingala, which a sprinkling of those in the audience know, while an assistant intermittently translates a few sentences into Swahili…
When the Q&A period begins, however, most of the teenagers who speak up are anything but enthusiastic. Why is Lubanga on trial, one asks, when ‘others who did the same thing are working within the government?’ And indeed this is true, for in a series of half-effective peace accords, many former warlords have been absorbed into the corrupt and inept Congolese national army. ‘Lubanga did not conscript forcibly’, another boy says. ‘We went voluntarily. I myself went voluntarily. It was to defend my community. Why is he being judged for this?’ A comrade adds: ‘I also was not forced to enter [Lubanga’s army]. All our houses were burned. We had nowhere to go—and Lubanga accepted me.’

‘What about those who killed Saddam Hussein?’ another boy asks. ‘Why are they not at The Hague?’…
At another session where Nicolas Kuyaku shows his videos, this time to Bunia municipal officials, I find myself wondering about the sheer visuals on the screen. We see the court’s headquarters in Holland, in two high-rise towers with an all-glass sky bridge between them. We see, in the spacious, wood-paneled courtroom itself, every official or attorney sitting in a comfortable rolling chair in front of a computer screen.
But computers are a luxury here in Bunia, and the few that can be found are hostage to erratic electricity. And when Kuyaku explains some of the features that to Western eyes seem hallmarks of a humane and enlightened judiciary—such as the court’s provision of funds for Lubanga’s lawyers and for visits by his wife and family—these things surely appear even more extravagant. Africans are so desperate to migrate to Europe that thousands have drowned at sea trying, yet an accused war criminal’s wife and kids get a free trip? What’s more, all three judges who are deciding Lubanga’s fate, from Britain, Bolivia, and Costa Rica, are white. The trial is ‘justice à l’occidentale’, one of the local officials says, shaking his head at the screen…

Briefly, Trial Chamber I had entertained the idea of holding hearings in Bunia, in the Democratic Republic of the Congo. This is allowed by the Statute. However, there was no enthusiasm from the Congolese government, which seems happy to have unloaded Lubanga on the International Criminal Court, and the idea was dropped.
Hochschild's article is not very long, and everyone interested in the Court should read it. Perhaps there is a brighter spin to be placed on what Hochschild witnessed, and maybe he saw the outreach of the Court on a bad day. But he’s a credible critic, and I doubt that there is any hostile agenda at work. Rather, this should be taken as friendly criticism. Hopefully, the Court will pay his disturbing account some attention.

Challenging the International Criminal Tribunals at the European Court of Human Rights

There has been much speculation over the years about the possibility of challenging decisions of the international criminal tribunals before the European Court of Human Rights. Some early attempts, including one by Milosevic, got knocked out for failure to exhaust domestic remedies. In surfing the Court’s website I came across two inadmissibility rulings issued earlier this year, in Galic (http://cmiskp.echr.coe.int/tkp197/view.asp?item=34&portal=hbkm&action=html&highlight=genocide&sessionid=41051435&skin=hudoc-en) and Blagojevic (http://cmiskp.echr.coe.int/tkp197/view.asp?item=35&portal=hbkm&action=html&highlight=genocide&sessionid=41051435&skin=hudoc-en). Both men were convicted by the ad hoc tribunals and had the verdicts confirmed (in part) by the Appeals Chamber. Basically, the European Court refuses to get involved, noting that the International Criminal Tribunal for the former Yugoslavia is a subsidiary body of an intergovernmental organization.

