Canadian Officials Breach Canadian Constitution in Guantanamo

The Supreme Court of Canada has held that officials from the Canadian department of foreign affairs participated in breaches of fundamental rights of an adolescent detained by the American at Guantanamo. Omar Khadr, a Canadian citizen, was interrogated by Canadian officials in 2003 and 2004 while at the American detention centre. According to yesterday’s ruling: ‘This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada's international human rights obligations and contributed to Mr. Khadr's ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.’ The Court said: ‘Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations… Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.’ Here is the judgment.
Khadr has the distinction of being the only citizen of a western democracy whose own government has not intervened on his behalf in order to organise repatriation. Although now in his early 20s, he was captured by United States forces in 2001 at the age of 15 and has been detained ever since. Omar Khadr was born in Toronto.
Thanks to Bill Hartzog.

Abortion in Ireland

Human Rights Watch has issued its report on abortion in Ireland: A State of Isolation: Access to Abortion for Women in Ireland.
According to Human Rights Watch, the report shows how women struggle to overcome the financial, logistical, physical, and emotional burdens imposed by restrictive laws and policies that force them to seek care abroad, without support from the state. Every year thousands of women and girls travel from Ireland to other European countries for abortions.
'Women in need of abortion services should, as a matter of international law and – frankly –human decency, be able to count on support from their government as they face a difficult situation', said Marianne Mollmann, women’s rights advocacy director at Human Rights Watch. But in Ireland they are actively stonewalled, stigmatized, and written out.'
In December, three cases directed against Ireland raising abortion-related issues were argued before the European Court of Human Rights.

Diamonds, Charles Taylor and Movie Stars

Earlier this month, during his trial at the Special Court for Sierra Leone Charles Taylor was cross-examined about a dinner party he attended with supermodel Naomi Campbell and actress Mia Farrow, in 1997, in South Africa. Here's the transcript. The interesting part starts at page 33336. The prosecutor claimed that he had given a rough diamond to Naomi Campbell, a charge that Taylor denies. the prosecutor claims that Campbell told Mia Farrow about this the following morning, and that Mia Farrow has provided the Special Court with an affidavit confirming that Campbell told her this.

Rules of evidence are a bit relaxed at international criminal tribunals, but there must be limits. Farrow's affidavit is a great example of double hearsay, of course. Not only is it a statement rather than personal testimony (single hearsay), but all it does it report what someone else said. Couldn't the prosecutor at least get an affidavit from Campbell?

But in a common law court, I don't think we'd allow such evidence anyway. The prosecutor concedes that the evidence is only being led to challenge Taylor's credibility, because he had earlier said in his testimony that he never did have any diamonds in his possession. I think this is what we call a collateral attack, and it would not be allowed. Still, a guest appearance at the Court from a model and a movie star would sure liven things up.

Thanks to Yvonne McDermott.

