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.

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.

Handbook on UN Human Rights Mechanisms

An extremely useful handbook on the United Nations human rights mechanisms has been published by the Civil Society unit of the Office of the High Commissioner for Human Rights: http://www.ohchr.org/EN/AboutUs/CivilSociety/Documents/Handbook_en.pdf

Blair for EU President?

Last week, I circulated a popular appeal to elect Mary Robinson as President of the European Union. She has since made it clear she is not interested. So we return to the favourite, Tony Blair. George Monbiot, in Monday's Guardian says we should back Blair: 'If the man who waged an unprovoked war in Iraq gets this job, it could be the chance to hold him to account for his crimes.' Read more: http://www.guardian.co.uk/commentisfree/2009/oct/26/making-blair-eu-president-crazy
Thanks to Nadia Bernaz.

RUF Judgment of Special Court for Sierra Leone

Yesterday, the Appeals Chamber of the Special Court for Sierra Leone issued its ruling in the so-called 'RUF case'. It is listed on the Court's website, but when one attempts to access the decision a judgment from 2008 appears. I've managed to get a copy:
http://www.filefactory.com/file/a07c20f/n/20091026_Sesay_et_al_Appeal_Judgment_FILED_doc.
I've no particular comment for the time being. It is nearly 500 pages long, with about 4,000 footnotes. There is a lot on the doctrine of 'joint criminal enterprise', which continues to fascinate, although it appears to be on its last legs. The International Criminal Court has dropped the joint criminal enterprise approach to liability.

Richard Goldstone Interview with Bill Moyers

As most readers of this blog know, Richard Goldstone chaired the fact finding commission that recently issued its report on war crimes committed in the Gaza conflict during December 2008 and January 2009. There is a very fine interview with Richard Goldstone by Bill Moyers on Public Broadcasting in the United States: http://video.iptv.org/video/1305873886/. Judge Goldstone cut his teeth as a white South African helping to bring down the apartheid regime. Now, as a Jew and a friend of Israel he has condemned war crimes for which Israeli troops were responsible. The world should be thankful that we have people like Richard Goldstone. He had better be on next year's Nobel short list.
Thanks to Brian Farrell.

Karadzic to Boycott Trial

Radovan Karadzic has announced that he intends to boycott his trial due to begin Monday at the International Criminal Tribunal for the former Yugoslavia (http://www.nytimes.com/2009/10/23/world/europe/23hague.html). It’s not the first time this has happened at the ad hoc tribunals. I wrote on this earlier in the year, in my article: ‘In Absentia Proceedings before International Criminal Courts’, in Göran Sluiter & Sergey Vasiliev, International Criminal Procedure: Towards a Coherent Body of Law, London: Cameron May, 2009, pp. 335-380. Here are the relevant excerpts:

‘When I came back to Dublin I was courtmartialed in my absence and sentenced to death in my absence, so I said they could shoot me in my absence.’ Brendan Behan

…

Some defendants have chosen to boycott proceedings, as a form of protest against rulings by the bench. In May 2003, a Rule was added to the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda to address this issue:

Rule 82 bis: Trial in the Absence of Accused

If an accused refuses
to appear before the Trial Chamber for trial, the Chamber may order that the
trial proceed in the absence of the accused for so long as his refusal persists,
provided that the Trial Chamber is satisfied that:
(i) the accused has made his initial appearance under Rule 62;
(ii) the Registrar has duly notified
the accused that he is required to be present for trial;
(iii) the interests of the accused are represented by counsel.

There is no similar provision in the Rules of the International Criminal Tribunal for the former Yugoslavia, although the principles set out in Rule 82 bis have been judged to apply to that institution.[1] There is an equivalent provision in the Rules of Procedure and Evidence of the Special Court for Sierra Leone:

Rule 60: Trial in the Absence of the Accused

(A) An accused may not be tried in his absence, unless:
(i) the accused has made his initial appearance, has been afforded the right to appear at his own trial, but refuses so to do; or
(ii) the accused, having made his initial appearance, is at large and refuses to appear in court.
(B) In either case the accused may be represented by counsel of his choice, or as directed by a Judge or Trial Chamber. The matter may be permitted to proceed if the judge or trial Chamber is satisfied that the accused has, expressly or impliedly, unequivocally waived his right to be present. [2]

Several accused at the Special Court for Sierra Leone have boycotted the proceedings. A Trial Chamber said that

though in essence trial in the absence of an accused person is an extraordinary
mode of trial, yet it is clearly permissible and lawful in very limited
circumstances. The Chamber opines that it is a clear indication that it is not
the policy of the criminal law to allow the absence of an accused person or his
disruptive conduct to impede the administration of justice or frustrate the ends
of justice. To allow such an eventuality to prevail is tantamount to judicial
abdication of the principle of legality and a capitulation to a frustration of
the ends of justice without justification.[3]