Dayton Agreement Provision Held Contrary to European Convention on Human Rights

The Grand Chamber of the European Court of Human Rights today held that a provision of the Dayton Peace Agreement preventing Roma and Jews from election to high office in Bosnia and Herzegovina is contrary to the European Convention on Human Rights: http://cmiskp.echr.coe.int/tkp197/view.asp?item=18&portal=hbkm&action=html&highlight=&sessionid=40897268&skin=hudoc-en. Hats off to my friend and colleague, Sheri Rosenberg, who argued the case for Jacob Finci, one of the leaders of Sarajevo's small Jewish community.
The judgment is not entirely unanimous, and there is a thought provoking dissent from Judge Bonello, who expresses his concern that the Court may be tampering with a successful peace agreement: 'Strasbourg has told both the former belligerents and the peace-devising do-gooders that they got it all wrong. They had better start all over again. The Dayton formula was inept, the Strasbourg non-formula henceforth takes its place. Back to the drawing board', writes Judge Bonello. Referring to the Convention's preamble, and its reference to peace (see my blog of last week on the rights to peace), Judge Bonello says: 'Again, one cannot possibly disagree with the almost platitudinous preamble of the Convention that human rights “are the foundation of peace in the world”. Sure they are. But what of exceptionally perverse situations in which the enforcement of human rights could be the trigger for war rather than the conveyor of peace?' He concludes: 'I cannot endorse a Court that sows ideals and harvests massacre.' Harsh words indeed, but worth further reflection.
I propose that we discuss this case at our next seminar, scheduled for the evening of 12 January.

Is Armed Conflict Worsening? Are There More or Less Deaths?

Scholars and activists in the human rights field, and especially those who work in the area of international tribunals, atrocity crimes and accountability, often bolster their arguments by asserting that ‘the twentieth century was the bloodiest in human history’. A related claim holds that today there are more deaths in internal armed conflict, as compared to international armed conflict.
Perhaps it is my own inherently optimistic nature, and my desire to demonstrate that there has actually been improvement in recent decades, that has made me wary of these arguments. I concede that there were more conflict-related deaths in the twentieth century than at any previous period of human history, but with the added detail that most of these deaths took place in the first half of the century, that is, related to the two world wars, and not in the second half. The point here is that the establishment of the United Nations in 1945, the prohibition of the resort to armed force to settle disputes in the United Nations Charter, and recognition of the crime of aggression at Nuremberg, have all made the world a safer and not a more dangerous place for human beings.
As for the issue of deaths in internal as opposed to international armed conflict, I suspect this is merely a way of deflected the observation that there have been many fewer deaths in international armed conflict since 1945. Prior to 1945 we didn't even pay much attention to deaths in non-international armed conflict, whereas I think that we count them now. In the past, they were an internal matter that escaped international scrutiny.
Admittedly my observations are anecdotal, and are also perhaps coloured by the result that I would like to reach. They are based on inutition, rather than hard research. More generally, I have often been suspicious of numerical claims as to the number of deaths in armed conflict. Just look at the conflict in Darfur as an example. A year ago, I heard the Prosecutor of the International Criminal Court claim there were 50,000 deaths a month in the region due to 'genocide'. In February, I heard Canadian MP Irwin Cotler call for bombing of the airports and blockading the harbours of Sudan in order to prevent the 'ongoing genocide'. Yet the reports from the Office of the High Commisioner for Human Rights suggest that the conflict-related deaths in Darfur now amount to a few thousand each year. Alex de Waal has written that you are more likely to be killed from conflict in Baltimore than you are in Darfur.
I was once challenged rather aggressively by some human rights activitists while teaching a course who insisted that it was necessary to exaggerate numbers of deaths in order to mobilise support. One thing that inflated claims do is deflect our attention from the more urgent matters. A boosted estimate of deaths in Darfur takes attention away from Gaza and Sri Lanka, for example.
There are scientists at work on this, using statistical analysis to debate the matter. One of the active research groups is in Vancouver, Canada, and it has produced the Human Security Report. Here is what the website says: ‘The first Human Security Report documents a dramatic, but largely unknown, decline in the number of wars, genocides and human rights abuse over the past decade. Published by Oxford University Press, the Report argues that the single most compelling explanation for these changes is found in the unprecedented upsurge of international activism, spearheaded by the UN, which took place in the wake of the Cold War.’ (http://www.humansecurityreport.info/). Others disagree, however, and there is a very recent account of debate in the academic literature at: http://www.hsrgroup.org/index.php?option=content&task=view&id=469. Here is an article taking the view that the numbers are rather high, published in the British Medical Journal: http://www.bmj.com/cgi/content/full/336/7659/1482 (for the answer to it, see: http://www.hsrgroup.org/images/stories/Documents/JCR_EstimatingWarDeaths.pdf). But I’m struck by the fact that even its estimates are rather low compared with some of the extravagant figures that get tossed around.
For years I have been looking for someone to do a doctorate on the statistical measurement of human rights violations. The number of deaths related to armed conflict would be one part of this. Anybody interested?

