Lemkin, Adoption of Genocide Convention, on Youtube

For a short clip showing a brief interview with Raphael Lemkin, who invented the word 'genocide', and a scene from the adoption of the Genocide Convention by the General Assembly in 1948, click here.

African Union Amendment to Article 16 of Rome Statute Analysed

A very fine and detailed study on the African Union proposal to amend article 16 of the Rome Statute has been published by the South African Institute for Security Studies. It is authored by three distinguished scholars: Dapo Akande, Max du Plessis and Charles Chernor Jalloh. The authors explain that their work was informed by an expert group (to which I belong), although it does not suggest that the experts agree with everything in the report. I certainly agree with most of it.
Following the Prosecutor's announcement that he was seeking an arrest warrant against the President of Sudan, Omar Al Bashir, the AU sought to halt this proceeding using the only mechanism available under the Rome Statute: article 16. The provision allows the Security Council to suspend prosecutions for one year, although this is renewable. The AU request did not find sufficient support in the Security Council. In particular, the United States, which has now become the Court's greatest friend, indicated that it was opposed and that if things came to a vote it could exercise its veto.
Subsequently, the AU proposed to amend article 16 in order to allow the General Assembly, as well as the Security Council, to request that Court proceedings be suspended. The amendment was tabled last year before the Assembly of States Parties but had insufficient support to make it onto the agenda of the Kampala Review Conference.
Some think that the warming of the United States towards the Court is due to the election of President Obama. Actually it began much earlier. The real starting point for the change in the United States position was about when the Court began to go after Sudan, in March 2005. Support for the Court has become a 'zero sum game'. The more the United States likes the Court, the cooler Africa gets. Africa's declining enthusiasm for the Court has been manifested in a number of ways, including the refusal of certain ICC member states to comply with the Al Bashir arrest warrant. Africa's tension with the Court is profoundly troubling.
This report, written by three Africans, addresses the African concerns with great understanding and sympathy. It concludes that the legal obstacles to the proposed amendment to article 16 are actually not so serious. The real problem is political. The report suggests there will not be sufficient support among members of the Court. I think that getting general support within the United Nations, or within the States Parties to the Court, is probably not such an obstacle. After all, article 16 was not exactly a careful, balanced attempt to address the relationship between peace and justice. Rather, it was a nasty compromise with the five permanent members of the Security Council, who thought (and probably still think) that in any case the Security Council has the power to stop the Court at any time, even permanently. The real problem with amending article 16 is the permanent five.
It is often said that involving the General Assembly in deferral of prosecution would only 'further politicise' the Court. But it is already politicised. I don't see why making the politicisation of the Court more democratic, by involving the General Assembly, aggravates a problem. In that sense, the African Union proposal makes fine sense. The heart of the matter, I think, is that there is indeed a role for political considerations in the identification of situations for prosecution before the Court, and in decisions to defer prosecution. It is problematic that these decisions are essentially the remit of a single individual, the Prosecutor of the Court. Leaving the Security Council as the only body able to bring such political considerations to bear is also unacceptable, for obvious reasons.
The African Union has probably not found the answer to this conundrum, but its amendment helps in the discussion about how to relate political considerations to choices about prosecution. The current mantra that suggests the Prosecutor is 'independent' and indifferent to political matters doesn't make sense and doesn't correspond to reality. Like all of us, he has his own views about the world and they are reflected in the determinations that he makes. But many continue to promote the fiction that the Prosecutor is guided only by judicial criteria, such as the mysterious, enigmatic concept of 'gravity'.
There is a section in the report about impunity in Sudan. It seems accurate enough, except I tend to think it is beside the point. We can all agree that impunity in Sudan needs to be addressed, yet we must also bear in mind the importance of ending existing conflicts and preventing new ones in that unhappy country. African political leaders seem in broad agreement that prosecuting Al Bashir at this sensitive point, with a referendum on the breakup of the country only weeks away, will do more harm than good. Their views are largely dismissed by what I will call the 'international justice community'. Personally, I am inclined to think that the views of African political leaders are extremely important. I would trade a prosecution of Al Bashir for the promise of peace in Sudan in a heartbeat.

