New York Review of Books

Many readers of the blog will be familiar with the New York Review of Books. I,ve had a subscription for many years. It provides me with a bit of urbane stimulation on wet and windy evenings at my home in bucolic Ireland.

I’ve just received the 30 September issue in the post. I think that a subsequent edition is already on sale on newstands in New York and elsewhere. If you are lucky, you might find a copy of the 30 September issue. Otherwise, you can purchase it on the internet.  It is a particularly fine issue, with many fascinating articles. In particular:

Philippe Sands, ‘A Very British Deceit’. Prof. Sands provides some new insights into Blair’s behaviour in 2003 as he led the UK into an illegal war. He refers to documents that emerged in the Chilcott Inquiry and that were only released after the recent elections.

Roger Cohen, ‘Revealing “Turkey’s Hidden Past”’. An interesting contribution to the ongoing discussions about genocide in Armenia during World War I, based upon a recent book by Christopher de Bellaigue.

Timothy Snyder, ‘What We Need to Know About the Holocaust’. Snyder’s review of recent monographs is not very kind to Danny Goldhagen’s Worse Than War, but rather more sympathetic to Yehuda Bauer’s The Death of the Shtetl.

Plus a charming obituary for Tony Judd by Timothy Garton Ash, a previously unpublished essay by Judt himself, an interesting review of a recent performance of The Merchant of Venice starring Al Pacino, a letter to the editor from Stephen Sedley, and much more.

Good value for money!

Irish-American Seminar on Human Rights

On 17-18 October, the Irish Centre for Human Rights will be hosting the second annual Irish-American Seminar on Human Rights, in partnership with the Centre for Civil and Human Rights of the University of Notre Dame, in the United States. Here is the draft programme.
As you can see, it is a bit eclectic, because it seeks to provide an informal gathering at which colleagues from the two institutions - and others - can present papers on areas of interest in the field of human rights. All are welcome, by the way. If you wish to attend, please contact Alexis Bushnell at a.bushnell1@nuigalway.ie.
There is a bit of a literary theme. The second day will be held at Galway's legendary bookstore, Kenny's Book Shop. We will have several papers dealing with human rights aspects of literature.

Irish Cultural Centre Conferences on Human Rights

This year, we continue with the cycle of conferences on human rights at the Irish Cultural Centre in Paris. The first such conference is on 12 October: Dr Kathleen Cavanaugh, Irish Centre for Human Rights, 'Illiberal Secularism: Islam in the Public Sphere'.
On 9 November, Dr Jean Allain, Queens's University Belfast, 'Contemporary Forms of Slavery: Old Definitions and New Challenges'.
On 14 December, Prof. Joshua Castlellino, School of Law, Middlesex University, 'Minority Rights: Contemporary Issues'.
For details, click here. 

The conferences are sponsored by the Irish Centre for Human Rights and the Centre de Recherche sur les droits de l'homme et le droit international humanitaire of the University of Paris II.

Top Ten Graduate Student Blogs

Onlinedegrees.org has compiled a list of the top ten graduate student blogs. Guess which blog is number 2!

The Gaza Flotilla Report: Some Comments

A few days ago, this blog reported upon the issuance of the report of the fact-finding commission established by the Human Rights Council to investigate the attack on the Gaza flotilla on 31 May 2010. I’ve now had a few days to read and study this most interesting report, which concludes that Israel violated international law in several respects.

Perhaps the most striking aspect is the focus of the report upon human rights violations. Most observers have an almost knee-jerk reflex to consider the problem from the standpoint of international humanitarian law rather than human rights law. While the commission also looks at the law of armed conflict, concluding that the fourth Geneva Convention is relevant, its main thrust is to use the International Covenant on Civil and Political Rights. It finds violations of articles 6 (right to life), 7 (prohibition of torture) and 10(1) (humane conditions of detention) of the Covenant.

