International Prosecutors

Every year at about this time, prosecutors of the international criminal tribunals - past and present - meet at the Chautauqua Institute, together with academics and other specialists, in upstate New York for a few days of discussions. This year the theme is the crime of aggression. The sessions began last night with a visit to the Robert Jackson Centre, which is nearby. Chief American Prosecutor at Nuremberg, Jackson was, of course, one of the first international prosecutors. Yesterday's visit included a session honouring Whitney Harris, who was on Jackson's team. Whitney passed away a few months ago.
The Jackson Centre has placed bricks in the entranceway with the names of all of the prosecutors of modern times. I snapped a photo of the bricks, and of some of the prosecutors standing around them. From left: Robert Petit, formerly of the Extraordinary Chambers of the Courts of Cambodia; Steve Rapp and David Crane, of the Special Court for Sierra Leone; Richard Goldstone, of the international criminal tribunals for the former Yugoslavia and Rwanda; and Andrew Cayley, currently with the Extraordinary Chambers of the Courts of Cambodia.
Later in the evening, Fatou Bensouda, Deputy prosecutor of the International Criminal Court, Serge Bramertz, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, and Bongani Majola of the International Criminal Tribunal for Rwnada, arrived. And I must also mention Ben Ferencz and Bill Caming, both of them prosecutors in the subsequent proceedings at Nuremberg, who are also with us.

Perverting the Meaning of Genocide in Leaked Report on Rwanda

A leaked draft report on Rwanda from the Office of the High Commissioner for Human Rights has been making headlines around the world with its suggestion that the current Rwandan leaders are responsible for genocide committed against Hutu in the Democratic Republic of the Congo. It nurtures the pernicious ‘double genocide’ theory promoted by Hutu extremists. They have long sought to establish a moral equivalence between those who attempted to exterminate the Rwandan Tutsi in 1994 and the reprisal crimes and collective punishments perpetrated by the victims of the genocide.

Like all ‘leak’ situations, it is a challenge to argue with the report because it is not publicly available. All that we have to go on are citations in news reports. There is also the suggestion that the Office of the High Commissioner had not issued the report precisely because of debate within the institution about the report’s far-fetched conclusions. As a result, apparently, partisans of the ‘double genocide’ theory have leaked the report to the media in order to pre-empt the possibility that they may lose the argument on their thesis prior to formal issuance of the report by the Office of the High Commissioner. They rely upon the implication that the Rwandan government is responsible for hesitation within the Office of the High Commissioner, rather than the cool heads of serious international lawyers who want to make sure that the Office gets it right.

Nor do the news reports tell us who the authors of the report actually are. Is the genocide charge backed by the opinion of prominent, international experts, whose judgment and credibility has been built up over many years - people of the stature of Richard Goldstone, or Mary Robinson, or Manfred Nowak, or Nigel Rodley, and so on ? Or is this the the work of anonymous consultants with an axe to grind?

The genocide thesis is premised on the proposition that the Tutsi-dominated combatants in the Democratic Republic of the Congo killed Hutu indiscriminately, including ethnic Hutu who were not Rwandans.

According to the story on the front page of yesterday’s New York Times:

The report says that the apparently systematic nature of the massacres “suggests that the numerous deaths cannot be attributed to the hazards of war or seen as equating to collateral damage.” It continues, “The majority of the victims were children, women, elderly people and the sick, who were often undernourished and posed no threat to the attacking forces.”

...

The report presents repeated examples of times when teams of Rwandan soldiers and their Congolese rebel allies lured Hutu refugees with promises they would be repatriated to Rwanda, only to massacre them.

In one such episode, advancing Congolese rebel fighters and Rwandan troops summoned refugees to a village center, telling them they would be treated to meat from a slaughtered cow to strengthen them for their trek back to Rwanda. As the Hutu began to register their names by prefecture of origin, a whistle sounded and soldiers opened fire on them, killing between 500 and 800 refugees, the report said.

In other instances, as survivors scrambled desperately through thick rain forest in a country as large as Western Europe, extermination teams laid ambush along strategic roadways and forest paths, making no distinction between men, women and children as they killed them.

An element of the report that could help determine any judgment of genocide concerns the treatment of native Congolese Hutu. The report suggests they were singled out for elimination along with Hutu refugees from Rwanda and Burundi. The report asserts that there was no effort to make a distinction between militia and civilians, noting a “tendency to put all Hutu people together and ‘tar them with the same brush.’ ”

These are terrible crimes, of course, but it is reckless and demagogic to start using the term genocide to describe them. Plainly, this confuses the killing of individuals because of their ethnicity – a hate crime, to be sure – with the intent to exterminate the group. Assuming, arguendo, that these allegations against the Rwandan Tutsi forces are indeed accurate, they support war crimes and crimes against humanity charges. But any allegation of genocide by Rwandan Tutsi needs to demonstrate the intent to destroy an ethnic or racial group, and in so doing it needs to explain some important facts. Amongst them:

If the Rwandan military were genocidal, why did upwards of 2 million Hutu return to Rwanda in 1997?

If the Rwandan leaders want to exterminate the Tutsi, why is there no credible evidence of this within Rwanda itself?

To be sure, international lawyers continue to debate the scope of the term genocide. Some argue that any killing, even by isolated individuals acting on their own initiative, can be labelled genocide. Others, including myself, take the view that genocide requires evidence of a plan or policy to physically exterminate the group. Such a plan or policy must be the work of a State or a State-like entity. A charge of genocide against the Tutsi combatants in the Congo must inevitably rest upon broad interpretations of the scope of genocide that extend it to all forms of hate crime, even when committed by isolated individuals. Obviously, a determination that genocide took place in Rwanda in 1994 directed against the Tutsi requires no such extension of the definition. By and large, attempts to broaden the scope of genocide in this way have been rejected by international tribunals, such as the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia.