Crime of Aggression, International Law and the Chilcott Inquiry

Yesterday, two international lawyers who had held senior positions in the British government at the time of the Iraq invasion testified before an official inquiry that they considered the acts of the British government to be illegal. See the account in today's Guardian. Elizabeth Wilmshurst, who had been deeply involved in negotation of the Rome Statute of the International Criminal Court, courageously resigned when the advice was dismissed and the British government decided to proceed with its American partners. In addition to testimony by Elizabeth Wilmshurst and Sir Michael Wood, who had been the chief legal advisor, memos written at the time were revealed to the public for the first time during yesterday's hearing.
On 24 January 2003, Michael Wood wrote a memo because Jack Straw had told US vice-president Cheney that Britain would 'prefer' that the invasion be authorized by a Security Council resolution, but that it would be 'OK' if they tried and failed to get one 'à la Kosovo'. I note in passing that in 1999 no resolution on Kosovo ever was put to a vote in the United Nations Security Council.
In his memo to Straw, Michael Wood wrote: 'To use force without security council authority would amount to a crime of aggression.' Straw apparaently replied: 'I note your advice but I do not accept it.'
If Wood is correct, and I think that he is, then Straw (and Blair) committed the crime of aggression. But can they be prosecuted for this?
Although the International Criminal Court continues to wrestle with defining the crime of aggression, for the purposes of an amendment to the Rome Statute that will enable it to actually prosecute the crime, there can be no doubt that the crime of aggression exists under customary international law. This has been held by the British courts. It seems preposterous to claim that the crime of aggression existed at Nuremberg and Tokyo (it was then called crimes against peace) , but that it does not exist today because there is no definition in the Rome Statute.
The difficult issue is not defining the crime but finding a court with jurisdiction over it. The House of Lords has already taken the view that British courts do not have jurisdiction to prosecute the crime of aggression. George Monbiot, the Guardian columnist, has been raising funds for a prosecution of Blair. I hope he refunds their money back when he realises that this is a dead end.
The fact that the International Criminal Court cannot actually prosecute the crime of aggression, however, does not mean that this is irrelevant to its work. It arises indirectly, and provides a route to litigate these issues and, I think, hold Blair and Straw accountable.
The Court's Statute adopts a concept of criminal enterprise (art. 25(3)(d)) by which an individual is punishable by the Court who 'contributes to the commission or attempted commission' of war crimes, crimes agianst humanity and genocide 'by a group of persons acting with a common purpose. Such contribution shall be intentional'' and shall be 'made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court' (my italics). This is the entry point for the crime of aggression in the work of the International Criminal Court.
There is a good case to be made that Blair and Straw were part of 'a group of persons acting with a common purpose' whose activity involved 'the commission of a crime within the jurisdiction of the Court', namely, the crime of aggression. Article 5(1) of the Statute states that 'the crime of aggression' is a crime within the jurisdiction of the Court. Although article 5(2) says that temporarily the Court cannot exercise jurisdiction over the crime of aggression, this is not what it would be doing if it proceeded against Blair and Straw for war crimes committed pursuant to a common purpose to commit aggression. All this does is make effective the words of article 5(1), which describe the crime of aggression as a crime within the jurisdiction of the Court. These same words are used in article 25(3)(d).
The Court can exercise jurisdiction over war crimes committed in 2003. It has jurisdiction over Blair and Straw because they are nationals of a State party. And it can punish those who were part of the 'common purpose' or criminal enterprise to commit aggression even for war crimes committed by individuals who escape its jurisdiction, such as American nationals.
The Prosecutor of the International Criminal Court has already been dismissive of appeals that he investigate British war crimes in Iraq, although he has acknowledged that there is good evidence some took place He has also suggested that Britain is dealing with them before its own courts.
But Britain isn't dealing with the masterminds of the joint criminal enterprise to commit aggression. They are liable under the Rome Statute to the extent that war crimes were committed pursuant to this joint criminal enterprise. In other words, if either British or American troops committed war crimes, then Blair and Straw should be liable for prosecution by the Court under article 25(3)(d).
In his 2006 statement, the Prosecutor said he would not proceed against the British troops for what he suggested were isolated war crimes, because they were not serious enough. Perhaps he has a point here. But he might reconsider this with respect to Blair and Straw, especially given the fact that according to yesterday's testimony they defied advice from their own experts who told them that they would be committing the crime of aggression by invading another country without Security Council authorization. That strikes me as 'serious enough'.

Republican Bigotry

'By bluntly insisting that France’s republican values are under threat from a thousand or so women who wear full-face veils, a parliamentary commission that submitted a report opposing the practice on Tuesday merely succeeded in cheapening those values.' See the rest of this fine editorial in today's Financial Times.

Two New Books by Our Graduates

Dr. Noelle Higgins, who completed her PhD at the Irish Centre for Human Rights last year, has published a book that is based upon her doctoral thesis: Regulating the Use of Force in Wars of National Liberation: The Need for a New Regime – A Study of the South Moluccas and Aceh, Martinus Nijhoff, 2010. Noelle is a Lecturer in Law at Dublin City University. She is also a graduate of our LLM programme. Her thesis was supervised by Dr Ray Murphy.
Margaret Cordial (with Knut Rosandhaug) has published Post-Conflict Property Restitution – The Approach in Kosovo and Lessons Learned for Future International Practice (Volumes 1 and 2), Martinus Nijhoff, 2009. Margaret is a graduate of the LLM in human rights programme at the Irish Centre for Human Rights. She is currently working with the UN in Afghanistan.
Warm congratulations to you both.

Anastasia Crickely Elected to Committee for the Elimination of Racial Discrimination

Anastasia Crickley, of Ireland, has been elected to a four-year term as a member of the Committee for the Elimination of Racial Discrimination. She was one of nine people who were elected or re-elected to the Committee. Among them was another good friend of the Irish Centre for Human Rights, Patrick Thornberry. Anastasia, who is an academic at the NUI Maynooth, where she is head of the department of Applied Social Studies, has served in a number of important positions related to anti-racism, including chair of the National Consultative Committee on Racism and Interculturalism and, most recently, aas inaugural chair of the management board of the European Fundamental Rights Agency.
She is the second Irish person to be elected to a United Nations treaty body, joining Michael O'Flaherty, who is serving his second term as a member of the Human Rights Committee.
It is often said that in the field of human rights Ireland, with a population of less than 6 million, punches above its weight.
Congratulations, Anastasia. Congratulations, Patrick.