Moscow Ban on Gay Pride March Violates European Convention on Human Rights

In Alekseyev v. Russia, 21 October 2010, a Chamber of the European Court of Human Rights held that Russia had violated the right to freedom of peaceful assembly (article 11 of the European Convention) by imposing a ban on Gay Pride marches in 2006, 2007 and 2008.

Moscow authorities had justified the ban because there had been opposition and even threats of violence from certain religious extremists. According to the Court,

the Government failed to carry out an adequate assessment of the risk to the safety of the participants in the events and to public order. It reiterates that if every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority opinion (para. 77).

The Court noted that the mayor of Moscow had frequently expressed his determination to prevent gay parades and similar events from taking place, apparently because he considered them inappropriate. Also, Russia’s observations before the Court said ‘such events should be banned as a matter of principle, because propaganda promoting homosexuality was incompatible with religious doctrines and the moral values of the majority, and could be harmful if seen by children or vulnerable adults’. The Court said ‘these reasons do not constitute grounds under domestic law for banning or otherwise restricting a public event’ (para. 79). It said ‘it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority’ (art. 81).

Responding to Russia’s claim that it had a ‘margin of appreciation’ on such matters, which were not subject to a European consensus, the Court explained:

There is ample case-law reflecting a long-standing European consensus on such matters as abolition of criminal liability for homosexual relations between adults (see Dudgeon, cited above; Norris v. Ireland, 26 October 1988, Series A no. 142; and Modinos v. Cyprus, 22 April 1993, Series A no. 259), homosexuals’ access to service in the armed forces (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, ECHR 1999-VI), the granting of parental rights (see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, ECHR 1999-IX), equality in tax matters and the right to succeed to the deceased partner’s tenancy (see Karner v. Austria, no. 40016/98, ECHR 2003-IX); more recent examples include equal ages of consent under criminal law for heterosexual and homosexual acts (see L. and V. v. Austria, nos. 39392/98 and 39829/98, ECHR 2003-I). At the same time, there remain issues where no European consensus has been reached, such as granting permission to same-sex couples to adopt a child (see Fretté v. France, no. 36515/97, ECHR 2002-I, and E.B. v. France [GC], no. 43546/02, ECHR 2008‑...) and the right to marry, and the Court has confirmed the domestic authorities’ wide margin of appreciation in respect of those issues.

The Court added that even if there was no European Consensus, this was no relevant, ‘because conferring substantive rights on homosexual persons is fundamentally different from recognising their right to campaign for such rights’ (para. 84).

The Court also said:

There is no scientific evidence or sociological data at the Court’s disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities’ social status, would adversely affect children or “vulnerable adults”. On the contrary, it is only through fair and public debate that society may address such complex issues as the one raised in the present case. Such debate, backed up by academic research, would benefit social cohesion by ensuring that representatives of all views are heard, including the individuals concerned. It would also clarify some common points of confusion, such as whether a person may be educated or enticed into or out of homosexuality, or opt into or out of it voluntarily. (para. 86)

Winter School on Rights of Migrants

The University of Bologna is hosting a winter school on the European Convention of Human Rights and the rights of migrants, from 10 to 14 January 2011. For information, click here.