According to the news reports, the charge of genocide actually gets sprinkled into the report in a rather qualified manner: This is from the Le Monde account: 'les attaques systématiques et généralisées [contre des Hutu réfugiés en RDC] révèlent plusieurs éléments accablants qui, s'ils sont prouvés devant un tribunal compétent, pourraient être qualifiés de crimes de génocide.' (My translation: 'widespread and systematic attacks [against Hutu refugees in the DRC] which, if proven before a competent tribunal, could amount to genocide’.)

It is easy to throw around words in this way, to devastating effect. That is the enigma of the so-called ‘g-word’. Such use of the term ‘genocide’ is particularly noxious because of the implication that the Tutsi victims of genocide were just as bad as those who attempted to exterminate them in 1994. Once this threshold is passed, the real consequence is to downgrade the significance of the genocide of the Tutsi, which was in fact one of the great international crimes of the twentieth century. If the double genocide thesis prospers, however, the certain and unarguable genocide of the Tutsi becomes distorted into little more than a detail in a protracted conflict between two rival ethnic groups, where there was evil on all sides. Thus, although the draft report may seem to be a principled denunciation of genocide in all its forms, no matter who commits it, the real consequence is the trivialization of genocide.

What Authority does the Court Have to Inform the Security Council? And Why Bother?

Yesterday, Pre-Trial Chamber I of the International Criminal Court issued a decision by which it:

INFORMS the Security Council of the United Nations and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir's presence on the territory of the Republic Kenya, in order for them to take any measure they may deem appropriate;

Actually, the reasons for the decision only speak about ‘the expected attendance of Omar Al-Bashir at the celebration scheduled for Friday 27 August’ in Kenya. The Chamber says its finding is based upon public information, and it provides a couple of internet websites as authority.

I don’t understand why they bother with such ‘decisions’. It is true that Bashir actually did go to Kenya, but when the decision was issued this had not yet taken place. When the decision was issued, Kenya was under no particular obligation, and it cannot be said that it had at that time failed to honour its obligations under the Rome Statute.

For the record, article 87(7) states:

7.  Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

There is no authority under the Statute for the Pre-Trial Chamber to ‘inform’ the Security Council or the Assembly of States Parties about developments of which it has learned on the internet. Anyway, don’t the members of the Security Council read the newspapers and surf the internet too?

Lex mitior

I'm attending a fascinating conference on criminal law in Sao Paolo, Brazil, organized by the Instituto  Brasileiro de Ciéncias Criminais. This morning, Prof. Sandra Babcock of Northwestern University delivered a fabulous lecture on capital punishment. I learned that the death penalty had been abolished recently in New Mexico, but that the governor had refused to let the legislation be retroactive. In other words, henceforth persons convicted cannot be sentenced to death, but the sentence stands for those already sentenced to death.
The United States is a party to the International Covenant on Civil and Political Rights. Article 15(1) of the Covenant declares:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. (my italics)
Article 15 is a non-derogable provision. At the time of ratification, the United States made no reservation to article 15. So it seems to me that the policy proposed by the governor is in violation of the international obligations of the United States. Perhaps France, Japan or Cameroon will remind the United States of this issue during the universal periodic review in November.
The principle by which a person is to benefit from the lighter penalty where there has been a change in the law is known by the Latin phrase lex mitior. There is a fascinating recent decision of the European Court of Human Rights on this issue: Scoppola v. Italy (No. 2).  In the past, the Strasbourg caselaw had always held that lex mitior did not exist under the European Convention on Human Rights because there is no provision comparable to the last sentence of article 15(1) of the International Covenant. But the Grand Chamber of the Court reversed that position, holding that despite the silence of the Convention, the norm must be interpreted as being comprised within the Convention.
The Court based its change in approach on the fact that 'a consensus has gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law' (para. 109). The Court conceded that article 7 of the Convention'does not expressly mention' such an obligation.

According to the Grand Chamber:

 

108. In the Court's opinion, it is consistent with the principle of the rule of law, of which Article 7 forms an essential part, to expect a trial court to apply to each punishable act the penalty which the legislator considers proportionate. Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant's detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. The Court notes that the obligation to apply, from among several criminal laws, the one whose provisions are the most favourable to the accused is a clarification of the rules on the succession of criminal laws, which is in accord with another essential element of Article 7, namely the foreseeability of penalties.

109, In the light of the foregoing considerations, the Court takes the view that it is necessary to depart from the case-law established by the Commission in the case of X v. Germany and affirm that Article 7 § 1 of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law.

This must be a further shock to those who don't appreciate judicial lawmaking. Personally, I like it.

Beyond Territoriality: Call for Abstracts

The research networking programme: Beyond Territoriality: Globalisation and Transnational Human Rights Obligations (GLOTHRO) will host an ‘inter-disciplinary stock-taking conference’ on globalisation, disempowerment of the state, and how that affects legal regimes, in particular that of human rights. The conference will take place 19-21 May 2011 in Antwerp, Belgium.

The conference will be an inter-disciplinary conference on globalisation and the disempowerment of the state (from government to governance), and how these developments affect legal regimes, in particular that of human rights. This conference seeks to take stock of the current state-of-the-art of scholarship on the impact of globalisation on the division of power among States and other powerful actors, including but not limited to transnational corporations and international organisations. It also aspires to provide an overview of a variety of regimes in international law that aim at accommodating shared responsibilities of different powerful players. More detailed on the conference and its various topics can be found here.

Those interested should send in an abstract of not more than 500 words before 15 October 2010.