Paris Conference on 10 February

The Irish Centre for Human Rights and the Centre de Recherche en Droits de l'homme et droit humanitaire, which is based at the University of Paris II, are co-sponsoring a series of lectures that are being held at the Irish Cultural Centre, in Paris: http://www.crdh.fr/cycle_2009_20102.php?lien=ok.
The next lecture is on 10 February at 18h00, and I will be speaking on international developments concerning capital punishment.
The lectures are open to the public, and there is no charge. English and French are the working languages, and there is no interpretation.

Spreading the jam

The paper on whether the Palestinian Authority can accept the jurisdiction of the International Criminal Court has stimulated a thoughtful and interesting reply from Dov Jacobs: http://dovjacobs.blogspot.com/2010/01/case-study-in-legal-reasoning-icc-and.html.

The Shrinking Costs of War

I’ve written before on the work of the Human Security Report team, who study the statistical aspect of modern conflict. In a general sense, previous reports have shown that estimates of loss of life during armed conflict are generally much exaggerated, and that mortality related to armed conflict continues to decline. More robust international peacekeeping and the enhanced role of the United Nations and factors that the Human Security Report team say help to explain the phenomenon. One might add such elements as the growing deterrent effect of international justice, and the beneficial consequences of the expansion of human rights monitoring mechanisms, the special procedures of the Human Rights Council, the activities of NGOs, and so on.
This flies in the face of the claims of various advocacy organizations. Understandably, I suppose, they dramatize the number of deaths because this helps to draw attention (and resources) to the conflicts on which they focus.
The latest report from the Human Rights Security Project was issued yesterday. Here is one of the observations:

Today, wars generate far fewer deaths on average than they did in the past. The deadliest year for war deaths since World War II was 1950, mostly because of the huge death toll in the Korean War. The average conflict that year killed some 33,000 people; in 2007, the average toll was less than 1,000.

Moreover,

In today’s low-intensity wars, rebel organizations—and government forces—often kill civilians and flout international humanitarian law in other ways. But, the horrific nature of much of the violence has tended to divert attention from the fact the actual death tolls are relatively small—and have been decreasing..

The latest report notes that we get large scale killing only when big armies are involved, pointing to the US invasion of Iraq in 2003 as an example. I have always been a bit curious to hear some US-based human rights activists bemoaning the number of deaths in Darfur and in the Democratic Republic of the Congo, yet strangely subdued when it comes to Iraq. When I was on sabbatical in the US a few years ago, it seemed as if every campus had a ‘save Darfur’ campaign, but little or nothing about the misery being inflicted upon Iraq. In fact, many used to argue that the main actor capable of ‘saving Darfur’ was the US military!
Here is another interesting observation:

Take the case of Darfur. In the fall of 2006, the high-profile Save Darfur Coalition, a US-based advocacy group, claimed that since the fighting in Darfur had started some three years earlier, “400,000 innocent men, women and children have been killed.”
This figure was at least double that of most expert estimates at the time and the reference to innocents being “killed” was wholly misleading. The overwhelming majority of deaths in Darfur in this period were not the result of a government-instigated “slaughter”––as Save Darfur had claimed––but of disease and malnutrition, which were already major killers before the war. Determining what percentage of these deaths could be attributed to the impact of wartime violence rather than pre-existing conditions of abject poverty and malnutrition is extraordinarily difficult, if not impossible.
Getting mortality estimates wrong can have real-world consequences and the Save Darfur campaign’s claims have been sharply criticized by humanitarian groups and area specialists. As one critic noted, “Exaggerated death tolls . . . make it difficult for relief organizations to deliver their services. Khartoum considers the inflated numbers to be evidence that all groups that deliver aid to Darfur are actually adjuncts of the activist groups that the regime considers its enemies, and thus finds justification for delaying visas, refusing to allow shipments of supplies and otherwise putting obstacles in the way of aid delivery.”
Humanitarian agencies and nongovernmental organizations (NGOs), as well as human rights advocacy groups, actively publicize the plight of the war-affected populations they seek to assist––and often use excess mortality tolls to make a case for more aid. There are compelling reasons for doing this, as the IRC’s Rick Brennan and Anna Husarska pointed out in an article in the Washington Post on July 16, 2006, “When there is media coverage, aid increases. Large donors may be more inclined to press for a greater presence of international peacekeeping forces to protect civilians and humanitarian assistance teams. And the presence of peacekeepers makes it easier for the media to report.”
If these factors come together, they accomplish the goal of every humanitarian response: saving lives.
Saving lives is, of course, the raison d’etre of humanitarian organizations.
However, a potential conflict of interest arises here because the institutional survival of humanitarian NGOs is dependent on donor funding. But, the level of funding they receive is directly related to assessments of humanitarian need––assessments that they themselves are usually responsible for generating.