The substance of the violations does not seem to me to be very controversial. In essence, the commission finds that

throughout the operation to seize control of the Mavi Marmara, including before the live fire restriction was eased, lethal force was employed by the Israeli soldiers in a widespread and arbitrary manner which caused an unnecessarily large number of persons to be killed or seriously injured. Less extreme means could have been employed in nearly all instances of the Israeli operation, since there was no imminent threat to soldiers; for example in relation to the operation to move down to the bridge deck and seize control of the ship and the firing of live ammunition at passengers on the bow deck of the ship. Even in a situation where three individual soldiers have been injured and detained, the objective of freeing these soldiers does not legitimate the use of force outside applicable international standards and soldiers must continue to respect and preserve life and to minimize injury and damage. (para. 167)

… A well-trained force such as the Israeli Defence Force should have been able to successfully contain a relatively small group of passengers armed with sticks and knives and secure control of the ship without the loss of life or serious injury to either passengers or soldiers. (para. 168)

…

The Mission is satisfied that much of the force used by the Israeli soldiers on board the Mavi Marmara and from the helicopters was unnecessary, disproportionate, excessive and inappropriate and resulted in the wholly avoidable killing and maiming of a large number of civilian passengers. On the basis of the forensic and firearm evidence, at least six of the killings can be characterised as extra-legal, arbitrary and summary executions. As such, the conduct of the Israeli forces amounted to violations of the right to life and of the right to physical integrity, as stipulated in articles 6 and 7 of the International Covenant on Civil and Political Rights. (para. 172)

This holding is similar to the case law of the European Court of Human Rights in decisions like McCann et al. v. United Kingdom.

More challenging, however, is the actual application of the Covenant to ships on the high seas. The commission report is, to my knowledge, the first time there has ever been a finding that a state has violated its international human rights obligations by conduct on the high seas. If readers know of any previous examples, please inform the blog.

Similarities with the Bankovic case at the European Court of Human Rights present themselves. There, of course, the European Court declined jurisdiction because it said the European NATO powers did not actual control the territory of Serbia at the time of the bombing in 1999. The Court distinguished this from Loizidou v. Turkey, where Turkey actually had control over occupied northern Cyprus.

The high seas – international waters – are not anyone’s territory, but of course the ships themselves may be deemed to be the territory of the flag state. Thus, Israel’s conduct on the Mavi Marmara can be said to have been on Turkish territory. Here, too, I am not aware of any precedent for a conclusion that a state violates article 6 of the Covenant by a killing on the territory of another state, but perhaps readers of the blog know of examples that I have not considered.

The reliance upon human rights law is also of great interest in that the commission seems to depart from the reasoning of the International Court of Justice. The report cites the relevant decisions, including Nuclear Weapons and The Wall, where the Court’s famous lex specialis doctrine is set out to describe how article 6 of the Covenant actually applies in armed conflict. I think that the commission is quite plainly at variance with the position of the Court, in that it takes the view that we can understand ‘arbitrary’ deprivation of the right to life within the context of armed conflict purely from the perspective of international human rights law. In the commission report, the analysis relies strictly upon the proportionality of the use of force. But surely the members of the commission are not suggesting that during armed conflict, soldiers can only use the minimum amount of force necessary to subdue their opponents, and that they must use tasers or rubber bullets rather than real guns if this will do the job?

I guess the commissioners would answer that they are dealing with protected persons under the fourth Geneva Convention, so the rules are different. But if that is the case, why do we need article 6 of the Covenant at all? They conclude that the passengers on the ships were protected persons in accordance with the fourth Geneva Convention (para. 66). Here, too, I think this must be an innovation. The victims were considered to be protected persons although they were on the territory of a third state, Turkey, and on the high seas.

The commission also makes statements about the legality of the Israeli blockade. This was, after all, at the origin of the incident. The report refers to article 33 of the fourth Geneva Convention, which prohibits collective punishments. (para. 60). There has been some debate as to whether Gaza can even be considered an occupied territory. The commission says that it can, because Israel has ‘effective control’ (para. 69). The report holds that because the blockade itself was not lawful, the interception was unlawful too:

The Mission considers that one of the principal motives behind the imposition of the blockade was a desire to punish the people of the Gaza Strip for having elected Hamas. (para. 54)

… the Mission is satisfied not only that the flotilla presented no imminent threat but that the interception was motivated by concerns about the possible propaganda victory that might be claimed by the organizers of the flotilla. (para. 57)

…

it is clear that there was no reasonable suspicion that the Flotilla posed any military risk of itself. As a result, no case could be made to intercept the vessels in the exercise of belligerent rights or Article 51 self-defence. Thus, no case can be made for the legality of the interception and the Mission therefore finds that the interception was illegal. (para. 58)

Of course, it is not necessary to reach any conclusion about the lawfulness of the interception in order to find that there were violations of human rights law because of excessive use of force directed against protected persons. Even if Israel had been acting lawfully, it seems to me that the conclusion would be the same.