China Reduces Crimes Subject to the Death Penalty

Legislation has been proposed in China that would reduce the number of crimes for which capital punishment may now be imposed. See the story on this in Xinhua. A statement by the Chairmen's Council of the National People's Congress (NPC) Standing Committee says the measure 'is meant to further implement the policy of tempering justice with mercy'.
The measure is a positive development, in that it indicates a desire to reform China's terrible practice of capital punishment. It is an effort to respond to international concerns about human rights in China.
The crimes being excluded from capital punishment include: smuggling antiquities, precious metals and rare animals; writing and selling false VAT receipts; and theft of fossils. We have no idea to what extent any of these crimes were actually subject to the death penalty in recent years in China. It may be that these provisions have become essentially obsolete in any event.
Some 55 offences remain subject to capital punishment in China. Until the Chinese authorities release statistics indicating how many people are executed and for what crimes, it is impossible to say with any certainty whether the reform represents real progress or is merely a public relations exercise.
There is anecdotal evidence to suggest there has been a significant decline in the number of executions in China in the last few years. But the only way to know for sure is for the Chinese authorities to make the numbers public. When they do so, then we'll really know that reform is underway.

United States Report to Universal Periodic Review

The United States submitted its first report to the Human Rights Council this week. Although the United States has already submitted reports to some of the treaty bodies – the Human Rights Committee, the Committee Against Torture, the Committee for the Elimination of Racial Discrimination – it has not been required to account for its observance (or lack of it) in other areas, such as economic, social and cultural rights, because it has not ratified the relevant treaty (the International Covenant on Economic, Social and Cultural Rights).

There are many very nice historical references: to Roosevelt’s Four Freedoms speech, to Eleanor Roosevelt, to W.E.B. DuBois, and so on.

The report struck me as being pretty self-congratulatory, but then that is the case for most states. I don’t want to be too hard on it, however, because some of the very mild self-criticism in the report seems to have set off a firestorm in the extremist press in the United States. For example, the Washington Times said that America had admitted it belonged in the camp of Cuba, North Korea, Iran and Syria, and described the document as ‘a strange combination of left-wing history and White House talking points’.

The report is sprinkled throughout with curious links to various documents and websites. For example, in paragraph 92, its refers to a speech by President Reagan who said that the United States is ‘still a beacon, still a magnet for all who must have freedom, for all the pilgrims from all the lost places who are hurtling through the darkness, toward home’. These words are highlighted, and if you click on them you are taken to a 1783 address by George Washington to Irish immigrants, which is where the idea of America as a beacon apparently came from.

The report will be examined during the morning of 5 November 2010 by the Human Rights Council, under the lead of a so-called troika of States: France, Cameroon and Japan.

Prisoner Krstic in British Courts: The Banality of Evil

Radislav Krstic is one of the more celebrated defendants before the International Criminal Tribunal for the former Yugoslavia. Convicted of genocide by a Trial Chamber in 2001, he was somewhat successful on appeal and had the conviction replaced with one of aiding and abetting genocide. Krstic has been serving his sentence in the United Kingdom.
After experiencing what was described as a 'life threatening attack' in prison, Krstic applied to have his prisoner status reclassified so that he could benefit from more favourable conditions of detention in a more relaxed carceral environment. The decision was denied at the administrative level on the grounds that the crimes he had committed made him inherently dangerous. But on judicial review, in a ruling issued ten days ago, the decision was quashed and prison authorities ordered to consider whether he constitutes a risk to the public at the present time.
I've referred to Hannah Arendt's famous phrase, 'the banality of evil', used to describe Eichmann. As the English judge pointed out, some crimes, like sexual abuse, connote an inherent dangerousness. But if you take Krstic out of Bosnia in the midst of ethnic conflict, he becomes quite harmless. He is only 'evil' in a certain context. That is not to say that he should not be punished severely for his crimes. But it is hard to justify imposing a harsh prison regime based on the presumption that his participation in genocide in Bosnia in 1995 makes him a dangerous man in England in 2010.
Thanks to Michael Bohlander.

Bangladesh International Crimes Tribunal

The latest internationalized criminal justice institution to be set up is the International Crimes Tribunal of Bangladesh. It was set up recently by the government of Bangladesh to prosecute Bangladesh citizens alleged to have committed crimes against humanity, war crimes and other international crimes during the 1971 independence war of Bangladesh. There is a blog on the subject. The legislative basis of the Tribunal dates to 1973; more recently, Rules of Procedure and Evidence have been adopted.

For further reading on this, see the special edition on Bangladesh in the Criminal Law Forum, with articles by Suzannah Linton, Gideon Boas, and Sara Hossain and Bina D’Costa.

Also related to the 1971 atrocities was an application filed by Pakistan against India pursuant to article IX of the 1948 Genocide Convention. It was the first such application - the next was by Bosnia in 1993, and there have been several since.

Thanks to Kjell Anderson and Suzannah Linton.

'I'm out of the office...'

Occasionally, this blog gives suggestions and advice of a rather practical nature to doctoral students. This is the season for e-mail messages being bounced back with an 'I'm out of the office...' Those who correspond with me will know that I have never used such messages. There was a fine column on the subject earlier this year by Tyler Brûlé, a writer who does a weekly piece in the Financial Times. His advice is directed to people in business, but it seems just as applicable to doctoral researchers (and others).

'I can't understand the point of such messages', says Brûlé. I couldn't agree more.

Two New States Join ICC. Total Now 113

Seychelles and St Lucia have submitted instruments of ratification of the Rome Statute. Both States had signed the Statute prior to 31 December 2000. The total of States Parties to the Rome Statute is now 113.

UK Human Rights Blog

This new blog may be of interest to readers of the blog. It is the UK Human Rights Blog which is written by members of 1 Crown Office Row barristers chambers. There is an option of subscribing to free email alerts on the website also.