We might add to this discussion the consequences of such exaggerations in another area: prosecutorial priorities at the International Criminal Court. It is intriguing that the two examples of distorted death figures cited, and examined, in the Report are both ‘situations’ currently on the agenda of the Office of the Prosecutor of the International Criminal Court. The Prosecutor has justified his choice of priorities with references to the ‘gravity’ of the conflicts in question. On several occasions he has referred to numbers of deaths as an indicator of ‘gravity’ and a major factor in his decisions. For example, in February 2006 he rejected communications urging him to investigate war crimes committed in Iraq because his priorities, he said, should be in the Democratic Republic of the Congo where the death toll was so great. And in December 2008, I heard him charging genocide in Darfur where, he said, 60,000 people were being killed every year.
My point is that if the Office of the Prosecutor has its numbers wrong – which the Human Security Report seems to suggest – then it’s also got its strategy wrong.
This work is important in terms of international criminal justice. Not only may a more scientific approach to mortality rates (and other consequences of armed conflict) be useful in establishing prosecutorial priorities, it may also help us understand the most elusive of all claims we make: that international accountability has a deterrent effect. If the Human Security Report is correct, maybe it is helping to prove this.
More generally, if peacekeeping, international criminal justice and human rights haven’t improved the situation in recent years, we might as well give up, because we have been wasting our time. I find a report that concludes there is an overall improvement to be rather encouraging. It makes me want to continue doing what we do.

Shawan Jabarin and Canada's Rights and Democracy

I would never have imagined this, but my dear friend Shawan Jabarin, who lives in Ramallah, finds himself in the midst of a Canadian battle about human rights.
Last week, members of the board of Rights and Democracy - many years ago, I was 'senior policy advisor' to its president - which is a well-known and highly regarded Canadian organisation, resigned in the midst of a very divisive battle. That night, the president of the body, Rémy Beauregard, died of a heart attack.
At the heart of the quarrel, it seems, is the orientation that Rights and Democracy takes towards the United Nations and, inevitably, towards Israel. And so one of the central issues is a grant that Rights and Democracy gave - a paltry $10,000 - to a legendary Palestinian NGO, Al Haq, which is headed by Shawan. A graduate of our LLM programme at the Irish Centre for Human Rights, Shawan now finds himself slandered in the Canadian press as a 'terrorist'.
Distinguished members of the board of Rights and Democracy - Payam Akhavan of McGill University and the Afghan human rights activist Sima Sahar - have resigned in protest. The former presidents, Ed Broadbant, Warran Allmand, Jean-Louis Roy and Jena-Paul Hubert, have signed a letter objecting to the developments
Those who remain have issued a statement full of insult and insinuation directed against, among others, Shawan
The subtext, obviously, is the middle east, which seems to poison everything it comes near. It is all part of the broader lie that the United Nations, and especially its human rights bodies, including the Human Rights Council, are hostile to Israel. The misinformation is based upon dishonest websites like 'UN Watch' and 'NGO monitor' (for some crap from the latter,
Let the record show that Shawan Jabarin is a distinguished international lawyer who is highly regarded around the world by all those who cherish human rights. Moreover, let us put an end to the lie that the United Nations is against Israel. Actually, history shows that Israel has had a relatively soft ride at the United Nations, largely because it is protect by you-know-who in the Security Council. Out of frustration, some governments campaign on the issue in the General Assembly and the Human Rights Council, and this seems to nurture the imisimpression that the United Nations is biased against Israel. It's not true. And if there are any doubts, please look at the website of the General Assembly and the Human Rights Council.
For more on the crisis at Rights and Democracy, see: Globe and Mail; Toronto Star; Financial Post.

Palestine and the International Criminal Court

Many readers of this blog are interested in last January's declaration accepting jurisdiction of the International Criminal Court by the Palestinian Authority. The declaration was made pursuant to article 12(3) of the Rome Statute, which allows a 'State' to give jurisdiction to the ICC, without actually ratifying the treaty. The pre-eminent Palestinian human rights NGO has issued a very useful contribution to the debate in the form of its position paper on the subject: http://www.alhaq.org/etemplate.php?id=494
Thanks to Michael Kearney.

Judicial Independence in Bosnia and Herzegovina

Here is a report from the OSCE on judicial independence in Bosnia and Herzegovina. It provides a good illustration of the rule of law work. Note that the Prime Minister of the Republika Srpska went so far as to state, without evidence or other justification, that war crimes prosecutions are ethnically biased and that he would not cooperate with institutions run by "Muslim judges." There are also some very troubling efforts to deny the constitutionality of the State Court, Prosecutor's Office and other bodies. Here is a link to a short article about the report - OSCE Attacks Interference in Bosnian Judiciary.
Thanks to Stephanie Barbour.