European Court Considering CIA Rendition

The European Court of Human Rights is considering a case involving the extraordinary rendition programme operated by the CIA. The case involves A german citizen, Khaled El-Masri, and is filed against Macedonia.
According to the Justice Initiative of the Open Society Institute, in December 2003  Macedonian security forces seized Khaled El-Masri at the request of the United States and held him—incommunicado—for 23 days. El-Masri was then handed over to the CIA and flown to a detention center in Kabul, Afghanistan, where he was confined in appalling conditions, interrogated, and abused. After several months, El-Masri was finally released and dumped on a roadside in Albania.
The case has been ‘communicated’, a very preliminary stage but one that most applications to the European Court do not surmount. Macedonia must answer specific questions about the application by El-Masri. Next, the Court will consider whether to actually hear the case. The Justice Initiative explains:

With this case, the European Court has gone beyond the U.S. judiciary in responding to the torture and abuse associated with unlawful rendition. In 2007, the U.S. Supreme Court declined to revisit an appellate court’s ruling that the state secrets privilege required dismissal of El-Masri’s case. The U.S. has never publicly acknowledged rendering El-Masri. Despite overwhelming evidence of its collaboration, to date Macedonia has also denied that El-Masri was detained illegally on its territory or handed over to the CIA.

National investigations related to El-Masri’s rendition are said to be ongoing in Germany and Spain. Poland, Lithuania, and the UK are also engaged in investigations about extraordinary rendition more broadly.

Death Penalty Resolution at the General Assembly

After a one-year gap, the death penalty resolution is back on the agenda of the United Nations General Assembly. I've reported in past years on the successful resolutions - the first in 2007 and the second a year later, with an ever-so-slightly greater majority. Now we're back to, in a sense, take the temperature of the United Nations member states on the issue.
As the recent report of the Secretary-General indicates, the momentum towards reduction of the death penalty (for retentionist states) and full abolition continues without interruption. (By the way, for Chinese readers, here is the report of the Secretary-General in Chinese). Therefore, one should expect the resolution to meet with similar success as in past years. Again, there ought to be a slightly greater majority.
Of interest will be the energy that certain retentionist states devote to fighting the resolution. In the past, the political battle has been led by States like Egypt and Singapore. But the recent report of the Secretary-General indicates that in practice, the use of the death penalty in these States is declining. Attitudes must therefore be changing even in these States. Other vocal supporters of capital punishment have been concentrated in the English-speaking countries of the Caribbean. But in the past decade there have been only a couple of executions, and in practice they seem to have lost their enthusiasm for executions.
Will such objectively measurable phenomenon be reflected in the positions they adopt within the General Assembly? We'll see in the coming weeks.
A draft text of the resolution was submitted a couple of weeks ago. Now, meetings with possible co-sponsors are underway, with a view to getting a final draft by the middle of the coming week (3 or 4 November). At the same time, a report from the Secretary-General on implementation of the earlier resolutions (A/RES/62/149 and A/RES/63/168) will be issued. The draft will be voted on by the Third Committee of the General Assembly sometime between 4 and 8 November.

Racism in Sport

A report on racism, ethnic discrimination and the exclusion of migrants and minorities in sport has been issued by the EU Fundamental Rights Agency. It contains the results of interviews with representatives of sport federations, player and athlete organisations and non-governmental organisations from across the EU, together with an analysis of secondary data and information. The research findings show that in many sports across the European Union, minorities and migrants are underrepresented, particularly in the management positions of sport organisations. Women and girls with a minority or migrant background are particularly underrepresented. The findings also highlight the fact that although media focus tends to be on racist incidents perpetrated in professional sport, such incidents also occur in amateur sports – not only by fans, but also between players, referees and club officials. For a copy of the report, click here.

This has the makings of a great doctoral thesis topic, and a book. I think of the United States, where discrimination in professional sport was a significant component of the fight for racial equality. Or South Africa, where the boycott of national teams during the apartheid era is said to have had more impact within the country than economic sanctions. An imaginative student could put together a fascinating package on the human rights issues involved in sport, both amateur and professional.