Thanks to Eadaoin O'Brien.

Human Rights Internship in Sarajevo

The Organization for Security and Cooperation in Europe (OSCE) Mission to Bosnia and Herzegovina Judicial and Legal Reform Section conducts a state-wide trial monitoring programme of criminal cases, from the investigation stage to the execution of criminal sanctions. The Mission uses these  monitoring findings to promote the necessary judicial and legal reforms and to provide assistance and advice on human rights conventions and obligations to authorities at all levels of government. Applications for internships with the Judicial and Legal Reform Section are accepted on a rolling basis. Preference is given to candidates with a university qualification in law, fluent English, a demonstrated commitment to human rights and rule of law work, and the ability to commit to an internship of six months duration. Interns are based in the Head Office in Sarajevo.Suitable candidates are encouraged to apply in the coming period by submitting the standarised application form and a cover letter to jobs.ba@osce.org.
Here is the application form.

International Law Association Conference

I've been attending the International Law Association conference in The Hague this week.
The ILA is a rather unique body. Really, it is the only truly universal international law organization that is open to all who wish to join. Most members are academics, practising lawyers and diplomats. Many doctoral students attend the meetings and participate actively. The ILA holds a conference somewhere in the world every two years, and has been doing so since its founding, in 1873. The previous one was in Rio de Janeiro. The next one, in 2012, will be held in Sofia, Bulgaria.
This year's conference has its own website and its own  blog. I won't try and duplicate the very useful and informative descriptions of the events that are to be found on the Conference blog.
The Conference lasts four full days. Its sessions include a number of thematic meetings, although the heart of the work of the Association and its Conference is in the Committees. Yesterday, the Committee on the International Criminal Court met, and its report was adopted. The Committee also adopted a resolution which calls for States to ratify the new amendments to the Rome Statute. Other Committees deal with such thematic topics as human rights and the use of force.
The reports of the Committees are authoritative, and provide a useful guide to the directions that international law is taking.
The Conference is also a great occasion to meet old friends and make new ones. All of the major publishers have book tables, and one can quickly get up to date with all of the new publications. Most are for sale at a fraction of the regular price. Doctoral students would get much benefit from attending.
The Association does much of its work through national branches. In Ireland, our national branch was revived a couple of years ago and now has many members, including a significant number of doctoral students, for whom the membership fee scale is very advantageous.

Human Rights in Burma

A rather too kind description of the situation in Burma by a travel writer for the Irish Times has been answered in today's paper by Joe Powderly, who is a doctoral student at the Centre and one of the authors of our recent report on the situation in Burma
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On-line Database on Customary International Humanitarian Law

To mark the 12 August anniversary of the adoption of the Geneva Conventions, in 1949, the International Committee of the Red Cross has launched a new on-line database of the organization's major study of customary international humanitarian law. The project was developed in association with the British Red Cross, and by a team that included one of our PhD graduates, Anthony Cullen.

The database is designed to be used as a legal reference in international and non-international armed conflicts, including by courts, tribunals and international organizations. The new customary international humanitarian law database features 50 per cent more content than the original published study. A printed version would run to more than 8,000 pages. Divided into two parts, the first includes 161 rules which the original study assessed to be of customary nature. The second part contains the practice on which the conclusions in part one are based. The database offers practitioners and academics easy access to the rules of customary international humanitarian law identified in the ICRC study and gives them the opportunity to investigate underlying practice by means of three search parameters: subject matter, type of practice and country.
The database also contains new international materials, in particular international case law and United Nations material up until the end of 2007. As the formation of customary international humanitarian law is an ongoing process, regular updates, including of national practice, will be provided.

Thanks to Nathan Derejko.

US Court Rejects Challenge Concerning Teaching Materials on Armenian Genocide

The United States Court of Appeals, First Circuit, has dismissed an appeal of an unsuccessful challenge to a decision by school board officials in Massachusetts to remove materials from a ‘curriculum guide’ that challenged the Armenian genocide. The issue began with preparation of materials for a genocide and human rights programme that referred to the Armenian genocide. When the draft materials were circulated, Turkish groups protested and some references to ‘anti-genocide’ materials were added to the draft. But faced with further opposition, the references were subsequently removed. The Turkish groups challenged the decision to remove these references. It is this challenge that was dismissed a few days ago by the Court of Appeals.

The Court distinguished the facts from a decision of the Supreme Court, known as Pico, which dealt with the decision of a school librarian to remove certain books deemed offensive from the school library. In that case, the Court, by a rather uncertain majority, held that there had been a violation of freedom of speech.

Consultancy on Fair Trial Standards

The Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe is looking for a consultatnt to produce a legal digest of international fair trial standards, including the description of the elements, the compilation of the most recent doctrine and case law and the best practices derived from trial monitoring. See the job announcement.

Thanks to Maria Alcidi

Territorial Declarations and the Rome Statute

On 11 March 2010, the United Kingdom informed the Secretary-General that it wished that its ratification of the Rome Statute of the International Criminal Court ‘be extended to the following territories for whose international relations the United Kingdom is responsible:  Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, Sovereign Base Areas of Akrotiri and Dhekelia, Turks and Caicos Islands’. The declaration added that the United Kingdom ‘considers the extension of the aforesaid Statute ... to take effect from the date of deposit of this notification…’

 On 19 May 2010, Argentina deposited the following declaration:

[The Argentine Government refers] to the attempt to extend the application of the Rome Statute to the Islas Malvinas, Georgias del Sur and Sandwich del Sur on the part of the United Kingdom of Great Britain and Northern Ireland dated 11 March 2010.