Case law of the Rwanda Tribunal

Human Rights Watch has just published a review of case law of the International Criminal Tribunal for Rwanda, available in pdf format: http://www.hrw.org/node/87652
Thanks to Eadaoin O'Brien.

New Report on the Plane Crash that Launched the Rwandan Genocide

The plane crash of April 1994, in which Rwandan President Juvénal Habyarimana was killed, was the spark that launched the genocide in that country. Ever since, there have been conflicting accusations. Given strong evidence of planning of the genocide that followed, it has been widely accepted that the plane was shot down by Hutu extremists. Aside from its potential role in launching the genocidal campaign, there was the suggestion of dissatisfaction with Habyarimana in certain Rwandan circles because he had agreed not only to power sharing with the Tutsi-led Rwandese Patriotic Front but, and probably even more important, he had accepted a right to return of Tutsi refugees. However, some sources, like Belgian academic Filip Reyntjens and French judge Brugière, taking the view that it was Kagame and the Rwandese Patriotic Front that shot down the plane. The argument is often invoked in attempts to suggest that the Rwandan genocide can be reduced to a civil conflict in which both 'sides' were equally responsible. I've never thought much of the argument, because even if Kagame was responsible for the killing of Habyarimana, how could that possibly justify the extermination of an ethnic group? It is reminiscent of the pretexts the Nazis used, justifying the Kristallnacht on the grounds that a Jewish activist had murdered a German diplomat.
The Rwandan government has issued a new report on the assassination, conducted by international experts. It concludes that the shooting down of the plane was carried out by Hutu extremists: www.mutsinzireport.com. According to what seems to be a very thorough and rigorous study, the report says that the plane was shot down by a missile from the Kanombe base, which was controlled by government soldiers at the time, thus ruling out the RPF. It also claims that a confidential report prepared by the United Nations mission reached the same result. It cites Sean Moorhouse, a British Army captain, saying that the UN report said 'the Rwandan president’s airplane had been shot down by three Whites with the help of the Presidential Guard and that the shots from weapons which brought down the airplane were fired from the Kanombe military camp'.
Philip Gourevitch has praised the report on the New Yorker blog: http://www.newyorker.com/online/blogs/newsdesk/2010/01/the-mutsinzi-report-on-the-rwandan-genocide.html. This has attracted attention on other blogs, too:
http://thelede.blogs.nytimes.com/2010/01/12/the-spark-that-ignited-rwandas-inferno/. Predictably, there is also much criticism of the report on these blogs.
Thanks to Aimé Kalimunda.

British 'Stop and Search' Powers Knocked Down by European Court

Earlier this week, the European Court of Human Rights ruled that 'stop and search' powers exercised by the police pursuant to anti-terrorism legislation are contrary to the European Convention on Human Rights (Gillan and Quinton v. UK, http://cmiskp.echr.coe.int/tkp197/view.asp?item=18&portal=hbkm&action=html&highlight=&sessionid=42863301&skin=hudoc-en). The Court overturned consistent rulings in the British courts right up to the House of Lords.
The case involved protesters at an arms fair. Here is how the facts are described:

Between 9 and 12 September 2003 there was a Defence Systems and Equipment International Exhibition (“the arms fair”) at the Excel Centre in Docklands, East London, which was the subject of protests and demonstrations.

At about 10.30 a.m. on 9 September 2003 the first applicant was riding a bicycle and carrying a rucksack near the arms fair, on his way to join the demonstration. He was stopped and searched by two police officers who told him he was being searched under section 44 of the Terrorism Act 2000 (“the 2000 Act”: see paragraphs 28-34 below) for articles which could be used in connection with terrorism. He was handed a notice to that effect. The first applicant claimed he was told in response to his question as to why he was being stopped that it was because a lot of protesters were about and the police were concerned that they would cause trouble. Nothing incriminating was found (although computer printouts giving information about the demonstration were seized by the officers) and the first applicant was allowed to go on his way. He was detained for roughly 20 minutes.

At about 1.15 p.m. on 9 September 2003, the second applicant, wearing a jacket, carrying a small bag and holding a camera in her hand, was stopped close to the arms fair. She had apparently emerged from some bushes. The second applicant, a journalist, was in the area to film the protests. She was searched by a police officer from the Metropolitan Police notwithstanding that she showed her press cards to show who she was. She was told to stop filming. The police officer told her that she was using her powers under sections 44 and 45 of the 2000 Act. Nothing incriminating was found and the second applicant was allowed to go on her way. The record of her search showed she was stopped for five minutes but she thought it was more like thirty minutes. She claimed to have felt so intimidated and distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of it.