Unlike the Goldstone Report, this latest report does not consider the issue of jurisdiction of the International Criminal Court. Back in June, I speculated on on this blog about how the Court might actually intervene in the situation, noting the possibility of Turkey making a declaration in accordance with article 12(3) of the Rome Statute. Several readers wrote challenging the proposition that any crimes within the jurisdiction of the Court had been committed. The recent report confirms that there are reasonable grounds to conclude that a number of war crimes were committed.

Thus, it might be useful to put the suggestion of a Turkish declaration in accordance with article 12(3) of the Rome Statute back on the table. Blowhard politicians in Turkey who are making so much of the 31 May incident might address this issue, and call for their government to make a declaration.

There may be a link with the Court’s jurisdiction because the attack was also directed against a ship with a Greek flag, the Eleftheri Mesogios. According to article 12(2) of the Rome Statute, the Court may exercise jurisdiction ‘if the crime was committed on board a vessel or aircraft’ to the extent that ‘the State of registration of that vessel or aircraft’ is a State party. And Greece is a State party. That just leaves us with the problem of how the jurisdiction must be triggered. Greece could make a ‘self-referral’. Or any other State party could make a referral, under article 14. Or the Prosecutor could ask the Pre-Trial Chamber for authorization to initiate an investigation, as he did recently in Kenya.

The gravity of the attack on the Greek ship is probably at the low end of the scale. But it is part of a situation that is exceedingly grave: the decades-long occupation of territory, the denial to a people of their right to self-determination, the loss of life of perhaps 1,000 civilians in December 2008-January 2009 alone, ande of many more over the years. This is the issue of ‘situational gravity’, as opposed to ‘case gravity’. If we opt for ‘situational gravity’, then the Prosecutor has his work cut out for himself.

African Regional Committee on Genocide Established

For the past two days, I have been attending the founding meeting, in Kampala, Uganda, of the Regional Committee for the Prevention and Punishment of the Crime of Genocide, War Crimes and Crimes Against Humanity and All forms of Discrimination. The region is Great Lakes Africa. There are eleven member States, of whom eight sent representatives: Democratic Republic of the Congo, Congo (Brazzaville), Kenya, Burundi, Rwanda, Central African Republic, Sudan and Tanzania.

Yesterday, Professor Frank Chalk and myself, together with Norul Rachid and Castro Wesamba of the Office of the Special Adviser on the Prevention of Genocide, delivered a seminar entitled ‘A Framework for Genocide Prevention’. See the photo, from left, Castro, myself, Norul and Frank.

Today, the Committee adopted its Rules of Procedure and an action plan, and it elected its Bureau. The Committee agreed by consensus that Ambassador Balthazar Habonimana of Burundi shall be the President. The vice-president is Emily Chweya from Kenya and the rapporteur is Lucien Yaliki from the Central African Republic. The seat of the Committee will be Bujumbura, Burundi.

The Committee’s establishment is mandated by the Protocol for the Prevention and the Punishment of the Crime of Genocide, War Crimes and Crimes Against Humanity and all forms of Discrimination. It was adopted on 29 November 2006 by the International Conference on the Great Lakes Region. The Protocol completes article 8 of the Pact on Security, Stability and Development in  the Great Lakes Region, adopted in December 2006. It says:

Article 8

Protocol for the Prevention and the Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all forms of Discrimination

The Member States, in accordance with the Protocol on the Prevention and the Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all forms of Discrimination, recognize that the crime of genocide, war crimes, and crimes against humanity are crimes under international law and against the rights of peoples, and undertake in particular:

a) To refrain from, prevent and punish, such crimes;

b) To condemn and eliminate all forms of discrimination and discriminatory practices;

c) To ensure the strict observance of this undertaking by all national, regional and local public authorities and institutions;

d) To proscribe all propaganda and all organisations which are inspired by ideas or theories based on the superiority of a race or a group of people of a particular ethnic origin, or which try to justify or encourage any form of ethnic, religious, racial or gender based hatred or discrimination.

I made a passing reference to this in the 2^nd edition of my book Genocide in International Law (at p. 477), but now it certainly deserves a more ample treatment.