The Human Rights to Peace

Earlier this week, in Geneva, the Office of the High Commissioner for Human Rights hosted an expert meeting on ‘the right of peoples to peace’. It is the result of a call in a resolution adopted (but with opposition from the rich countries of the north) by the Human Rights Council last June. Materials concerning the meeting are available on the website of the High Commissioner: http://www2.ohchr.org/english/issues/rule_of_law/workshop/index.htm
I participated in the workshop, and spoke on two of the panels. The highlight of the conference was a wonderful address by Antonio Cançado Trinidade, a Brazilian scholar who was recently elected to the International Court of Justice.
A report will be prepared, and the matter will return to the agenda of the Human Rights Council in June 2010.
This is a long neglected aspect of human rights. In fact, there is still much debate as to whether it has a place in human rights law at all. This can be seen in debates about the introduction of the crime of aggression into the Rome Statute. For example, Amnesty International has not taken a position on the definition of the crime of aggression because it says that ‘its mandate - to campaign for every person to enjoy all of the human rights (civil and political and economic, social and cultural rights) enshrined in the Universal Declaration of Human Rights and other international human rights standards does not extend to the lawfulness of the use of force.’ Human Rights Watch takes a similar position, importing the jus in bello/jus ad bellum distinction from international humanitarian law.
I couldn’t disagree more. There are several references to peace in the preamble of the Universal Declaration. The preamble of the Declaration, as well as the preambles of the two Covenants, repeat the immortal four freedoms of Franklin Roosevelt, which include ‘freedom from fear’. And article 28 of the Universal Declaration of Human Rights states: ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’ If we have a right to live in peace, then those who deprive us of it are violating our human rights.
It is true, of course, that the right to peace is woefully underdeveloped in human rights law. That doesn't mean it isn't there, however. Hopefully, the Human Rights Council will keep the momentum going, and we will give the human rights to peace the place importance it deserves.

Genocide and Cambodia

For more than three decades, people have spoken of the ‘Cambodian genocide’, referring to the atrocities carried out by the Khmer rouge from 1975 to 1979. The term ‘auto-genocide’ has sometimes been used, because the primary victims of the mass killings by Khmers were Khmers themselves. The United States, and other countries, adopted legislation referring to the ‘Cambodian genocide’. Legally, this was never very convincing, because genocide is a crime motivated by hate for ethnic groups and it seems unlikely that the term would apply to killing within an ethnic group. It was better to use the legal qualification ‘crimes against humanity’. But at the time, there was considerable uncertainty as to whether crimes against humanity could be committed in peacetime, a result of the Nuremberg jurisprudence. Aware of the weakness of their position, some of those who insisted on using the label ‘genocide’ in Cambodia adopted a fall-back position, which was to point to some minority groups, notably the Muslim Cham, who were also victims of the Khmer Rouge.
Since the internationalized prosecutions began some years ago, observers have awaited the approach the prosecutors would take to legal qualification of the acts of the Khmer Rouge. The first indictments charged crimes against humanity, but not genocide. Yesterday, the Extraordinary Chambers of the Courts of Cambodia issued genocide charges against two Khmer Rouge leaders, Nuon Chea and Ieng Sary. The charges related to attacks on two minority groups, the Cham Muslims and the Vietnamese. According to Youk Change, who directs the Documentation Centre of Cambodia, estimates of the Cham who were killed range from 100,000 to 400,000, but it is not known how many Vietnamese were killed. However, the policy of the Extraordinary Chambers to charge the attacks on the majority Khmer population as crimes against humanity but not genocide remains intact. According to the spokesman for the court, Lars Olsen: ‘It is impossible to say it was an intent to destroy the Khmers. The perpetrators were of the same nationalities as the victims.’
Thanks to Kjell Anderson.