The European Court of Human Rights briefly examined the issue from the standpoint of article 5 (arbitrary detention), but in the result it found there had been a violation of article 8 (privacy). The Court said that while in a technical sense the measure was 'in accordance with law', which is the first limb of the test for limitations on the right under article 8, it held that the powers given to individual police were 'neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse' and that therefore, in reality, they were not 'in accordance with law'.

Activity Report of Irish Centre for Human Rights

Our latest Activity Report, covering 2008 and 2009, was published yesterday. It is available in pdf format at: http://www.nuigalway.ie/human_rights/bulletins.html. On the same page, you will also find the latest Bulletin of the Irish Centre for Human Rights.

More on Ian Brownlie

Please read Philippe Sands's wonderful obituary of the late Sir Ian Brownlie: http://www.guardian.co.uk/theguardian/2010/jan/11/sir-ian-brownlie-obituary
Thanks to Yvonne McDermott.

Legal Pluralism, by Mireille Delmas-Marty

The IntLawGrrls blog has a great contribution by Prof. Mireille Delmas-Marty on legal pluralism: http://intlawgrrls.blogspot.com/2010/01/coping-with-legal-pluralism-french.html
Thanks to Diane Amann.

Internships at the Khmer Rouge Trials

The Defense Support Section at the Extraordinary Chambers in the Courts of Cambodia is currently seeking candidates for internship posts beginning in April and July 2010. At a minimum, interns should have completed a relevant first degree or be enrolled in a relevant graduate program at the time they begin the internship. Applications are particularly sought from candidates with relevant experience in international criminal law or human rights law. For more information on the Defense Support Section and on internship possibilities visit the UNAKRT website at: http://www.unakrt-online.org/01_home.htm Chris Engels is the contact point in the Defense Support Section for this program. Interested candidates can contact him at: engels@un.org

Opera and Human Rights

Over the years, we have had some interesting events at the Irish Centre for Human Rights on culture and its relation to human rights, including seminars or conferences on James Joyce, Mozart and Schubert. We've done this in association with some of Galway's great cultural institutions, including Kenny's Bookshop, Music for Galway, the Contempo Quartet and Dr. Jane O'Leary. PhD students sometimes get a bit obsessed with their own projects, and I believe they need to enrich their own personal culture by learning more about (and enjoying) the fine arts.
Galway, where our Centre is located, is a lovely town in the west of Ireland, but it lacks some of the cultural activities of big cities. One of them is opera. Besides being wonderful entertainment, combining great music, drama and extravagant performances, opera often deals with many of the eternal themes of human rights, including torture, the death penalty and women’s equality. Many of its leading composers were themselves ideologically motivated, and this is reflected in their work.
Now, opera has come to Galway, through the ‘Live From the Met on HD’ broadcasts (http://www.metoperafamily.org/metopera/broadcast/hd_events_current.aspx). These take place on Saturday evenings at Galway’s Eye cinema. The operas are shown on a large screen, with wine, cheese and even popcorn at the intervals, and they are fabulous. Apparently even Dublin doesn’t have this! The performances are live transmissions from one of the world’s greatest opera houses, New York’s Metropolitan Opera, which has been broadcast on radio for many decades. By the way, I am sure you can get this on radio via the internet if there is no cinema nearby.
Next Saturday (16 January) the Met will broadcast Bizet’s Carmen. For those of you who are not familiar with opera, it is as good a place as any to start. Carmen is one of the most popular operas, with familiar songs and great drama. Carmen herself is a Roma cigar maker, in Spain, who is rebellious and fiercely independent. But get your tickets quickly. We were told last night, when we saw Der Rozenkavalier by Strauss, that the Eye cinema is booked solid next Saturday. They have opened a second cinema to satisfy the demand. It should be a great evening.
We’re particularly excited because the conductor next Saturday is Yannick Néguet-Séguin, one of the world’s rising stars. Yannick comes from Montréal, and is a childhood friend of our daughters. We remember him playing the piano at parties at our home, when we lived in Montréal. Then he was a precocious young musician, but we would never have dreamed at the time that we’d see him in the pit at the Met.