 

China and Censorship

I've been in China the past week, and as in the past I was unable to access my blog.
Chinese censorship of the internet is more and more bizarre because it is obvious that it doesn't really work. It is a leaking sieve. When I tell Chinese friends and colleagues about my frustration accessing the blog, they explain that there are well-known techniques of circumventing censorship that virtually everyone can use. I'm not there long enough to bother learning how to do this. But it seems that any Chinese person who would be interested enough to read a blog, in English, discussing issues of interest to post-graduate students, will find their way to it.
I had a great visit, and managed to deliver lectures at universities in Shanghai, Harbin and Beijing, where I met many fine students completing masters and doctoral degrees. My lectures were on use of the death penalty for drug crimes and introduction of the crime of aggression into the Rome Statute of the International Criminal Court. Autumn is a fine time of year. The air in Beijing was crisp and clear. Harbin is already getting cold, and they have had their first snow, although it had melted when I was there. Shanghai was buzzing with Expo, but I didn't have time for a visit. I was in Shanghai so briefly that I would not have had time to wait in even a single queue at the world's fair (they are said to take several hours). Apparently Expo has 1 million visitors each day.
This seems to be a difficult time for human rights in China, with more repression than at some times in the past. I was curious to learn more about recently announced proposals to remove 13 death penalty crimes from the criminal law. Colleagues in China suggested that the efforts of our EU-China exchanges on capital punishment made a positive contribution to the debate. It is difficult to know how significant this reform really is, because we have no idea of the number of people who may have been executed for such crimes in the past. Last week I was told by reliable sources that the numbers affected are significant and that the reform - still not completed - is an important one.
When I visit China - this was probably my 20th trip in a decade - I cannot say I meet a cross section of Chinese society. My contacts are with academics and students, mainly. They are perhaps not 'typical' Chinese, but nor are they members of the new aristocracy. In that sense, they are average and representative, and they seem to come from all social backgrounds given that Chinese higher education seems to be slighly more egalitarian - in terms of access-  than in the west. And most of them have very liberal and progressive attitudes towards human rights. My impression is that while many of them are disturbed about the big human rights issues, like the death penalty, torture and 'reform through labour', what really matters to them is the somewhat intangible, nebulous notion that we call 'freedom'. They drive the same cars we do, have the latest mobile phones, and drink latte at Starbucks. But there is something that those of us who live in western democracies take for granted and that our Chinese friends are missing: freedom to say what they want, when and where they choose, without fear of arrest or persecution. Even little things, like the annoying but ineffective blocking of access to my blog, remind them of this every single day.

Iraq and Wikileaks

On Saturday, the Guardian published a special section of the newspaper about the huge repository of documents that has been posted on Wikileaks about the war in Iraq. The information is stunning in its scope. These are American military records that were released by a so-called whistle-blower. It seems that despite their claims to the contrary, the Americans were actually counting the deaths, and that the total for the conflict exceeds 100,000. There are appalling reports of the behaviour of military contractors, of systematic torture, of summary executions, and so on. It makes the conduct of Israeli forces in Gaza that was documented in the Goldstone Report look almost benign by comparison.
What sort of accountability can we expect for this? Will the United Nations Security Council or the Human Rights Council call for a report, as was the case with Gaza? Will the Office of the High Commissioner do a mapping exercise, as was the case with the Democratic Republic of the Congo?
Almost five years ago,  the Prosecutor of the International Criminal Court declined to pursue investigations in Iraq into the conduct of British troops, over whom the Court may exercise jurisdiction, because the incidents of killing and torture were not deemed serious enough. Perhaps he should reassess this in light of the new information.
It will be pointed out that these documents concern US troops, and not British forces, and that US troops are not subject to the jurisdiction of the International Criminal Court. But there is a serious argument that the British are also liable for crimes perpetrated by the Americans, because they were part of a joint criminal enterprise to commit a crime within the jurisdiction of the Court. That crime is aggression. Although the Court cannot yet prosecute the crime of aggression, it can prosecute war crimes and crimes against humanity perpetrated as part of a joint criminal enterprise to commit a 'crime within the jurisdiction of the court' (art. 25(3)(iv) of the Rome Statute). Even in 2003, the crime of aggression was a 'crime within the jurisdiction of the court' in accordance with article 5 of the Statute.
The latest documents provide much evidence of war crimes committed by or with the complicity of American troops. At Nuremberg, the International Military Tribunal famously stated that the crime of aggression was 'the supreme international crime', and that it encompassed the evil of the other crimes. Is this not the case with Iraq? Without the crime of aggression, committed when the US and the UK invaded Iraq in manifest violation of the Charter of the United Nations, the war crimes and crimes against humanity would not have taken place. War itself is the supreme evil.