Rule 82 bis of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda was adopted in the context of the refusal of an accused, Jean-Bosco Barayagwiza, to attend his trial. At the beginning of the trial, in October 2000, his counsel told the Trial Chamber of the International Criminal Tribunal for Rwanda that their client would not be attending the trial, and that he had instructed them not to represent him, all of this ‘based on his inability to have a fair trial due to the previous decisions of the Tribunal in relation to his release’. Barayagwiza personally issued a statement ‘refusing to associate himself with a show trial’ and insisting that ‘the ICTR was manipulated by the current Rwandan government and the judges and the prosecutors were the hostage[s] of Kigali’.[4]

The Trial Chamber declared that ‘Barayagwiza was entitled to be present during his trial and had chosen not to do so, and the trial would proceed nonetheless. The Chamber also stated that he would be free to attend whenever he changed his mind.’ Counsel were ordered to continue representing Barayagwiza.[5] They attended at court until February 2001, and then informed the Trial Chamber that their mandate had been terminated. A new counsel, Giacomo Barletta-Calderera, was soon appointed for Barayagwiza, and he represented Barayagwiza for the duration of the trial, but Barayagwiza never attended personally.[6]
Barayagwiza unsuccessfully raised the matter on appeal, where he argued that nothing in the Statute or the Rules authorised proceedings in his absence. During the appeals hearing, his counsel suggested that the Tribunal might have brought him to court physically in order to ensure his presence at trial.[7] Barayagwiza noted that Rule 82 bis had been adopted well after his trial had begun, and could not therefore have a retroactive effect. The Appeals Chamber observed that the Secretary-General’s report of 3 May 1993 did not oppose the idea that a trial might proceed in the absence of a defendant who refused to appear. The famous reference in the report to in absentia trials was addressed to individuals who had not yet been apprehended by the Tribunal.[8] According to the Appeals Chamber, an accused person can renounce to presence at trial providing this is ‘libre, non équivoque (même si elle peut être expresse ou tacite) et faite en connaissance de cause’.[9] It noted that these were the same criteria applicable to renunciation by a suspect of the right to be assisted by counsel during questioning, pursuant to Rule 42 (B),[10] and to the validity of a renunciation by an accused person of the protection against self-incrimination.[11] The Appeals Chamber said an accused must have received notice of the date and place of the trial, and of the charges against him or her, and the right to be present at trial. Moreover, where an accused who is in custody refuses to attend, the interests of justice require that counsel be designated.[12] In the specific case of Barayagwiza, the Appeals Chamber concluded that

Barayagwiza a exprimé de manière libre, expresse et non équivoque sa
renonciation au droit d’être présent aux audiences de son procès, après avoir
été dûment informé par la Chambre de première instance tant du lieu, de la date
du procès et des charges retenues contre lui que de son droit d’assister à ces
audiences et de la nécessité de sa présence. À ce stade de l’analyse, la Chambre
d’appel ne peut discerner une quelconque erreur dans l’appréciation faite par la
Chambre de première instance du refus de l’Appelant de se présenter en
audience.[13]

Barayagwiza’s appeal on grounds that he had not been present at trial was therefore dismissed, given that he had voluntarily waived his right.

[1] Simić sentencing judgement , supra note 110, para. 8.
[2] The provision, adopted 1 August 2003, contains slight but insubstantial changes from the original version adopted on 7 March 2003.
[3] Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, Prosecutor v. Gbao, Case No. SCSL-2004-15-T, T. Ch., SCSL, 12 July 2004, para. 8. See also Ruling on the Issue of Non-Appearance of the First Accused Samuel Hinga Norman, the Second Accused Moinina Fofana, and the Third Accused, Allieu Kondewa at the Trial Proceedings, Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, T. Ch., SCSL, 1 October 2004; Ruling on the Issue of the Refusal of the Accused Sesay and Kallon to Appear for their Trial, Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, T. Ch., SCSL, 19 January 2005.
[4] M. Momeni, ‘Why Barayagwiza is Boycotting his Trial at the ICTR: Lessons in Balancing Due Process Rights and Politics’, (2001) 7 ILSA Journal of International and Comparative Law 315, at 315-316.
[5] Decision on Defence Counsel Motion to Withdraw, Prosecutor v. Barayagwiza, Case No. ICTR-97-15-T, T. Ch. I, ICTR, 2 November 2000. Similarly, Gbao – Decision on Application to Withdraw Counsel, Prosecutor v. Gbao, Case No. SCSL-04-15-T, T. Ch., SCSL, 6 July 2004.
[6] Judgment and Sentence, Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, T. Ch. I, ICTR, 3 December 2003, para. 83.
[7] Judgment, Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, A. Ch., ICTR, 28 November 2007 (‘Nahimana et al. appeal judgement’), para. 89, footnote 186. The option of forced appearance was briefly considered by another Trial Chamber but opposed by defence counsel: Transcript, Prosecutor v. Rwamakuba, Case No. ICTR-98-44-C-I, T. Ch. III, ICTR, 6 June 2005, at 3.
[8] Nahimana et al. appeal judgement, supra note 118, para. 98.
[9] Ibid., para. 110.
[10] Ibid., citing Decision on Prosecutor’s Motion for the Admission of Certain Materials under Rule 89(C) of the Rules of Procedure and Evidence, Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, T. Ch. I, ICTR, 14 October 2004, paras. 18 and 19.
[11] Ibid., citing Decision on Vidoje Blagojević’s Oral Request, Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, T. Ch. I (Section A), ICTY, 30 July 2004, at 8; Decision on Motion for Exclusion of Statement of Accused, Prosecutor v. Halilović, Case No. IT-01-48-T, T. Ch. I (Section A), ICTY, 8 July 2005, paras. 22 and 23.
[12] Ibid.
[13] Ibid., para. 116.