       The Argentine Government recalls that the Islas Malvinas, Georgias del Sur and Sandwich del Sur and the surrounding maritime areas are an integral part of the Argentine national territory and are illegally occupied by the United Kingdom of Great Britain and Northern Ireland, being the subject of a sovereignty dispute between both countries which is recognized by several international organizations.

       The General Assembly of the United Nations adopted resolutions 2065 (XX), 316[0] (XXVIII), 31/49, 37/9, 38/12, 39/6, 40/21, 41/40, 42/19 and 43/25, in which the sovereignty dispute referred to as the “Question of the Malvinas Islands” is recognized and the Governments of the Argentine Republic and the United Kingdom of Great Britain and Northern Ireland are urged to resume negotiations in order to find as soon as possible a peaceful and lasting solution to the dispute.  Concurrently, the Special Committee on Decolonization of the United Nations has repeatedly affirmed this view.  Also, the General Assembly of the Organization of American States adopted, on 4 June 2009, a new pronouncement, in similar terms, on the question.

       Therefore, the Argentine Government objects and rejects the British attempt to extend the application of the Rome Statute of the International Criminal Court to the Islas Malvinas.

       The Argentine Government reaffirms its legitimate sovereign rights over the Islas Malvinas, Georgias del Sur and Sandwich del Sur and the surrounding maritime areas.

       The Argentine Government requests the Secretary-General that this note and its English text be notified to the States Parties and Contracting States to the Rome Statute of the International Criminal Court.

There is no precise provision in the Rome Statute allowing for States to extend the scope of the treaty to territories ‘for whose international relations they are responsible’. It is a concept that is not contemplated by the Statute. The Statute provides that a State that ratifies or accedes to the treaty confers jurisdiction on the Court with respect to its ‘territory’ (see art. 12(2)(a)). For example, when it ratified the Statute, Cyprus gave jurisdiction over its ‘territory’ which is the island of Cyprus. That means that the northern part of the island, which has been occupied by Turkey since 1974, is also within the jurisdiction of the Court. Depending upon the legal status of the two ‘sovereign base areas’ within Cyprus, the ratification also extended the Statute to them as well. It is a consequence of the fact that the ‘sovereign base areas’ are part of the ‘territory’ of Cyprus.

And what of the Malvinas/Falkland Islands? The declaration of Argentina is not clear on the subject, but shouldn’t Argentina take the position that the islands were already subject to the jurisdiction of the Court from the moment that Argentina ratified the Statute (because Argentina ratified in 2001, the Statute is in force for Argentina as of 1 July 2002)?

Did the United Kingdom leave anything out of its declaration? What about Diego Garcia, which is part of the Chagos Archipelago in the British Indian Ocean Territory. After expelling the inhabitants of the islands, the British then essentially handed over the base to the United States, which uses it as a kind of a fixed aircraft carrier. Is the Diego Garcia military base subject to the Rome Statute because it forms part of the 'territory' of the United Kingdom? Or does the recent declaration attempt to confirm that it is not subject to the jurisdiction of the Court, because the United Kingdom has not made a declaration to that effect? 

Aside from jurisdiction over territory, there is also the issue of responsibility for arrest and other cooperation obligations under the Rome Statute. By its declaration, was the United Kingdom suggesting that it was not previously responsible for cooperation with the Court with respect to the territories listed in the declaration?

These territorial issues merit further study. They are not without relevance to the simmering issue of the Palestinian declaration pursuant to article 12(3), which is still being considered by the Office of the Prosecutor. They also seem to be pertinent to similar debates within the framework of human rights treaties about the territorial scope of obligations. This has arisen with respect to applications before the European Court of Human Rights directed against the United Kingdom with respect to its conduct in Iraq, and with respect to the obligations of the United States under the International Covenant on Civil and Political Rights with respect to Guantanamo in Cuba. The issue of territorial application of the Rome Statute would make a fine doctoral project.


Marko Milanovic has commented on this on the EJIL blog.

African Union Criticizes ICC Prosecutor

The Declaration on the International Criminal Court adopted late last month at the summit of the African Union criticizes the Prosecutor for what it calls 'egregiously unacceptable, rude and condescending statements on the case of President Omar Hassan El-Bashir of The Sudan and other situations in Africa'. I have reported some of these statements in previous postings on the blog, describing them as inappropriate. My concern was always with how they would be interpreted in Africa by Africans. The final statement is available here.

More on Campbell's Testimony, and What to Expect on Monday

It is reported that Mia Farrow will testify before the Special Court for Sierra Leone next week, as well as Naomi Campbell’s former agent, Carole White. Presumably, the purpose of the testimony is to contradict what Naomi Campbell said in her testimony on Thursday.

I have read the entire transcript, and conclude that Campbell’s evidence cannot be of assistance to the Prosecutor in the case against Charles Taylor. She says that while staying at Nelson Mandela’s house in 1997 she was awakened in the middle of the night by a knock on the door and given a few small uncut diamonds, but that she does not know who gave them to her. At breakfast the following morning she told this to her agent, Carole White, and to Mia Farrow, who were also staying at the Mandela residence. Mia Farrow apparently replied that this must have been a gift from Charles Taylor, who was also staying in the house. But since Farrow only learned of the gift from Campbell, she is not really a witness to anything.

The purpose of calling Naomi Campbell, according to the decision authorizing the subpoena of 30 June 2010, was to provide direct evidence that Charles Taylor was in possession of rough diamonds. But if Campbell says she doesn't know where the diamonds came from, all that her evidence shows is that someone at the Mandela residence on the night she stayed there in 1997 was in possession of rough diamonds. I suppose it could have been Charles Taylor. But there were many people in the house that night.
Farrow and White have both given statements to the Prosecutor, and they have ben disclosed to the defence. Taylor’s defence counsel referred to these statements when he cross-examined Campbell on Thursday, repeatedly asking Campbell if the various components of the statements by Farrow and White were lies, to which Campbell regularly replied in the affirmative.