Lad Chatterley's Lover and Censorship

At our Irish-American retreat last week, we held a fascinating session on censorship. It focused on Ireland, and we didn’t dwell on the issue in other countries. Yesterday’s Guardian had a great account of the Lady Chatterley trial in the United Kingdom, by the distinguished barrister Geoffrey Robertson.

Geoff’s latest book The Case of the Pope: Vatican Responsibility for Human Rights Abuses, published by Penguin, is also well worth a read.

Irish American Exchange on Human Rights

Des Kenny speaking on censorship in Ireland during the 1950s, while Prof. Doug Cassel looks on, during yesterday morning's session at Kenny's Bookshop

Over the past two days, we have held the second annual Irish American Exchange on Human Rights with our colleagues from the University of Notre Dame. Yesterday, we met at Kenny's Bookshop, a Galway institution, where several speakers looked at literary themes and their relationship with human rights. Sean O'Brien spoke about Oscar Wilde's contribution to prison reform, and Mary Ellen O'Connell began with Kurt Vonnegut's Slaughterhouse Five for a talk on jus cogens and the prohibition of attacks on civilians. Doug Cassel, director of the Notre Dame Centre on Civil and Human Rights, compared censorship case law in Europe and the United States. Des Kenny himself lectured on Irish censorship in the 1950s. Several of our doctoral students made presentations, including Rick Lines, Dang Heping and Eadaoin O'Brien.
The exchange provides us with an informal and relaxed occasion to exchange ideas about human rights law and practice, including new research that we are doing. We began the exchanges last year, with a weekend at the University of Notre Dame, and we will continue them next year. All are welcome, by the way, and we hope to broaden the circle beyond our two institutions so as to engage with all who would appreciate a stimulating two days of seminars on human rights.

Maps Show Arbitrariness in Death Sentences in United States

A series of maps illustrates the regional distribution of death sentences within the United States in recent years. These are not actual executions, but rather pronouncements of the death penalty following a trial. They indicate enormous disparity and, I think, arbitrariness. We have long understood that the practice of capital punishment in the United States was largely confined to the south, and in particular to slave states and those with a traditional of lynching in the early part of the twentieth century. It seems that there is a further dimension to this: certain countries are enthusiasts for capital punishment, others are not. I'd like deterrence theorists to explain that.

According to Robert Smith

The maps show that roughly 90% of counties in the United States did not sentence anyone to death between 2004-2009 (the number is closer to 95% between 2007-2009). Even within states that heavily rely upon the death penalty, places like Texas, Alabama, Florida, California, and Oklahoma, the majority of counties in these states do not use the death penalty. Instead, a narrow band of counties (e.g., Los Angeles, Maricopa) account for a disproportionate number of death sentences year after year. Nothing distinguishes the murders (or murderers) in the counties that impose death sentences from those in the heavy majority of American counties that do not.

Smith recalls the words of Justice Potter Stewart of the United States Supreme Court in Furman v. Gerorgia in 1972:

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.

Doctoral Fellowships at the Irish Centre for Human Rights

The Irish Centre for Human Rights at the National University of Ireland, Galway is currently accepting applications for two Doctoral Fellowships.  The successful candidates will engage in 20 hours of research and administrative tasks per week for the Irish Centre for Human Rights, in addition to pursuing their own doctoral research. 