Goldstone Report

Read Michael Lerner in The Guardian on the Goldstone report: http://www.guardian.co.uk/commentisfree/2009/oct/21/war-crimes-white-wash.

Mary Robinson for EU President

A citizens campaign has been started to propose former President and UN High Commissioner for Human Rights, Mary Robinson, for the new post as President of the European Union. The choice will be made by the EU Council, i.e. the representatives of the member states. The selection of Mary Robinson would send a signal that the European Union is concerned about social exclusion, racism and the protection of human rights and the new President would hopefully be able to exert some influence on European Union policies both within Europe and in the wider world. The candidate most mentioned at the moment is Tony Blair, who would not send out those signals. The European Union leaders meet on 29 October and while the appointment will not be decided on then, the discussion abut the post will begin in earnest. If there was a strong grassroots groundswell in favour of Mary Robinson, it might influence them. There is a petition to sign at www.maryrobinson.eu/petition.html and the campaign has a website at http://www.maryrobinson.eu/ where you can also sign up and add to the list of supporters on Facebook.

Srebrenica Genocide Convention by Bosnian Courts

Last Friday, the War Crimes Chamber of Bosnia and Hezegovina issued convicted Milorad Trbić of genocide. Trbić was transferred to Bosnia from the International Criminal Tribunal for the former Yugoslavia in June 2007, pursuant to Rule 11 bis. The judgment will not be available for a few months. According to the press release:

On 16 October 2009, the War Crimes Chamber found Milorad Trbić guilty of
genocide, for his participation in a joint criminal enterprise, between 12 July
and 30 November 1995, together with Colonel Ljubiša Beara, Liutenant Colonel
Vujadin Popović, Lieutenant Drago Nikolić and others, which consisted of the
common purpose and plan to capture, detain, summarily execute and bury all able
bodied Bosniak (Muslim) males from Srebrenica enclave, who were brought into the
Zvornik Brigade zone of responsibility. The Court found that this common purpose
and plan amounted to the commission of the crime of genocide. The Court
sentenced Trbić for his participation in the joint criminal enterprise to
30 years imprisonment.

Popović has been tried by the International Criminal Tribunal for the former Yugoslavia, and a judgment of the Trial Chamber is expected later this year.
Thanks to Fidelma Donlon and Melissa Ruggiero.

Funded Doctoral Positions at Leiden

The Grotius Centre for International Legal Studies (Leiden Law School & Campus Den Haag) has two PhD vacancies for the project ‘Post-Conflict Justice and Local Ownership’ funded by the Netherlands Organisation for Scientific Research (NWO). The project will involve research and testing of the design and management of international criminal justice. It examines rationales and methodologies of external intervention in justice responses, the societal impact of international criminal proceedings, based on analysis of the first practice of the International Criminal Court (ICC), and the contribution of the ICC to capacity-building and legal harmonisation in conflict and post-conflict situations.
Fo more information: http://www.grotiuscentre.org/com/doc.asp?DocID=44 or write to Dr. Carsten Stahn (cstahn@campusdenhaag.nl) or Dr. Larissa van den Herik (L.van.den.Herik@LAW.leidenuniv.nl).

Can Palestine Join the International Criminal Court?