Cross Border Human Trafficking Decision by European Court of Human Rights

Human trafficking is the subject of an important decision by the European Court of Human Rights, issued on 7 January. In Rantsev v. Cyprus and Russia, the Court finds violations were committed by two respondent States, Cyprus and Russia, in the case of a young Russian woman working in a cabaret in Limassol, Cyprus who was found dead under suspicious circumstances (http://cmiskp.echr.coe.int/tkp197/view.asp?item=3&portal=hbkm&action=html&highlight=&sessionid=42407057&skin=hudoc-en). Although it rejected the claim that there was a violation of article 2 (right to life) due to a duty to take positive measures to prevent a violation, the Court said there was a ‘procedural’ violation of article 2 because of the failure of the Cypriot authorities to conduct an effective investigation.
There were clearly influential amicus curiae submissions by Interrights (see http://www.interights.org/rantsev/index.htm)and by the AIRE Centre on the subject of human trafficking. The Court concluded:

The absence of an express reference to trafficking in the Convention is unsurprising. The Convention was inspired by the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, which itself made no express mention of trafficking. In its Article 4, the Declaration prohibited “slavery and the slave trade in all their forms”. However, in assessing the scope of Article 4 of the Convention, sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies (para. 277).

Citing the case law of the International Criminal Tribunal for the former Yugoslavia, it said:

The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere (see paragraphs 101 and 161 above). It implies close surveillance of the activities of victims, whose movements are often circumscribed (see paragraphs 85 and 101 above). It involves the use of violence and threats against victims, who live and work under poor conditions (see paragraphs 85, 87 to 88 and 101 above). (para. 281).

The Court said that the regime of so-called ‘artiste visas’ in Cyprus did not provide adequate protection against violations of article 4 of the European Convention, which prohibits slavery and servitude. It said that Russia, too, had a procedural obligation to investigate trafficking that it did not honour.

Deterrence and the International Criminal Court

We often debate whether international criminal justice has a deterrent effect. On Thursday, at the Lubanga trial, United Nations special envoy on child soldiers Radhika Coomaraswamy told the Trial Chamber I: ‘The willingness on the part of the Court to prosecute these cases has sent many armed groups to us - the United Nations - willing to negotiate 14 action plans for the release of children; most recently yesterday in Nepal where the release of 3,000 children is about to begin today.’ (Transcript, p. 16, 7 January, available at: http://www.icc-cpi.int/iccdocs/doc/doc802628.pdf) This is a good example of the International Criminal Court influencing future conduct and not merely punishing those deviants who had the misfortune to get caught.

Project Manager, Abolition of the Death Penalty

Penal Reform International is looking for an experienced, diplomatic and motivated individual to play a key role in coordinating the organisation’s work over the next two years towards abolition of the death penalty. The post-holder will plan, coordinate and implement activities which include lobbying at national, regional and inter-governmental level, research, publications and public events. They will work closely with PRI’s regional offices in the Former Soviet Union, Africa and Middle East, and collaborate with a range of actors in the abolition and penal reform movement worldwide. Based primarily in PRI’s London head office, the post involves travel and requires the holder to have the right to work in the UK.
For the job description, person specification, and application form please contact Jenny Clarkin by email at headofsecretariat@penalreform.org before 19 January 2010.

Sir Ian Brownlie

The great British international lawyer, Ian Brownlie, died a few days ago in a car accident while vacationing in Egypt. His name is a household word for international law students. His manual on public international law, first published in the mid-1960s (http://www.oup.com/us/catalog/general/subject/Law/PublicInternationalLaw/GeneralPublicInternationalLaw/?view=usa&ci=9780199217700), and his collection of documents on international human rights law, are on all of our bookshelves and are consulted regularly. Ian is the second from the right in the photo, taken at the International Court of Justice when he was arguing the Nicaragua-Honduras case for Nicaragua.
Among Ian’s distinctions: he was elected three times to the International Law Commission (stepping down in 1998), he acted in many of the biggest cases at the International Court of Justice, he was a member of the Institut de droit international, and he was knighted in 2009 ('for services to public intenrational law').
There is a brief biography available: http://en.wikipedia.org/wiki/Ian_Brownlie. I could not find his date of birth, but would guess that he was in his late seventies at the time of his death. He once described to me living through the Nazi bombings as a boy growing up in Liverpool during the Second World War
I got to know Ian when I was a visiting fellow at All Souls College in Oxford, in 2008. He had been Chichele professor at Oxford for many years (the position is now held by Vaughan Lowe), but he objected when I described him as a professor, insisting he was now a barrister at Blackstone Chambers in London. Still, when his offices in London were being renovated, Ian spent several weeks at All Souls, where he clearly enjoyed the tranquility and the scholarly atmosphere. We often had tea together in the college’s smoking room (where smoking is now prohibited) and chatted about the genocide case at the International Court of Justice, where he acted for Serbia.
In December 2009, he was one of a group of international lawyers who wrote a legal opinion on the issue of exhaustion of local remedies by civilians in an occupied territory, an issue that arises in ongoing litigation between Cyprus and Turkey. The opinion can be found on the website of the Government of Cyprus: http://www.law.gov.cy/Law/lawoffice.nsf/All/2876FCC26DB2D5DCC22576A400276B95?OpenDocument.