These Fellowships is scheduled to begin on 1 November 2010 and are available for a period of 12 months, and may be extended for an additional 12 months, dependent upon funding and satisfactory progress. The Fellowships consist of an annual stipend of €16,000 and do not cover tuition fees. The holder is expected to reside in Galway, Ireland and will carry out the required activities at the Irish Centre for Human Rights.

Those interested in applying should submit a covering letter, curriculum vitae and two letters of reference by 5pm on Wednesday 27 October 2010 to: humanrights@nuigalway.ie. Current doctoral students need only submit a letter of interest which may contain any additional information of relevance.

The successful candidate, if not already on the programme, will be required to submit a full application for the doctoral programme, and the final award is conditional on admission by the University. Further details on the doctoral programme at the Irish Centre for Human Rights are available here. 

Humiliation for Canada at United Nations: Blame its Human Rights Record

Canada was humiliated at the United Nations earlier this week when it failed to win election to the Security Council. Canada has held a two-year mandate as an elected member of the Council on six occasions since the founding of the United Nations. This is the first time it has failed to win election.

Canada needed 127 votes, but only got 114 on the first ballot and 78 on the second. Canadian diplomats claim they had promises from well more than the number of votes required. But the ballot is secret, and promising to vote for in a United Nations election and actually delivering the vote is a game that Canada has played too.

What happened? Isn’t it obvious? Canada’s foreign policy has taken a dramatic swing to the right since the Harper government took power. Many members of the General Assembly must have thought there was little point electing a country that would be little more than a ventriloquist’s dummy for one of the permanent members of the Council. Canada might belong on the NATO Council, but it hardly deserves a place on the Security Council, where the vast majority of General Assembly members desire that the elected members show courage and independence in the face of the permanent five. And a commitment to multilateralism, which was until recently a hallmark of Canadian foreign policy. 

Canada’s human rights record over the past four years is largely to blame. Canada’s performance in the Human Rights Council has been disgraceful, a sea change from the constructive, progressive posture it was known for in the 1980s and 1990s, and the first few years of the last decade. Many were stunned at the first session of the Council, in 2006, when Canada actually voted against the Declaration on the Rights of Indigenous Peoples, one of only two states to do so (Russia was the other). Last year, Canada completely boycotted the Durban Review Conference on racism and xenophobia. Inside the country, we had the sorry spectacle earlier this year of Harper nominees working to destroy the distinguished Canadian organization Rights and Democracy.

Read Ken Roth of Human Rights Watch in the Ottawa Citizen for a good discussion of this. Some government supporters have been blaming Michael Ignatieff, who is leader of the parliamentary opposition, because he suggested Canada didn’t merit a seat on the Council, given its indifference to the United Nations in recent years, but all that Ignatieff did was speak the truth.

Another Successful PhD: Khadeija Mahgoub on the Right of the Child to Survival and Development

From left, myself, Khadeija Mahgoub, Dr Vinodh Jaichand and Prof. Karin Arts.

Khadeija Mahgoub successfully defended her doctoral thesis today at the Irish Centre for Human Rights on The Right of the Child to Survival and Development: Reflections on Article 6(2) of the United Nations Convention on the Rights of the Child. The external examiner was Prof. Karin Arts of Erasmus University Rotterdam, ISS. The internal examiner was Dr Vinodh Jaichand. Congratulations, Khadeija.

Debate About Goldstone Report During Lawfare Seminar in Cleveland

Several weeks ago, the Frederick K. Cox International Law Centre of Case Western Reserve University School of Law hosted a conference on so-called 'Lawfare'. The entire seminar was recorded and can now be viewed on the internet. See particularly the lively panel on the Goldstone Report.

Guardian Law Blog

Please forgive this indulgence in mutual admiration, but Monday's entry on the European Court decision is highlighted as a 'Pick for the day' on the Guardian's Law Blog.
Thanks to Joe Powderly.