At today’s meeting, Professor Andrea Bartoli, of George Mason University, who is also in attendance, spoke of the historic significance of the creation of the Committee. For many years, the absence of a committee or treaty body to monitor enforcement of the Genocide Convention has been lamented. In a sense, establishment of the position of Special Adviser on the Prevention of Genocide was a step in this direction. Now we have a full-fledged Committee. And though it has limited geographic scope, it is in an important region, one which has known genocide in the past and where the concerns about prevention are palpable and genuine.

Each of the member States is expected to create a national committee on genocide prevention. The aim of the work plan is to set up five such committees within the next year or so.

There are some other important components in the activities of the International Conference on the Great Lakes Region. A regional observatory for human rights is currently being established in Lusaka. Its funding comes from the UN Voluntary Fund for Technical Cooperation in Human Rights. The Office of the High Commissioner for Human Rights has played a central role in organizing and coordinating these activities.

War Don Don

War Don Don, a film about the trial of Issa Sesay before the Special Court for Sierra Leone, will be broadcast at 8PM ET/PT on 29 September 2010 on HBO2 in the United States and on an associated network in Canada. This fascinating study of the trial, and of the Court, includes interviews with prosecutors and defence counsel, and we even see the accused himself. I’ve watched it twice, in The Hague in June with students at Leiden University and more recently at Chautauqua in late August in the presence of several prosecutors, including David Crane, formerly Prosecutor of the Special Court. Several of the prosecutors said it was the best film they had seen dealing with international criminal tribunals.

This still, from the film, shows defence counsel Wayne Jordash, left, and Prosecutor Steve Rapp doing an interview on UN Radio after the judgment was issued.


I wouldn’t take the praise of the prosecutors as an indication that it is one-sided, however. Sesay’s British lead counsel, Wayne Jordash, is presented in a very sympathetic light, as is Sesay’s own case for consideration of his role in the peace process as a mitigating factor in sentencing. My impression is that despite their praise, several of the prosecutors were a bit uneasy with the film. They weren’t confident that it didn’t tip too far in the direction of the defence.

That’s the beauty of the film, of course. It presents both sides in a fair manner without being judgmental, and that means that different individuals may react differently to what it shows.

Last week while visiting New York City I had a beer with the filmmaker, Rebecca Richman Cohen. She is a trained lawyer and actually worked at the Special Court for Sierra Leone as an intern some years ago, a fact that certainly contributed to her interest in the subject. I don’t know how good a lawyer she is, but I sure hope she stays in cinema because she is a very fine artist. She told me she is now working on a film on the use of medical marijuana in Montana, a wonderfully alliterative idea.

Personally, I remain troubled by the sentences that were imposed by the judgment (and upheld on appeal), and I had the impression that Rebecca does too. Sesay really got nothing in mitigation, receiving several concurrent sentences of which the highest is 52 years. The reasoning is not adequately explained in the sentencing judgment, which was upheld on appeal. The judgment condemns him to 35 years of extermination, 40 years for murder, 45 years for rape and 50 years for recruitment of child soldiers. Does that make any sense? I would have thought extermination was worse than murder, given that it involves multiple murders, and that both are more important than recruiting child soldiers. Nothing in the reasons helps to understand this. One might have thought that this was because of particular brutality or horror in specific acts perpetrated by Sesay. But he is convicted, essentially, as a leader and not a direct perpetrator, so that cannot provide an explanation.

The film will become available for public and institutional screenings later in the year, and will be released for purchase in DVD at the end of 2010. It has already won some awards, and was shown in the Human Rights Watch film festival.

New Twists in the Lubanga Trial at the International Criminal Court

Two months ago, Trial Chamber I ordered a stay of proceedings in the Lubanga case. The Prosecutor appealed, and we are all waiting for the next development. A few days ago, the Prosecution filed a motion requesting permission from the Trial Chamber to continue to take testimony while the stay of proceedings is in place. This interesting report on developments is contributed by Niamh Hayes:

The motion indicates that the Prosecution contacted the Defence on September 13 and offered to disclose the identity of Intermediary 143. The stay of proceedings was initially imposed as a result of the Prosecution's refusal to follow a number of orders from Trial Chamber I to disclose the intermediary's identity. The Prosecution's sudden willingness to comply may be explained by the fact that Trial Chamber II had ordered the Victims and Witnesses Unit to implement full protective measures for the intermediary, as the Prosecution has repeatedly claimed in its appeal filings that it merely wanted to ensure that Intermediary 143 would not be put at risk by disclosure in the absence of full protective measures. However, both Trial Chamber I and the Victims and Witnesses Unit were satisfied in July that the limited disclosure ordered would not entail any additional risk to the safety of Intermediary 143. 