Amending Article 16 of the Rome Statute

The Rome Statute of the International Criminal Court allows the United Nations Security Council to postpone prosecution under certain circumstances (according to article 16). When Africans claimed last year that the threatened prosecution of Sudanese President El Bashir should be suspended, many told them to invoke article 16. Even the Prosecutor has referred to article 16 in his statements on the relationship between peace and justice, suggesting that the Court should leave 'the interests of peace' to the Security Council.
This is a trap for the Court, and its defenders, however. Telling countries in Africa that their problems can be solved by the Security Council doesn't really sell very well. Sometimes Europeans and Americans forget that not everybody thinks that the Security Council is the place to which to turn for a solution to a problem. And so South Africa has answered this with a proposed amendment to article 16 that would let the General Assembly, and not just the Security Council, suspend a prosecution. It doesn't stand a chance of adoption, but it makes a good point. For a nice discussion of this, see a recent article by South African academic Chris Gevers: http://www.businessday.co.za/articles/Content.aspx?id=90453.

More on the Blackwater Dismissal

Iraqi officials have expressed outrage at the ruling by an American judge to dismiss charges against the Blackwater personnel who opened fire upon civilians in crowded Baghdad (see previous posting). But rather than rant at the Americans, they should do something concrete.
As a start, they should remove the immunity that they themselves conferred upon American personnel in Iraq. This would be an entirely appropriate extercise of their sovereignty. They could do it retroactively. There is no issue of the principle of legality here, given that the crime of murder was punishable under the laws of Iraq at the time the alleged crimes took place. The only issue is one of jurisdiction, which humiliated Iraq gave up but which it could reclaim.
Then it should seek Interpol's assistance in arresting the suspects. As well as the help of all of the other countries (including the United States) who love to talk so loud about ending impunity in Iraq.

Blackwater Charge Dismissal and Complementarity

The dismissal of charges against several thugs who worked for Blackwater by an American judge (http://documents.nytimes.com/memorandum-of-dismissal-of-charges-against-blackwater-guards#p=1) raises interesting questions about the complementarity regime at the International Criminal Court. Iraqis are outraged, understandably, but they must understand that the case is an example of the role of fundamental rights in a criminal justice system. The prosecutions were apparently relying upon statements that were furnished by the accused who were promised by investigators that these would not be used against them. The judge threw out the charges because this violated the right to protection against self-incrimination, calling this a ‘reckless violation of the defendants’ constitutional rights’.
The real question, though, is whether this shows the ‘inability’ or ‘unwillingness’ of the American justice system to bring such suspects to justice. The question is theoretical, because the Court doesn’t have jurisdiction over crimes committed in Iraq. But the situation would be different were the crimes committed in, for example, Afghanistan.
Readers of the blog may have opinions as to whether dismissal of charges prior to trial for what amounts to abusive misconduct during an investigation, in violation of fundamental rights would open the door to prosecution by the International Criminal Court.
Or would the International Criminal Court decline to proceed on the grounds of double jeopardy, relying upon article 20(3), which reads: ‘3. No person who has been tried by another court for conduct also proscribed under articles 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.'
The other relevant provision is article 17(3), which says: 'In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.'
My inclination is to think that if charges are dismissed in this manner, it cannot be said that the person was ‘tried by another court’, even if they were ‘in jeopardy’. It would mean that a State with all of the good will in the world, and all of the facilities, and a credible justice system, would flunk the complementarity test based upon inability. Its justice system would be 'unavailable', due to the abuse of the rights of defendants. Otherwise, it would be all to easy for American investigators to shelter people like the triggerhappy brutes from Blackwater. They would simply stage a violation of their fundamental rights, and thereby immunise them from the International Criminal Court. That couldn't possibly be tolerated under the Rome Statute.
Some readers of the blog may have seen the recent interview of Prosecutor Moreno-Ocampo with Christiane Amanpour on CNN: http://www.cnn.com/video/#/video/world/2009/12/05/amanpour.luis.moreno-ocampo.cnn?iref=allsearch. This recent failure of the American justice system to bring suspects to book suggests we should not be too sanguine about the authorities in that country. Yet I found the Prosecutor to be rather too sanguine when Amanpour questioned him about the possibility of prosecuting Americans for crimes committed in Afghanistan. She referred particularly to the use of unmanned drones, which many consider to violate the laws and customs of war because they do not sufficiently discriminate between military objectives and civilians. See, for example, the recent report of Special Rapporteur Philip Alston: http://www.democracynow.org/2009/10/28/un_special_rapporteur_on_extrajudicial_killings.