There is a report that Palestine is preparing to become a ‘member’ of the International Criminal Court: http://www.maannews.net/eng/ViewDetails.aspx?ID=232793. The report says that information has been requested from the Court with a view to carrying this out. According to article 125 of the Rome Statute, ‘This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.’ Thus, Palestine can join to the extent that it is a ‘State’. Indeed, an attempt to accede to the Rome Statute could be interpreted as a manifestation of statehood. But the Palestinian Authority is knocking on the wrong door. It is not the Court that decides who may join; this is the job of the depository, which is the Secretary-General of the United Nations. I would be very surprised if the depository were to accept an instrument of accession from Palestine. Of course, Palestine might then apply to the Assembly of States Parties which, I think, could probably override a decision by the depository.
But isn’t the real problem that Palestine has not yet manifested its desire to be considered a State, or at least not recently? I am sure that if Palestine were to declare itself a State, it would be recognised by many other States very quickly. But it has to take this step first.
Thanks to Michael Kearney.

Death Penalty Research Centre Established in China

I was in China on the weekend, attending the final seminar of the EU-China Project on capital punishment, and attending the launch of the International Research Centre on Death Penalty Reform, which will be hosted by the law school of the Beijing Normal University. The meeting was attended by many senior judges, government officials and academics.

The photo shows my colleague Huang Fang, who is a professor at the Law Institute of the Chinese Academy of Social Sciences. She recently received a prestigious award for the publication of a translation of my book Introduction to the International Criminal Court.

The seminar brought out all of the contradictions in the ongoing debate about the death penalty in China. On the one hand, there is more writing, publishing and research activity on the subject than ever before. Moreover, it is obvious that views continue to evolve, and that there has also been a substantial drop in the use of capital punishment in the last few years. At the same time, many Chinese experts cling stubbornly to the idea that there is great support among the people, and that the government cannot go ahead with reform until this changes.

Our colleagues at Wuhan University, together with the Max Planck Institute in Fribourg, produced a detailed public opinion survey whose results were presented during the weekend meeting. These results were analysed by Professor Roger Hood, professor emeritus of criminology at Oxford, who explained that they should encourage moves towards abolition. According to Professor Hood, the results demonstrate that there is a majority in support of capital punishment only for the crime of murder, and that there are many other indications in the survey showing that the people of China are far less enthusiastic about capital punishment than their leaders claim. In fact, the survey shows that there is much greater support for the death penalty among the professionals in the system than among the ordinary population. Professor Hood says this is a case of those engaged in the system trying to justify what they do.

The new International Research Centre in Beijing is headed by a dynamic senior scholar, Professor Zhang Bingzhi, and we hope it will continue to lead the debate within China. Professor Hood, Professor Hans-Jörg Albrecht of Max Planck, myself and others will be involved with the Centre in an advisory capacity.

Iran Violates Prohibition on Juvenile Executions

Iran has hanged a man for a crime committed when he was seventeen years of age: http://www.upi.com/Top_News/International/2009/10/13/Iran-hangs-man-sentenced-when-17/UPI-23491255453386/. This violates Iran's obligations under article 6(5) of the International Covenant on Civil and Political Rights, article 37(a) of the Convention on the Rights of the Child and under customary international law as codified in the Safeguards adopted by the Economic and Social Council in the early 1980s.
Iran is probably the only country in the world to persist in such violations. The United States of America ceased executions for juvenile offences in 2005, following a ruling of the Supreme Court.
The prohibition on executions for juvenile crimes has become a universal norm since it was first set out in the fourth Geneva Convention in 1949. It isn't the only problem Iran has with modern human rights standards, but it is certainly a flagrant one.

Richard W. Sonnenfeldt RIP

Richard Sonnenfeldt, who played an important role in the Nuremberg trial, has passed away. Students of mine hwo have seen the film Nuremberg: The Nazis Faced with their Crimes, may remember the interview with him.
Richard Sonnenfeldt was born in Germany in 1923, a Jew and, at various points, a refugee from Nazism, a young student in England, an 'enemy alien' interned in the United Kingdom, a refugee in Australia and India, an immigrant to the United States, an engineering student, a U.S. citizen, an American soldier fighting in Italy and Germany, an Office of Strategic Services interpreter, the chief interpreter, a key interrogator and a very central player on the U.S. prosecution staff at Nuremberg. For his obituary in the New York Times: http://www.nytimes.com/2009/10/13/nyregion/13sonnenfeldt.html?scp=1&sq=richard%20sonnenfeldt&st=cse. His 2007 interview with Charlie Rose: http://www.charlierose.com/view/interview/8475. The 'Jackson List' post by John Q. Barrett: http://www.stjohns.edu/media/3/cf01f851490643c6b0e6e331a781462e.pdf.
Also, 2003 and 2004 Jackson Center interviews with Richard (near bottom, under “Other Nuremberg Trial Participants”): http://www.roberthjackson.org/Center/videolist/.
Thanks to John Q. Barrett.