It seems likely that there are two motivations for the Prosecution's offer to release the identity of Intermediary 143 at this point. The first is to provide a reasonable basis for the Appeals Chamber to lift the stay of proceedings and reverse the order for Lubanga's release. Although the Prosecution motion acknowledges that 'disclosing the identity of Intermediary 143 does not resolve the concerns that triggered the order to stay proceedings', it does amount to (belated) compliance with the Trial Chamber's orders. The issue being appealed is whether a fair trial is possible in circumstances where the Prosecutor refuses to obey the authority of the Trial Chamber, rather than whether the Trial Chamber was correct in ordering the disclosure of Intermediary 143's identity, and it would be difficult to envisage the Appeals Chamber not deciding in favour of the Trial Chamber's interpretation of the importance of judicial authority. However, no-one at the Court wants to see this case ending over such a frustratingly petty issue. This could potentially allow the Appeals Chamber to conclude that the conflict giving rise to the stay of proceedings has been resolved and to resurrect the prosecution against Lubanga once again, probably along with a stern warning about the importance of compliance with all future orders of the Trial Chamber. However, it's also worth noting the second motivation for the Prosecution's offer to disclose. Trial Chamber II has been in contact with the Victims and Witnesses Unit in relation to Intermediary 143 on the basis of a defence request from Katanga and Ngudjolo, who are also seeking the intermediary's identity. The order to implement full protective measures is a precursor to an order from Trial Chamber II to disclose the identity of the intermediary to the Katanga and Ngudjolo defence teams. That would put the Prosecution in an immensely difficult position - to refuse could potentially put a second case in peril, but to comply would appear entirely illogical given the Prosecutor's absolute insistence on refusing to follow an almost identical disclosure order from Trial Chamber I, despite the gravity of the consequences for that case. The explanation for this development may be as simple as the presence of protective measures for the intermediary, but it remains to be seen whether the Appeals Chamber is willing to seize on the offer of disclosure to put an end to another embarrassing chapter in the Court's history.

Flotilla Inquiry Concludes Israel Violated International Law

Yesterday, the fact-finding commission appointed by the Human Rights Council to investigate the attack by Israeli forces on the humanitarian aid flotilla issued its report, which is available on the website of the Human Rights Council. According to the summary, 'The fact-finding mission concluded that a series of violations of international law, including international humanitarian and human rights law, were committed by the Israeli forces during the interception of the flotilla and during the detention of passengers in Israel prior to deportation.'

Follow Up to Goldstone Report

The UN Committee of Independent Experts monitoring and assessing investigations into serious violations of International Humanitarian and Human Rights Laws during the Gaza conflict has issued its report on the efforts undertaken by the state of Israel and the Palestinian side.

According to the chair of the Committee, human rights expert Prof. Christian Tomuschat, investigations by both Israel and Hamas  'remain incomplete in some cases or fall significantly short of meeting international standards in others'. This is the follow up to the Goldstone Report, which appeared last year, in which important allegations of violations of international law were set out.

'A lack of cooperation from Israel has hampered the Committee’s assessment of investigations into serious violations of war crimes', Prof. Tomuschat said. 'Israel has published a lot of information on their investigations, but its refusal to cooperate with the Committee made it impossible to assess whether inquiries met international standards' of independence, impartiality, thoroughness and effectiveness, genuineness, promptness, and transparency.

'Israel conducted investigations into many incidents, but only four resulted in criminal indictments, one of which led to a conviction for a credit card theft', Prof. Tomuschat noted.

Bad News for Alien Torts

The 2nd Circuit Court of Appeals (Connecticut, New York and Vermont) has rejected the theory that corporations can be held liable in the United States under the Alien Tort Statute for violations of international law in foreign countries. Dismissing the application in Kiobel v. Royal Dutch Petroleum, charging aiding and abetting human rights violations during oil exploration in Nigeria, the court declared that ‘corporate liability is not a discernible -- much less universally recognized -- norm of customary international law that we may apply pursuant to ATS (Alien Tort Statute)’. It held that under U.S. Supreme Court precedent, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and the 2nd Circuit's own precedents over the past thirty years, ‘in ATS suits alleging violations of customary international law, the scope of liability -- who is liable for what -- is determined by customary international law itself’.