After the cross-examination was complete, the Prosecutor re-directed some questions, and challenged Campbell, saying ‘Isn’t it correct that your account today isn’t entirely truthful…’

Defence counsel promptly objected, saying that the Prosecutor was in effect cross-examining her own witness, and that this was not proper. The presiding judge agreed, saying that the Prosecutor could not challenge her own witness. Then the Prosecutor said that Campbell wasn’t really her witness, as she had been compelled to testify by subpoena, to which the presiding judge said: ‘Ms Hollis, if this witness is not a Prosecution witness, whose witness is she?’

All of this suggests that if Farrow and White are only being produced to question the truthfulness of the version Campbell gave the Court on Thursday, the defence will object immediately and the objection will be sustained. You don't call a witness to prove that your previous witness was a liar. And even if this were allowed, would would it prove? If Naomi Campbell's credibility is demolished, then her testimony is worthless and we are back to square one. You cannot use the testimony of a witness to prove the contrary of what a witness said by establishing that they lied.

Can there be more to this? It seems clear that Farrow cannot know anything other than what Campbell told her about the gift of the diamonds, so her evidence should not be admissible. As for White, there was a suggestion in the testimony on Thursday that White may have seen the individuals give the diamonds to Campbell, in which case she might have material evidence that could possibly implicate Taylor. This might strengthen some link between the men who gave Campbell the rough diamonds and Charles Taylor. It would still be a pretty flimsy link.

As the defence counsel noted, however, White launched a civil suit against Campbell for breach of contract almost a year ago, and this cannot enhance her credibility. Apparently all of this came to light a couple of weeks after White filed the civil suit. There is a contemporary issue between White and Campbell that makes competing versions of conversations that took place thirteen years ago of doubtful utility.

This raises another issue of some interest. Campbell claimed she was compelled to testify before the Court, and it is a fact that faced with her refusal to cooperate with the Prosecutor, on 30 June 2010 the Chamber decided to issue a subpoena. This is provided by the Rules of Procedure and Evidence of the Court. But it seems highly doubtful that the authority to issue a subpoena extends beyond the territory of Sierra Leone. In its 30 June 2010 ruling, the Chamber invoked Resolution 1688 of the Security Council. This is the resolution by which Charles Taylor was transferred to The Hague. Operative paragraph 4 of the resolution ‘Requests all States to cooperate to this end, in particular to ensure the appearance of former President Taylor in the Netherlands for purposes of his trial by the Special Court, and encourages all States as well to ensure that any evidence or witnesses are, upon the request of the Special Court, promptly made available to the Special Court for this purpose’. Compare the language with that of Resolution 1593, by which the Council referred the Situation in Darfur to the International Criminal Court. There, it ‘Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’. I’m looking for the magic word decides in Resolution 1688.

The subpoena itself threatens Naomi Campbell with detention of seven years and a fine of two million leones (the Sierra Leone currency). Leones! To be imposed upon an individual resident in the United Kingdom for failure to appear in The Hague! If the Court really had such a power, we’d expect to see a fine in dollars or in euro. And where would they detain her? The Court would need an agreement with another sovereign state in order to do so, and I don’t believe it has one. Perhaps Naomi Campbell’s lawyers did advise her that she did not need to appear before the Court. Perhaps she decided to do so anyway, as a good international citizen. The suggestion she made that she was forced to appear does not hold water.

The subpoena issue has been subject of some debate in International Criminal Court circles, where it is a surprise to many that the Court has no subpoena power. The International Criminal Court is premised on voluntary appearance by witnesses. Those who find this to be some fatal flaw should be aware that it is a very rare event for a party to criminal proceedings to subpoena a reluctant witness. Parties request witnesses to testify when they assume they will be cooperative and helpful. Wise lawyers know that it will rarely help their case to force someone to testify. If the Prosecutor of the Special Court needed to be reminded of why this is so, Naomi Campbell did a good job on Thursday.

Naomi Campbell at Special Court for Sierra Leone

Charles Taylor's lawyer Courtney Philips described Naomi Campbell's testimony at the Special Court for Sierra Leone as a 'spectacular own goal'. The general view seems to be that the testimony did not deliver what the Prosecutor had hoped, namely a direct link between Taylor and conflict diamonds.
The transcript of the hearing is now available. For a good account of the hearing, as always, read Marlise Simons in the New York Times.
The connection between Taylor and conflict diamonds is certainly an issue in the case. But even if that were proven, does it show that Taylor was directly involved in war crimes and crimes against humanity in neighbouring Sierra Leone? It merely links him to support and financing of a rebel group trying to overthrow the regime in another country. I never thought that issue was even in doubt.
The whole business is looking more and more like a debate about what common lawyers call a collateral evidentiary issue. Unlike most common law rules of evidence, this one is not about shielding the jury from unreliable testimony. Rather, it is about developing tangential issues with a view to challenging credibility, something that never ends because most people will lie about something if you push them far enough.
If Naomi Campbell had said Taylor gave her the diamonds - which she did not - then that might prove Taylor was a liar when he said he did not have conflict diamonds. But maybe Campbell is lying. Apparently we will soon be treated to Mia Farrow and Campbell's former PA who will, presumably, say that Campbell didn't tell the truth. And then there's the leader of the South African NGO who first claimed he never received any diamonds, after Campbell said she gave them to him for his NGO. Now he admits that he took them, but didn't give them to the NGO.
Maybe there is more than one liar in this whole business. But the story is now about vanity, greed and  celebrity, and very far indeed from the terrible human rights violations that ravaged Sierra Leone in 1997 and 1998.