Irish-American Exchange on Human Rights

This past weekend, a group of lecturers and doctoral students from the Irish Centre for Human Rights met with our colleagues at the Centre for Civil and Human Rights of the University of Notre Dame, in South Bend, Indiana. It was the first of what we plan as an annual meeting of the two Centres. The purpose is to discuss and debate emerging issues and developments in human rights in a relatively unstructured and collegial manner. We are already planning next year's event, to take place in Galway on 16-18 October. Our hope is to enlarge the circle beyond our two institutions, and that academics, officials, journalists and activists who are interested in human rights will join us for these meetings.

This year's exchange heard presentations on post-conflict justice in Rwanda, the Obama administration's record on counter-terrorism measures, the influence of the Universal Declaration of Human Rights, legal issues concerning the use of combat drones, the abolition of the death penalty and the record of the ad hoc international criminal tribunals. A bit eclectic, but that was always the general idea. Presenters include Doug Cassel, Mary-Ellen O'Connell, Steven Smith, Shane Darcy, Ximena Medellín, Meg de Guzman, Jimmy Gurule, Gerald Gahima, Brian Farrell, Sean O’Brien and myself.

We were honoured by the attendance of Father Ted Hesburgh, founder of the Notre Dame Centre and former President of the University. The photo shows Father Hesburgh with Dr Vinodh Jaichand, deputy director of the Irish Centre (middle) and myself.

We're grateful to our hosts at Notre Dame for a fabulous weekend, and hope we can be as courteous when they visit us next year.

Lemkin Papers and Upcoming Conference

Raphael Lemkin was the Polish-Jewish scholar who invented the term ‘genocide’. He devoted much of his life to campaigning for the adoption and the widespread ratification of the Genocide Convention. A collection of his papers has been digitized and is available on line: http://digital.cjh.org/R/?func=collections-result&collection_id=1634.
A conference on Lemkin is being held in New York City on 15 November 2009: http://www.cjh.org/lemkin/.

NUI Galway Makes Big Jump in University Ratings

The National University of Ireland, Galway has jumped to 243rd position in the World University Rankings, which are issued annually by the Times Higher Education Supplement. According to last year’s ratings, Galway went from 484th place in 2007 to 358th place. So this year we leapt another 125 places. It places NUI Galway in the top 95th percentile of universities in the world. NUI Galway scored the biggest gain of all of the Irish Universities. We were also ranked 272nd in the top 300 in the Arts and Humanities Area.
We’re not (yet) in the same league as Harvard and Oxford, but we’re an energetic and dynamic institution that prides itself on its centres of excellence, one of which is the Irish Centre for Human Rights.

Human Rights Executive Position with Law Society

The Law Society is looking for a 'human rights executive' to work three days per week. The job is described as: 'C0ompleted or be undertaking a PhD in a field relevant to access to justice aqnd human rights...' See: http://www.mediafire.com/?dcy55bmm1u2.