‘Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of the State inter se, and because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights’, wrote Justice Cabranes for the majority, the court lacks jurisdiction under the Alien Tort Statute.

Dissent Judge Pierre Leval wrote: ‘The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights… According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims' claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form.

There is already some comment on the case on Opinio Juris.

Thanks to Eva Shemmayah Heza

Excitement on Plane for Entebbe

I am in Entebbe, Uganda, participating in a series of seminars organized by the UN Special Advisor on the Prevention of Genocide. Yesterday morning, as we were about to take off on the KLM plane at Schipol airport in Amsterdam, there was some excitement. I was sitting right by the door, and minutes before we were to take off a number of black-suited security people with automatic rifles rushed onto the plane amd wemt towards the back. A few minutes later, they walked out with a well-dressed man who is now, according to the newspapers, a suspected Somali terrorist. I had my reliable Iphone with me, but didn't think quickly enough and as a result don't have a photograph, alas. We were later taken off the plane so that everything could be searched. We arrived late last night in Uganda, two hours behind schedule.
Being a human rights lawyer has its occasional thrills!

Bulletin of Irish Centre for Human Rights

The latest edition of the Bulletin of the Irish Centre for Human Rights is now available on our website.

Bashir in Kenya

Max DuPlessis and Christ Gevers have written a thoughtful article on the visit by President Bashir of Sudan to Kenya, and the failure of the authorities to enforce the arrest warrant issued by the International Criminal Court.

Michael D. Higgins is Candidate for Presidency of Ireland

Amongst his many distinctions and accomplishments, Michael D. Higgins TD is an adjunct professor at the Irish Centre for Human Rights. Yesterday, Michael announced that he is seeking the nomination of the Labour Party for the Irish Presidency. He has given several interviews is which the elements of his unique candidacy are set out, including a piece in yesterday's local paper, the Galway Advertiser. Here is an excerpt:

Dep Higgins has always been an outspoken member of Dáil Éireann, speaking continually in favour of human rights, on Israel/Palestine, and in opposition to the so called ‘war on terror’. The President of Ireland, despite being the highest political honour and post in the State, is ironically meant to be ‘above’ politics, and is constrained in what s/he can say.

Given his passion for human rights and interest in international affairs, Dep Higgins is not someone who would be able to remain silent on such issues, or be blandly, and inoffensively neutral.

As such a Michael D presidency would be an ‘active presidency’, but does the role allow for that?

“I have looked in detail at the role of the president and there is scope within it to address issues such as in the area of culture, human rights, the future of Ireland,” he says, “and with my background in political science, I know what the role entails as well.

“I am an adjunct Professor at the school of Human Rights in NUI, Galway and there are many ways in which such issues can raised. I will be able to give my emphasis and analysis and offer people intellectual options to help break the cycle of fatalism.”

Best of luck, Michael

Photo credit Pa Dinneen: http://www.photoblog.ie 

Ombudsperson

The United Nations Security Council has established an Ombudsperson, who is responsible for dealing with issues that arise as a result of the blacklists and freezing orders imposed by the Security Council as part of its counter-terrorism activities. I had dinner last night in New York with the office holder, Kimberly Prost, who was recently an ad litem judge of the International Criminal Tribunal for the former Yugoslavia.  There, she participated in the recent Popovic decision, which by the way has some interesting bits about genocide.
The Ombudsperson is a fascinating new mechanism that certainly deserves an LLM dissertation and a law review article. It is a response to the lack of any form of judicial or quasi-judicial control over the actions of the Security Council, which may have devastating consequences for human rights. The Council can - and has - imposed travel bans and frozen bank accounts on individuals. When they learn of this - often by accident, when they arrive at an airport and try to use a credit card to buy a plane ticket - they learn that there is no real judicial recourse. The measures have shocked judges at the national and international levels. There is a recent article on this by Gráinne de Búrca in the European Journal of International Law ((2009) 20 EJIL 853) that provides all of the relevant references.
The mechanism of an Ombudsperson isn't adequate, in my opinion, but it is certainly a great improvement on what previously existed. The work of the Ombudsperson will necessarily involve a lot of confidential activity. It will be a real challenge for researchers to see how much we can learn about her activities.

Contempt Ruling by Extraordinary Chambers of the Courts of Cambodia

Here is a recent decision by the Extraordinary Chambers of the Courts of Cambodia. The bench splits, with the international judges voting one way and the national judges voting the other way. It is on a defence motion calling for an investigation into government interference.
Thanks to Robert Petit.