Human Rights Training for Children

This week, I paid a visit to Equitas in Montreal. It is the International Centre for Human Rights Edeucation, which is the new name of the Canadian Human Rights Foundation. Two students in our BA Connect programme are currently doing internships with Equitas, and I went to visit them and see how they are doing.

I learned of a fascinating programme that Equitas has developed to educate young children – from the age of six – in human rights. The programme is being implemented in summer day camps across the country. It is designed to be delivered by camp counselors, who would typically be young persons in their late teens.

Called ‘Play It Fair’’, the programme is described as follows:

The Play It Fair! programme aims to promote diversity and harmonious intercultural relations by addressing discrimination based on grounds such as race, ethnicity, culture, gender, disability or sexual orientation with the active participation of children and youth. Equitas, in collaboration with municipal authorities and community based organizations, is integrating the Play It Fair! program into existing programs for children. In 2008, the Play It Fair! Toolkit was implemented in over 200 camps and approximately 2,000 individuals were trained and over 40,000 children were reached in summer camps and after school programmes in Montreal, Vancouver, Toronto, Winnipeg, Moncton-Dieppe and Fredericton.

The relevant materials are all available on the internet. They are in both English and French. They can be adapted for use virtually anywhere in the world. Click here.

Yvonne McDermott is Guest Blogger on IntLawGrrls

IntLawGrrls welcomes Yvonne McDermott, who is a doctoral student at the Irish Centre for Human Rights, as its guest blogger. Yvonne dedicates her blog to two Irish women, and writes on procedural issues at the international criminal tribunals. Congratulations, Yvonne.

European Court Rules on Prohibited Weapons in Armed Conflict, Retroactivity

An interesting recent decision by the European Court of Human Rights rejects a challenge based upon article 7 of the European Convention (non-retroactivity of criminal law). In Van Anraat v. Netherlands, the applicant challenged his conviction for war crimes based upon his involvement in the supply of ‘mustard gas’ (or thiodiglycol) to the Iraqi regime during the 1980s.

Van Anraat (shown with Saddam Hussein in the photo) argued that this was not a prohibition under customary international law. He said the use of such a weapon ‘could not be seen as morally or legally different from the use of napalm (an incendiary weapon) by United States forces during the Vietnam War (1959-1975) and was moreover insignificant in comparison with the possession of nuclear weapons by a small number of States and their actual use in anger in 1945. In these circumstances, he argued, he could not have been expected to realise at the time of the Iran-Iraq war that he was acting illegally by reason of his commercial activities.’ (para. 74).

A Chamber of the Court held as follows

89.  Of the norm-creating character of the 1925 Geneva Gas Protocol there can be no doubt. This Protocol was opened for signature at a time when the use of noxious chemical substances on European battlefields was still a recent memory, with the explicit intention, stated in its Preamble, that the prohibition of any such future use should be “universally accepted as a part of International Law, binding alike the conscience and the practice of nations” (see paragraph 23 above).

90.  The Court then notes that beginning in 1972 many of the States which had ratified the 1925 Protocol subject to a reservation of no first use withdrew their reservations, thus expressing their consent henceforth to be bound unconditionally. Also in 1972 a new conventional instrument was laid open for signature, the Biological Weapons Convention (see paragraph 37 above), which explicitly reaffirms the prohibition contained in the 1925 Geneva Gas Protocol (see paragraph 39 above). By the beginning of the Iran-Iraq War this treaty had been ratified or acceded to by a considerable majority of the States then in existence; others continued to do so even as the war continued (see paragraph 38 above). The Court takes these developments as proof not only of State practice consistent with the norm created by the 1925 Protocol but also of opinio iuris. The issuing, by a number of Governments, of instructions to their armed forces proscribing the use (or the first use) of chemical weapons (see paragraph 40 above) reinforces this view, as indeed does the drafting history of the Chemical Weapons Convention (see paragraph 51 above).

91.  Finally, the Court must have regard to the repeated condemnation throughout the Iran-Iraq war by the General Assembly of the United Nations (see paragraphs 42-46 above) and the Security Council (see paragraphs 47-50 above) of the use in that war of chemical weapons.

92.  The Court thus finds that at the time when the applicant supplied thiodiglycol to the Government of Iraq a norm of customary international law existed prohibiting the use of mustard gas as a weapon of war in an international conflict.

To the extent that the conflict might be deemed a non-international armed conflict, the Court said that Iraq was bound by common article 3 of the Geneva Conventions, adding that the Appeals chamber of the International Criminal Tribunal for the former Yugoslavia, in the Tadic Jurisdictional Decision, held that there was a rule of customary international law prohibiting the use of chemical weapons by States against civilian populations within their own territory (para. 94).

Responding to the arguments about nuclear weapons and napalm, the Chamber said: ‘Incendiary and nuclear weapons are subject to separate regimes not relevant to the present case (see paragraphs 34 and 41 above). That being the case, the applicant's comparison of mustard gas with napalm and nuclear weapons is irrelevant to the case before the Court.’ (para. 76)

Thanks to Fannie Lafontaine.

Job Advertisements

Here are a couple of recent job advertisements :

University of Antwerp: Researcher on Power Sharing and Human Rights

Lead researcher on the two year research project entitled 'A human rights approach to power-sharing as a tool of conflict resolution in Africa'. The project aims at scientifically analyzing the technique of power-sharing – which has increasingly been used as a component of contemporary peace agreements – from a human rights perspective. The successful candidate will conduct research on the basis of two country related case-studies (out of the following list of countries: Democratic Republic of the Congo, Kenya, Sierra Leone, Sudan and Uganda; the selection to be made taking into account the candidate’s profile), two human rights dimensions (state obligations related to the accountability of perpetrators of human rights violations and the right to self-determination, in particular as it applies to the exploitation of natural resources) and the policy and practice of two intergovernmental actors frequently involved in peace processes in Sub-Sahara Africa (the United Nations and the African Union). Research findings will be presented at an international expert seminar and submitted for publication to international peer reviewed journals.