Lisbon Treaty Will be Good for Human Rights

The Lisbon Treaty strengthens and enhances the protection of the human rights of the people of Ireland. One of the central functions of the Lisbon Treaty is to make the European Union Charter of Fundamental Rights legally binding. The European Charter brings political, civil, economic, social and cultural rights together into a single and concise document. It may be the most advanced human rights declaration ever drafted.
Far from threatening our fundamental rights, as critics of the Lisbon Treaty have suggested, the Charter builds upon the European Convention on Human Rights, which dates back to 1950. Whereas the European Convention is mainly limited to the more classic civil and political rights, like freedom of expression and the prohibition of slavery and torture, the Charter covers other areas, such as the right to good administration, the rights of the disabled, the social rights of workers, the right to a clean environment, the protection of personal data and bioethical rights.
But even in the area of civil and political rights, it is a very progressive document. Compare the European Convention on Human Rights, which actually authorises the use of capital punishment (remember, it was drafted 60 years ago), with the new EU Charter, which not only prohibits capital punishment but even forbids the extradition or transfer of persons to other countries where this might take place.
All Bills of Rights use broad language, and the EU Charter of Fundamental Rights is no exception. It is in their nature. This is a valuable feature, because it enables them to be interpreted in an increasingly expansive manner over time, as attitudes and values evolve. Strangely, the broad language has been used by critics of the Lisbon treaty to concoct scenarios and interpretations that have more to do with fantasy than reality.
The Lisbon Treaty makes clear that the provisions of the Charter shall not extend in any way the powers of the EU as defined in the relevant treaties. The fact that certain Charter rights concern areas in which the EU has little or no competence (for example, the death penalty or the right to strike) to act is no contradiction. Although the powers of the EU are limited, it must avoid even indirect interference with all fundamental rights.
Fundamental rights guaranteed by national constitutions are merely complemented, not superseded by the Charter. The Charter will certainly apply to EU institutions. But it only applies to the Member States when they implement EU law. This is not reflective of some sinister centralist agenda but rather a salutary commitment from Brussels to respect fundamental rights in all aspects of its activities. How can this possibly be harmful? It strengthens our protections and fundamental guarantees.
It is also seriously misguided to argue that the EU Charter might weaken fundamental rights because its protections are allegedly inferior to those of the European Convention on Human Rights or our own national constitution. As amended by the Lisbon Treaty, the new Article 6 specifically provides that fundamental rights, as guaranteed by the European Convention and as they result from the constitutional traditions common to the Member States, will continue to constitute general principles of EU law.
The ‘Solidarity Section’ of the EU Charter contains articles relating to workers’ rights to information and consultation, health care or access to services of general economic interest. There is nothing really new here; such rights are already guaranteed by EU law. However, the fact that such economic and social rights are now described as ‘fundamental rights’ ought to be welcome. EU courts will have to take them into account when interpreting EU legislation, and they will undoubtedly percolate down to the Irish courts too, if history is any guide.
The preposterous view that the EU Charter could be used to challenge Ireland’s anti-abortion legislation has circulated in the debate. Yet in countries such as France, the same argument has been put, but in reverse. It is contended that by proclaiming that ‘everyone has the right to life’ the EU Charter will prohibit abortion. Neither view deserves to be taken seriously. The text in the Charter merely reflects similar words in the European Convention on Human Rights, which has been applied in Ireland for the past sixty years. The EU Charter will change nothing with respect to Ireland’s abortion laws.
The EU Charter of Fundamental Rights, which is part of the Lisbon Treaty package, is a progressive addition to existing legal protections. We may not all feel confident that we understand many of the complex legal provisions that appear in the Lisbon Treaty. But every citizen can grasp the meaning and scope of the EU Charter. The language is straightforward, innovative, and even poetic at times. Any plain reading makes clear how desirable it is that the text be adopted. No hidden agenda, ambiguity or subterfuge lurks behind the words. It is a good reason to vote yes in the referendum.

Laurent Pech, Jean Monnet Lecturer in EU Public Law
William Schabas OC MRIA, Professor of Human Rights Law
National University of Ireland, Galway

A Major Complementarity Ruling by the Appeals Chamber of the International Criminal Court

The Appeals Chamber of the International Criminal Court has issued an important ruling on admissibility that interprets the scope of article 17 of the Rome Statute: http://www.icc-cpi.int/iccdocs/doc/doc746819.pdf. The accused, Germain Katanga, had argued that the case was inadmissible because the Democratic Republic of the Congo was merely inactive, and not unable or unwilling. The Appeals Chamber said:

Such an interpretation is not only irreconcilable with the wording of the provision, but is also in conflict with a purposive interpretation of the Statute. The aim of the Rome Statute is ‘to put an end to impunity’ and to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’. This object and purpose of the Statute would come to naught were the said interpretation of article 17 (1) of the Statute as proposed by the Appellant to prevail. It would result in a situation where, despite the inaction of a State, a case would be inadmissible before the Court, unless that State is unwilling or unable to open investigations. The Court would be unable to exercise its jurisdiction over a case as long as the State is theoretically willing and able to investigate and to prosecute the case, even though that State has no intention of doing so. Thus, a potentially large number of cases would not be prosecuted by domestic jurisdictions or by the Intemational Criminal Court. (para. 79)

I am puzzled by the penultimate sentence of this paragraph, which speaks of a state being ‘theoretically willing … even though that State has no intention’. But if a State has no intention of prosecuting, surely it is unwilling.
The issue seems to be a direct result of the so-called self-referrals before the Court. When Congo refers a situation to the Court and cooperates in prosecutions, it is in a sense ‘willing’, and therefore under article 17 the case might be deemed inadmissible. In effect, what it is doing is consenting to the jurisdiction of the Court. It is ‘willing’ for the accused to be prosecuted, but ‘unwilling’ to do this before its own courts. However, rather than describe this as a sign of ‘unwillingness’, the judges have preferred to call it ‘inactivity’. Possibly this is considered to be less pejorative.
But going back to self-referral (under article 14), the whole point of requiring referral of a situation rather than a case was to prevent a State party from targeting an individual for prosecution. This was considered to be incompatible with fair justice. But by allowing a State to make a case admissible merely because it is ‘inactive’, the Court effectively allows this result. The State can target an individual for prosecution by its inactivity. It can do indirectly what it is not supposed to do directly.
The real problem here is that we are trying to sort out an interpretation of article 17 that is a consequence of a distorted application and interpretation of article 14. If self-referral had not been allowed at the outset, probably these difficulties in applying article 17 would not have arisen. When article 17 was drafted, the idea of 'self-referral' was not seriously entertained. It is meant to apply to genuine referral, by one State against another, rather than the consensual relinquishment of jurisdiction by a State in favour of the International Criminal Court.
It is quite gratifying to see the importance that the Appeals Chamber attaches to a recent monograph on the question of complementarity: Mohamed El Zeidy, The Principle of Complementarity in International Law (http://www.nijhoffonline.nl/book?id=nij9789004166936_nij9789004166936_i-368) which appeared last year. El Zeidy’s book is largely based on the PhD thesis that he defended at the Irish Centre for Human Rights two years ago. He is now working as a legal officer in Chambers at the International Criminal Court.
Thanks to Joe Powderly.