'Double Genocide' in Lithuania

Yesterday's Guardian had an interesting column by Jonathan Freedland on the so-called 'double genocide' in Lithuania during and after the Second World War. It is a useful contribution to the discussions about moral equivalence, and the tendency to a broad use of the word 'genocide' with the consequence that it diminishes the horror and stigma of real genocides.

Ireland Condemned by Grand Chamber of European Court of Human Rights for Fair Trial Violation

Today, the Grand Chamber of the European Court of Human Rights ruled against Ireland in a case involving unreasonable delay in a criminal prosecution: Here is the Court's press release in McFarland v. Ireland (for the full decision, click here):

Principal facts

The applicant, Brendan McFarlane, is an Irish national who was born in 1951 and lives in Belfast. The case concerned unjustified delays in the criminal proceedings brought against him for offences allegedly committed in 1983, of which he was acquitted in 2008.

In January 1998 Mr McFarlane was released on parole after serving a prison sentence in Northern Ireland for his involvement in a bombing in the 1970s for which the IRA (Irish Republican Army) was found to be responsible. A few days after his release, he was arrested and detained by the Irish police and subsequently charged by the Special Criminal Court (SCC) in Dublin with false imprisonment and the unlawful possession of firearms, offences he was alleged to have committed in 1983 when he had escaped from prison. On 13 January 1998 he was released on bail, subject to reporting restrictions

Mr McFarlane brought judicial review proceedings with regard to his prosecution, claiming that the delay in bringing criminal proceedings against him had prejudiced his chance of having a fair trial and that the failure of the prosecuting authorities to maintain and have available for inspection certain items of evidence (such as fingerprints) had limited his ability to fully contest the nature and strength of the evidence to be introduced at his trial. His claims regarding the delay in bringing proceedings were eventually dismissed by the Supreme Court in 2006, finding that the decision when to prosecute clearly rested with the prosecuting authorities. With regard to the loss of evidence, the Supreme Court concluded that the trial court deciding on the case would have to assess whether there was any unfairness for which the prosecution was responsible. A further application to prohibit the prosecution on grounds of delay was dismissed in January 2008. During the criminal proceedings against him, Mr McFarlane reported to the SCC some 40 times, a round trip to and from his home of 320 km. He was finally acquitted in June 2008.

Complaints, procedure and composition of the Court

The applicant complained: under Article 6§1, that the Irish authorities delayed bringing and proceeding with the criminal proceedings against him; under Article 6§3(d), that, as a result of the delay, key prosecution evidence was lost and that there was a lack of evidence against him other than questionable police interviews; under Article 8§2 (right to respect for private and family life), that his arrest and detention amounted to a deliberate and disproportionate interference with his private and family life; and, under Article 13, that there was no effective remedy under Irish law for his grievances, particularly concerning the length of the proceedings.

The application was lodged with the European Court of Human Rights on 21 July 2006.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Decision of the Court

Article 13

The Court did not find effective any of the domestic remedies proposed by the Irish Government.

Concerning the first and main remedy proposed – an action for damages for a breach of the constitutional right to reasonable expedition – the Court found that there was significant uncertainty as to its availability.

While it had been available in theory for almost 25 years, it had never been invoked. The development and availability of a remedy said to exist, including its scope and application, had to be clearly set out and confirmed or complemented by practice or case law, even in the context of a common law inspired system with a written constitution providing an implicit right to trial within a reasonable period of time (as in Ireland).

The Court also considered that it had not been demonstrated that such an action could constitute a remedy as regards a judge’s delay in delivering a judgment. Moreover, the fact that the proposed constitutional remedy would form part of the High and Supreme Court body of civil litigation, for which no specific and streamlined procedures had been developed, meant that it would amount to a legally and procedurally complex constitutional action for damages in the High Court, with a likely appeal to the Supreme Court which, at least at the outset, would present some legal novelty. Two problems ensued: the time such proceedings could take (possibly several years) and the potentially high legal costs and expenses involved in taking such an action.

As to the remaining remedies proposed by the Irish Government, the Court found an action for damages under the European Convention of Human Rights Act 2003 ineffective since, among other things, it appeared that any delay attributable to “the courts” was not actionable under that Act and since the 2003 Act did not enter into force until 31 December 2003, by which time the applicant’s proceedings had been ongoing for almost six years (the 2003 Act is not retroactive). An application for a prohibition order by reason of prejudice and real risk of unfair trial due to delay was substantively different from, and not effective as regards, a complaint about unreasonable delay within the meaning of Article 6 § 1.