Victory on Death Penalty at European Court of Human Rights

Today, the European Court of Human Rights refused to authorize the reconsideration of the Al Saadoon and Mufdhi  v. UK case by the Grand Chamber. That means that the decision by a Chamber of the Court of last March is final and authoritative. Public Interest Lawyers, and my good friend Phil Shiner, deserve great credit for this. They have issued a celebratory press release.
I too am thrilled at the result, but perhaps a bit disappointed that the Grand Chamber will not have a chance to review the reasoning of the Chamber on this one. The Chamber concluded that the current practice in Europe on capital punishment means that the second sentence of article 2(1) of the European Convention on Human Rights is, in effect, considered to be no longer operative. With that I agree wholeheartedly. This is the phrase that preserves capital punishment as an exception to the right to life.
From there, the Chamber might then have concluded that without an express exception, the death penalty should be considered a violation of the right to life, which is protected by article 2. However, the Chamber takes a different route, and concludes that the death penalty would then constitute a violation of article 3, as 'inhuman or degrading punishment'. On close reading of its decision, however, the judges of the Chamber do not say that it is the death penalty that constitutes inhuman or degrading punishment, but rather than agony of a convicted person thinking about the penalty. I remain very troubled by this approach to the issue. Many prisoners suffer while thinking about their penalties, even relatively minor ones. It seems inherent in the idea of punishment. It should be the death penalty itself, and not thinking about it, that constitutes a violation of the Convention.
On the other hand, we can hope that today's ruling means that the European Court of Human Rights will never again have to consider the issue of capital punishment.

Human Rights Council: New Treaty on Mercenaries and New Special Procedures

The resolutions adopted at the recent session of the Human Rights Council are not yet posted on the website of the Council, but the highlights include:

• the start of the drafting process of a new treaty on mercenaries and military contractors;
• a new special rapporteur on freedom of peaceful assembly
• a new working group on the elimination of discrimination against women.

It was touch and go until the end, on Friday, but the mandate of the independent expert on Sudan was renewed, this time with a stronger majority than in the past.
Also, the High Commissioner was successful in fighting off an initiative from Cuba that threatened her independence by suggesting a degree of oversight by the Council. The compromise was adoption of a Presidential Statement.
When the documents are available, they will be posted here.

New Light on the Death Toll in the Congo Wars

Although yesterday’s report on the Congo Mapping Exercise says it is providing an ‘inventory’, it does not actually propose a figure for the number of deaths during the Congo wars. However, taken as a whole, the report seems to suggest that we should adjust our estimates downward.

 The death toll during the conflicts in the Congo has been much debated in recent years. It has been said that the Congo was the ‘most deadly conflict since the second world war’

The International Rescue Committee has proposed a figure of 5.4 million deaths. The Human Security Report has said this is greatly exaggerated.

 The Mapping Exercise reports mentions the International Rescue Committee report in a footnote, but says, much more cautiously, that the wars in the Congo ‘brought about the deaths of hundreds of thousands, if not millions, of people’ (para. 127). Elsewhere, it also speaks of ‘hundreds of thousands of victims’ (para. 59), although it is not clear if it is speaking only of deaths or rather of human rights violations in general. The Mapping Exercise was to look at the ‘most serious’ incidents of violations, and a large number of individual violations are described. When numbers are offered, the report often speaks of ‘several hundred’.

 If the Congo is indeed the most deadly conflict since the Second World War, then it shows how much progress humanity has made since then. During the Second World War, the death toll is the Soviet Union alone is said to be of the order of 20 million people. By my calculations, approximately 25,000 people died every day at the height of the Second World War.