The ideal candidate has a Master degree in law and a specialization in human rights or law and development; two years of relevant research experience, expertise on the countries and/or human rights dimensions and/or intergovernmental institutional frameworks referred to in the above job description, an interest in pursuing doctoral research for which this two year research project offers a useful preparatory stage and for which he / she will try to obtain external funding, excellent written and spoken communication skills in English, ability to work independently and as a team member.

Candidates must send an application letter, including a CV, a list of publications and the contact details of two reference persons. Deadline for applications is 1 October 2010. The expected commencement of employment is 1 January 2011.

Send applications to Prof. Koen De Feyter, University of Antwerp (UA), Faculty of Law, Prinsstraat 13, 2000 Antwerpen, Belgium (koen.defeyter@ua.ac.be). For further information, please contact Dr. Stef Vandeginste on stef.vandeginste@ua.ac.be or 32 3 265 52 97.

Concordia University, Assistant or Associate Professor in Genocide Studies and Human Rights.

Position to start 1 July 2011. Deadline for applications 1 November 2010. For the full announcement, click here.

Applicants for the James M. Stanford Professorship in Genocide and Human Rights Studies should have recognized expertise in the study of one or more major cases of genocide and in one or more relevant disciplines such as history, political science, sociology, anthropology, or human rights. The person hired will work with me closely in the coming years to build on the strengths of the Montreal Institute for Genocide and Human Rights Studies (MIGS) and the Will to Intervene project (W2I) at Concordia University and will participate with me in the administration of MIGS.

Two Executions in Japan

Last week, Japan executed two men, Ogata Hidenori and Shinozawa Kazuo. These were the first executions in a year. See the Amnesty International materials.

Kenya Judgment on Mandatory Death Sentence

In a unanimous judgment, the Kenyan Court of Appeal has declared the mandatory death sentence to be unconstitutional. It also made an important finding on the death row phenomenon, holding that a three-year period of detention prior to execution was a violation of fundamental rights.
Hats off, once again, to Saul Lehrfreund and Parvais Jabbar of the Death Penalty Project, who have helped develop this litigation in courts around the world.

Developments during Vacation Time

I’ve not been a very active blogger for the past couple of weeks. been exercising my rights under article 24 of the Universal Declaration of Human Rights (‘Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.‘), vacationing in Canada with my grandsons.

Just before I left, I was in The Hague lecturing at the Academy, which is located in the premises of the International Court of Justice. I didn't manage to have dinner with Lubanga, because the Trial Chamber of his release was suspended  by the Appeals Chamber.
By chance, I was at the Peace Palace when the Court issued the Kosovo advisory opinion. Space was at a premium in the Court itself and tickets were not available (although there seemed to be lots of empty seats). A crowd gathered in the adjacent building, where the videolink was broadcast of the reading of the opinion (see photo).
The Court has taken a very cautious approach to this very tendentious issue, ruling only that a declaration of independence was not prohibited by international law. It declined to pronounce itself on the greater issues of self-determination and rights of secession. My suggestion to students who are trying to understand what the Court did and did not say is to read the various individual and dissenting opinions. They put a rather flat opinion into three dimensions, providing us with a way to understand where the difficulties and the fault lines are to be found.
There have been some interesting developments at the international criminal tribunals. Here are a few of them:

• At the International Criminal Tribunal for the former Yugoslavia, the Appeals Chamber granted a prosecution appeal and ordered a new trial for Ramush Haradinaj. It is apparently the first time that a new trial has been order following an acquittal at first instance.

• Also at the International Criminal Tribunal for the former Yugoslavia, a Chamber opens an investigation into allegations of contempt of court directed against the former Prosecutor, Carla del Ponte

• At the International Criminal Court, a complaint is lodged by an NGO concerning the op-ed of Luis Moreno-Ocampo on the Bashir genocide decision (about which I made some comments in an earlier posting on this blog)

• The Appeals Chamber of the International Criminal Court made a ruling on participation of victims during the trial

At the Extraordinary Chambers of the Courts of Cambodia, the first conviction was registered.against Kaing Guek Eav (alias Duch), who was the chief of Tuol Sleng prison under the Khmer Rouge regime. He was convicted of crimes against humanity and war crimes. It bears repeating that he was not even charged with genocide. This is another curious footnote in the evolving debate about the scope of genocide. For three decades, there has been talk of the ‘Cambodian genocide’. Yet in this historic conviction, the word does not appear. Duch was not charged with genocide, of course. We have an example of prosecutorial restraint based upon a sober reading of international law, in stark contrast to the extravagance of the Office of the Prosecutor at the International Criminal Court.
Duch was sentenced to 35 years in prison, of which five years were cut because of illegal detention for several years. Duch is also entitled to an 11-year reduction for time served since his arrest. That means that he has another 19 years to serve. Duch is currently 67 years of age.
There has been some consternation about this sentence, which some feel to be too lenient. In my view, it is very much in keeping with the norms of international law. Even if Duch had been sentenced to life imprisonment, he would be entitled to have the illegal detention as well as his time served taken into account. The result would probably be the same, in that he would have his detention reconsidered for purposes of release on parole after a certain number of years.
Duch’s trial was never in doubt because he confessed to the charges. He has shown remorse. The idea that such a man could be released when he reaches the age of eight-six, after having spent thirty years in jail, should not shock anybody.
Thanks to the many contributors who have alerted me to these decisions, including Dov Jacobs and Nilofar Sarwar.