The Court therefore concluded that the Government had not demonstrated that any of the remedies proposed by them constituted effective remedies available to the applicant in theory and in practice at the relevant time. Accordingly, there had been a violation of Article 13, in conjunction with Article 6 § 1.

Article 6 § 1

The Court considered that the criminal proceedings against the applicant had lasted over 10 years and six months, from the applicant’s arrest on 5 January 1998 to his acquittal on 28 June 2008.

While the conduct of the applicant had contributed somewhat to the delay, it did not explain the overall length of the proceedings against him. On the other hand, the Government had not provided convincing explanations for certain delays attributable to the authorities, which added to the overall length of the criminal proceedings.

As to what was at stake for the applicant, the charges against him were serious and he bore the weight of such charges and of the potential sentences, for approximately 10 years and six months, during which time he had reporting obligations and was frequently required to appear in Dublin before the SCC.

The Court concluded that the overall length of the criminal proceedings against the applicant were excessive, in violation of Article 6 § 1.

We'll discuss this at the next PhD student seminar, scheduled for 28 September at 17h00 in my office.

Judge Hans-Peter Kaul on the Crime of Aggression

This has been on the website of the International Criminal Court for a few days already, but only came to my attention today. Judge Hans-Peter Kaul delivered a marvellous keynote address on the crime of aggression at the Chautauqua Humanitarian Law Dialogues last week. Here is a picture of him, in a more relaxed mode, after our dinner cruise on the lake.

Selecting Judges for International Criminal Tribunals

Today's Guardian has an interesting article on the selection of international judges. The Rome Statute makes very elaborate provision for the selection of judges but ultimately the process is at the mercy of the States Parties who nominate them. At the European Court of Human Rights, States must nominate three judges, who are then interviewed and a candidate is chosen by the Parliamentary Assembly. Andrew Drzemczewski  recently sent me an article he has published on the subject.
I was never so troubled about the fact that the first Japanese judge didn't have a law degree. She had many years of experience in the field of human rights law. The fact that she had not taken courses in tax law and divorce law didn't seem to me to be an obstacle to being a good judge. Many people with law degrees have never studied public international law, or international criminal law, or international humanitarian law. Is a law degree such an important qualification?
The Rome Statute provides for two categories of judges, those with criminal trial experience and those with and international law background. I think that it exaggerates the importance of  international law in the work of international criminal judges. If all of the judgments of all of the international criminal tribunals is put together, we end up with many rather perfunctory references to article 31 of the Vienna Convention on the Law of Treaties and not much more. The word on the street is that this was injected in the Statute in order to provide an entry point for diplomats. Yet some diplomats have been find judges at the Court.
The danger is that in over-regulating the selection process we will exclude very fine people who will make very fine judges. We will develop career profiles that are believed to identify ideal judges, and dismiss the candidacies of others who do not have these. I doubt that is a good idea.
Actually, the more mysterious process is the appointment of the Prosecutor of the International Criminal Court. The first Prosecutor was elected by acclamation, as he was the only candidate. There had been back-room negotiations and he was the result. The same process looks likely with respect to the next Prosecutor, who must be chosen by early 2012. Not only is the process opaque, we do not have any agreement on the qualifications of the ideal prosecutor. I'm struck by the fact that among the best prosecutors at the international level - I'm thinking of Richard Goldstone, Louise Arbour, and Robert Jackson - we have people who were judges without significant prosecutorial experience. Perhaps we should be looking for the next Prosecutor on the bench, maybe among judges as the International Criminal Tribunal for the former Yugoslavia or one of the other tribunals.

Cinema and the Universal Declaration of Human Rights

We are in the midst of our summer course on Cinema, Human Rights and Advocacy, which is organized jointly by the Irish Centre for Human Rights and the Huston Film School. My part in the programme is a presentation on the Universal Declaration of Human Rights using films to illustrate its content. The films I use are, of course, a personal choice, and are influenced by my own background, interests and idiosyncrasies. Really, the films provide talking points for a discussion about the substantive rights. The 60-slide presentation uses still photos and posters of the films. One day, I'll figure out the technology enough so that I can use short clips from the films too. Here is the presentation.