More Genocide Hyperbole: This Time, Charges of Soviet Genocide in Poland During the Second World War

This is the latest example of exaggerated and inappropriate use of the term 'genocide'. The Polish parliament has adopted a resolution condemning the Soviet Union’s invasion of Poland in 1939 and the Katyn massacre of approximately 20,000 Polish military leaders in 1940: http://www.irishtimes.com/newspaper/world/2009/0925/1224255209326.html. According to the resolution: ‘The Gulag archipelago took millions of human lives, including those of many Soviet citizens . . . the organisation of the system, its duration and degree mean that these crimes, including the Katyn crime, carry the traits and characteristics of genocide.’
Charges of genocide leveled against the Soviet Union have been made for many years with respect to famine-related deaths in Ukraine associated with collectivization. But this is the first time I’ve seen the accusation made with respect to Poland. I suspect that Raphael Lemkin, the Polish-Jewish jurist who invented the word genocide in 1944, is turning in his grave at this extravagant use of the term.
The resolution is part of a more general phenomenon of historical revisionism being promoted in several countries in eastern Europe. I have already written on more than one occasion on this blog about the prosecutions of so-called 'flip-side' crimes committed by anti-Nazi partisans during the war.
I was impressed by a recent column in The Guardian by Seumas Milne: http://www.guardian.co.uk/commentisfree/2009/sep/09/second-world-war-soviet-pact. Milne describes the Soviet seizure of half of Poland as an act of realpolitik that was provoked by British appeasement of Hitler. He associates recent attempts to equate the Nazis and the Soviets with the rise of right wing movements in Eastern Europe and the spread of racism: ‘As the political heirs of the Nazis' collaborators in eastern Europe gain strength on the back of growing unemployment and poverty, and antisemitism and racist violence against Roma grow across the region, the current indulgence of historical falsehoods about the second world war can only spread this poison.’

Bosnia and Herzegovina: Dealing with the Backlog of Cases

The Forum for International Criminal and Humanitarian Law of the Oslo-based International Peace Research Institute has just published a booklet available in pdf on the internet, on dealing with the backlog of international crimes in Bosnia and Herzegovina: http://www.prio.no/upload/FICHL/FICHL(3)_Backlog%20in%20BiH.pdf

Political Changes in Japan may be Death Knell for Capital Punishment

The appointment of Keiko Chiba as Japan's new justice minister has the effect of imposing a moratorium on the death penalty. She has been an active opponent of capital punishment for many years. See: http://www.timesonline.co.uk/tol/news/world/asia/article6840248.ece. Under Japan's system of secret executions, prisoners wait on death row, usually for many years, and are only told that they are to be executed on the day of the hanging. Families are informed after the execution. See the Amnesty International report on the subject issued last week: http://www.amnesty.org.uk/uploads/documents/doc_19662.pdf. Aside from the United States, Japan is the only developed country to retain the death penalty. For many years it has only been rarely imposed, but in the last few years there has been a real spike in executions. The recent political developments in Japan change all that.
Thanks to Eadaoin O'Brien.

Naomi Klein on the Durban II Conference

The ‘Durban II’ Conference, held in Geneva last April, seems so long ago now. I attended the opening session, and then spent the week in Geneva picking up news and gossip about what was going on. The best account I’ve read about Durban II (known as the ‘Durban Review Conference), and about Durban I (known as the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance), and the background for the debate, is by Naomi Klein in the September 2009 issue of Harper’s. Unfortunately, you have to subscribe to get the article, or find it on a newsstand, and I cannot give you the text here (see http://www.harpers.org/archive/2009/09/0082642). You can get a idea of the content on Klein’s blog (http://www.naomiklein.org/articles), which reproduces the announcement from the Harper’s press office:

Reporting from Geneva, Naomi Klein, a contributing editor to Harper’s Magazine, reveals the grudges and absurdities of Durban II, the follow-up convention to the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, which took place in Durban, South Africa, in 2001. Such issues as reparations for slavery—and the correction of other immense historical imbalances resulting from colonialism and racism—are overshadowed, in the months leading up to the conference, by supporters of Israel, who seize on fears that the conference will promote an anti-Israel and anti-Semitic agenda. In reality, the U.N. goes to great lengths to ensure the neutrality of the proceedings, but the objections reduce Durban II to an event that nobody (except anti-Israel crusader Mahmoud Ahmadinejad) wants to touch, and the bare-knuckles fight seems convincingly won. Meanwhile, U.S. public-policy activists report the word that the White House is interested only in hearing about projects that are “race neutral”—and not in anything that targets disadvantaged constituencies. Which all leads to the question of whether the relatively thin charge of anti-Semitism was, for many developed nations, an excuse to avoid Durban II’s questions about what the rich countries of the world might reasonably owe on their debts to the peoples they once exploited. Klein pays particular attention to the Obama Administration’s legislative inaction on racial issues—and what it means for all of us.

The article very clearly points to the enormous distortion promoted by some pro-Israel NGO activists, politicians and journalists. These were in turned exploited by governments that wanted to avoid the profoundly important consequences of putting racial discrimination at the centre of the agenda of the United Nations. In effect, one of the great racist atrocities of all time – the Holocaust – was invoked to sabotage efforts to address the consequences and the aftermath of one of the other great racist atrocities of all time – the African slave trade.
All of this sits within the debate provoked by former President Jimmy Carter’s statement earlier this week that the venom in the recent attacks on Obama are driven by racism (http://thecaucus.blogs.nytimes.com/2009/09/16/carters-racism-charge-sparks-war-of-words/?hp). Carter is a wise old man, and his observations on politics in the United States are usually right on the mark, as they are in this case. Of course, Obama himself can’t say such things, and the White House has issued some predictable statements that disagree with Carter. But what Carter said needed to be said.
A few days later, we had more insanity from Iran’s President Ahmadinejad, who apparently said in a speech at Tehran University that ‘The pretext [the Holocaust] for the creation of the Zionist regime [Israel] is false. It is a lie based on an unprovable and mythical claim.’ (http://news.bbc.co.uk/2/hi/middle_east/8264111.stm) I don’t see any need to discuss the absurdity of such statements here, and I hope that nobody will accuse me of promoting Holocaust denial by reproducing his words for the purposes of illustration. Ahmadinejad’s own government agreed, at Durban, to a consensus document that included the following: ‘Recalls that the Holocaust must never be forgotten, and in this context urges all Member States to implement General Assembly resolutions 60/7 and 61/255…’ (para. 66; see http://www.un.org/durbanreview2009/pdf/Durban_Review_outcome_document_En.pdf).
In my view, racial discrimination has always been and remains the human rights issue, par excellence. The very first human rights convention adopted by the United Nations, on 9 December 1948, only a few hours before the adoption of the Universal Declaration of Human Rights, dealt with the supreme racist crime of genocide. Over the years, critics of the alleged shortcomings of the Convention for the Prevention and Punishment of the Crime of Genocide have faulted its limited scope, but I don’t agree. It is true that the Convention only applies to ‘national, ethnical, racial and religious groups’. Some say it should also cover political groups, or economic and social groups, or gender groups, and so on. However, the debate is not that victimization of such groups should not be addressed by human rights law, or by international criminal law. All of these other groups are now adequately protected by the prohibition of crimes against humanity, and by various other human rights treaties. But that the first human rights treaty dealt with the intentional physical destruction of national, ethnical, racial and religious groups underscores the centrality of the issue of racial discrimination at a seminal phase in the development of human rights law, in the late 1940s.
This is easily explained and understood by the immediate political context: the revelations of the scope of the intended destruction of the Jews of Europe by the Nazis. But there were other important factors that contributed to the context of the adoption of the Genocide Convention and the Universal Declaration of Human Rights, such as the ongoing apartheid and apartheid-like regimes in southern Africa and in the United States. The period also marked the beginnings of decolonization, and this merely heightened the perception that the perverse origins of the Nazi Holocaust lay in the falsehood that one racial or ethnic group was superior to another.
How troubling, then, that sixty years later has become so difficult for the United Nations to hold a mature, thoughtful and productive conference on the subject of racial discrimination. To return to Naomi Klein’s article in Harper’s, several actors deserve the blame for the problems: Israel and its friends, who have manipulated the truth about the nature of the work of the United Nations by gross exaggeration of the role and intervention of certain fanatics; western States, like Canada and the United States and those of Western Europe, that love to talk about ‘accountability’ for atrocities when they take place in Cambodia or Bosnia or Sierra Leone but that loath the idea that we continue to address the impact of slavery, the slave trade, colonialism and the destruction of aboriginal peoples; and provocative politicians like Mohamed Ahmadinejad, who in desperation make absurd statements that probably deserve to be ignored rather than exaggerated.
Thanks to Ezra Schabas and Tara Smith.