Avoid the 'Scaffolding' in Doctoral Theses

I rarely write about the practical aspects of writing a PhD thesis on this blog. Last weekend, I was one of the examiners on two different doctoral thesis juries at the Université de Paris X. The candidates - both were successful, by the way, and both received 'félicitations du jury', which is the best you can get - are students of Professor Alain Pellet.
During the defenses, which are public in France, Professor Pellet spoke about a feature of doctoral theses that contributes to a problem of excessive length. This is a more serious problem in France, where theses are often well over 500 pages, than it is in Ireland and the UK, where we have a rather strict rule that keeps them well under 300 pages. He said that students have a tendency to include too much 'scaffolding', meaning that they frame the thesis with lengthy developments about background issues that are not really necessary. Often this involves showing the examiners that they have learned their lessons well, and that they are comfortable with general concepts and ideas in the discipline. It is a way to cite the major writers in the field., including often those with a philosophical perspective.
He said - and we all agreed - that this is to be avoided. For example, in a thesis on some feature of the International Criminal Court, it is not necessary to provide the entire background of international justice, the rationale for prosecution, and so on. If you are writing about an aspect of international human rights law, there is no need to remind us of the details of the adoption of the Universal Declaration of Human Rights (unless, of course, this is really germane to the topic).
In other words, don't surround your thesis with too much 'scaffolding'. Get to the point quickly.

'Selective Mercy' at the United States Supreme Court

Linda Greenhouse of the New York Times has an interesting column on a very recent ruling by the United States Supreme Court: http://opinionator.blogs.nytimes.com/2009/12/03/selective-empathy/?emc=eta1. The judges quashed a death sentence of a war veteran on the grounds of ineffective representation. Welcoming the decision, Greenhouse says only that she is concerned that such mercy seems to be selective.
The eternal optimist, I'm always looking for signs that the commitment to capital punishment in the United States is fracturing. Maybe this is one of them.
Thanks to Bill Hartzog.

Amending the Rome Statute: Recent Developments

The recent session of the Assembly of States Parties of the International Criminal Court provided some clarity about the upcoming Review Conference, and the changes to the Rome Statute that will be proposed. This material is not yet available on the website of the Court, at least as far as I know. If a reader of the blog knows where it can be viewed, please let us know.
Here’s what I’ve managed to learn about this:
Aside from the issue of the crime of aggression, there have been several proposed amendments to the Statute (the draft amendments can be viewed here: http://www.icc-cpi.int/Menus/ASP/ASP+Events/ASP+Calendar+2010/Review+Conference.htm).
Netherlands: introduce the crime of ‘international terrorism’. The Netherlands’s proposed amendment looks exactly like article 5(2), except that it replaces ‘aggression’ with ‘international terrorism’. Thus, it postpones debate about the actual definition of the crime, but aims to place a marker in the Statute. I understand the Dutch will withdraw the proposal, which did not get much support during the recent meeting of the Assembly of States Parties.
Trinidad and Tobago and Belize: introduce the crime of drug trafficking. It probably did better than ‘international terrorism’, but there is hardly enough support for it to go forward to the Review Conference in Uganda next year.
Prohibited weapons: There were several proposals, from Belgium and Mexico. Mexico sought a prohibition of nuclear weapons. Its amendment was a political statement, and nobody expected it to have any chance of success. Belgium has a number of amendments. The first, and the only one that will go to Kampala, is to reconcile an anomaly in the Statute by which the three prohibited weapons paragraphs in article 8 (8(2)(b)(xvii), (xviii) and (xvix)) only apply to international armed conflict. There seems to be general agreement that this should be extended to non-international armed conflict. It is all quite symbolic, because these paragraphs mainly refer to archaic weapons. Concerns about their use, either in international or non-international armed conflict, belong in the 19th century, not the 21st. The other Belgian amendments attempt to introduce prohibitions of more modern weapons, including anti-personnel mines. There does not seem to be any traction for these amendments.
Here is a good topic for a law review article. We seem to be unable to apply international criminal justice to the issue of prohibited weapons. There are a few harmless provisions in the Rome Statute, but a yawning gap, in the form of article 8(2)(b)(xx). The Belgian attempt to fill the hole in that provision has failed. There will be no annex to the article, despite what the provision says. At the International Criminal Tribunal for the former Yugoslavia, there is a prohbited weapons provision in article 3 of the Statute, but it has never been applied. So what is it about prohibited weapons that makes this so difficult?
African Union: Amend article 16 to allow for deferral by the General Assembly if the Security Council fails to act. This is a codification of the ‘uniting for peace’ resolution that dates back to the Korean War. This amendment isn't on the ICC website. Attention should be paid to this amendment, although not because it is likely to be adopted. It crystallizes the frustrations of African States with the Court. Last year, when they looked for a way to forestall the prosecution of President Bashir, they were told this was a matter for the Security Council. But not only has the Council done nothing, African States realize that their voice is not very important in that forum. There are no permanent members from Africa. The Prosecutor echoes the same frustrating replies to African states when he says that the ‘interests of peace’ are dealt with elsewhere, in bodies like the Security Council. Article 16 is only in the Statute as a concession to the permanent 5 of the Security Council. I think the African Union proposal is a neat way of highlighting the political reality, by which the Court and its institutions seem to have delegated a very important part of its functioning to a body that everybody dislikes.
Norway has a rather technical resolution. There isn’t much desire to consider modifications to the procedure and the operations of the Court at the Kampala conference. The general feeling is that we need a few more years of activity before determinations should be made about ‘fixing’ issues within the Statute. I think lots could be done, like reduce or even eliminate the confirmation hearing, limit the scope of interlocutory appeals, provide for separate election of the Appeals Chamber, and so on. But it won't happen right now.
Crime of aggression: Really, there isn’t much new here. The reports of the Special Working Group and of the Princeton meeting have been on the Court’s website since earlier in the year: http://www.icc-cpi.int/Menus/ASP/Crime+of+Aggression/. The Special Working Group has found adequate solutions to virtually all of the problems associated with authorizing the Court to exercise jurisdiction over the crime of aggression, with one exception. Unfortunately, it is the decisive issue: the role of the Security Council. Although a number of options have been identified, the real obstacle is any willingness of permanent members of the Security Council to compromise. None of them has even blinked so far. The Review Conference could choose to defy the Security Council, and vote an amendment without its concurrence. I think this is unlikely, however. Unfortunately, given that the Review Conference will come down to this single issue, there isn’t much in the way of negotiating to be done. At Rome, delegations could compromise on one issue in return for concessions on another. But the Review Conference is too focused. The result is that there is little incentive for the permanent members of the Security Council to make compromises.

Interim Release at ICC Denied by Appeals Chamber

Earlier this year, in a rather bold ruling, a Single Judge of a Pre-Trial Chamber of the International Criminal Court, Ekaterina Trendafilova, decided to grant interim release to one of the accused, Jean-Pierre Bemba Gombo: http://www.icc-cpi.int/iccdocs/doc/doc727230.pdf. The unresolved problem was finding a country willing to take him. But in the meantime, the decision was appealed. Yesterday, the Appeals Chamber reversed the decision: http://www.icc-cpi.int/iccdocs/doc/doc787666.pdf.