But what is probably a more realistic take on the death toll in the Congo, in the Mapping Exercise Report, may actually support the view that it was not the most deadly conflict since the Second World War. How about the Vietnam War, when somewhere between 2 and 3 million Vietnamese people died? Or the death toll resulting from the invasion of Iraq in 2003, which may now number about 1 million Iraqis? Why doesn’t the United Nations call for an international or a hybrid criminal tribunal to deal with atrocity crimes committed in Vietnam, in the same way it did with the Khmer Rouge atrocities in Cambodia? Why doesn’t it call for an international criminal tribunal to deal with atrocity crimes in Iraq, in the same way that it has done with Sierra Leone, Lebanon and so on? These are rhetorical questions, of course. I’m sure that readers of the blog know the answer.

Congo Report Significantly Tones Down Language on Genocide Accusations

The controversial report on human rights violations in the Democratic Republic of the Congo was issued yesterday by the Office of the High Commissioner for Human Rights. It takes a much more nuanced approach to the genocide charges in the final version compared with the draft.

About a month ago, Le Monde reported on a leaked draft of the report that contained charges that Rwandese military forces in eastern Congo had engaged in genocide against Hutu populations. The leak seems to have been related to ongoing debates within the Office of the High Commissioner for Human Rights concerning the wisdom of even using the term genocide, with its inflammatory connotations. Whoever leaked the draft report probably meant to pre-empt the debate and make it impossible for the High Commissioner to withdraw the paragraphs concerning genocide. The Rwandan government was furious, although it has apparently calmed down somewhat after a visit from Secretary-General Ban Ki-moon a few weeks ago.

A comparison of the draft report and the final version issued yesterday shows that although the High Commissioner has not withdrawn the references to genocide, the relevant paragraphs have been somewhat toned down. Moreover, there are several additional paragraphs that explain the difficulties and problems in sustaining genocide charges.

There are two relevant portions of the report concerning genocide. The first is paragraphs 27 to 33.

The original text of paragraph 31 included the following: ‘The systematic, methodological and premeditated nature of the attacks listed against the Hutus is also marked: these attacks took place in each location where refugees had been screened by the AFDL/APR over a vast area of the country.’ In the final version, it becomes: ‘If proven, the incidents’ revelation of what appears to be the systematic, methodological and premeditated nature of the attacks listed against the Hutus is also marked: these attacks took place in each location where refugees had allegedly been screened by the AFDL/APR over a vast area of the country.’ Later in the same paragraph, he draft report states: ‘Thus the systematic and widespread attacks described in this report reveal a number of damning elements that, if proven before a competent court, could be classified as crimes of genocide.’ In the final report, it becomes: ‘Thus the apparent systematic and widespread attacks described in this report reveal a number of inculpatory elements that, if proven before a competent court, could be characterized as crimes of genocide.’

The adjustments are more dramatic in paragraph 32, where the arguments against a finding of genocide are set out. In the draft report, the discussion was brief:

It should be noted, however, that certain elements could cause a court to hesitate to decide on the existence of a genocidal plan, such as the fact that as of 15 November 1996, several tens of thousands of Rwandan Hutu refugees, many of whom had survived previous attacks, were repatriated to Rwanda with the help of the AFDL/APR authorities and that hundreds of thousands of Rwandan Hutu refugees were able to return to Rwanda with the consent of the Rwandan authorities. Whilst in general the killings did not spare women and children, it should be noted that in some places, particularly at the beginning of the first war in 1996, Hutu women and children were in fact separated from the men, and only the men were subsequently killed.

Here is the final version:

There are however a number of countervailaing factors that could lead a court to find that the requisite intent was lacking, and hence that the crime of genocide was not committed. First, it must be proven that the intent of the alleged perpetrators was to destroy a part of the Hutu ethnic group ‘as such’. It does not suffice to prove that members of the group were targeted because they belonged to the group, or that there were deliberate killings of members of the group. Second, in the absence of direct evidence of intent to destroy the group, such intent can only be inferred from circumstantial facts and evidence, that is, from the conduct of the alleged perpetrator, if it is the only reasonable inference possible. Where an alternative inference can be drawn from the conduct of the alleged perpetrator, the clear ‘intent to destroy’ required is difficult to establish. A number of alternative explanations or inferences could be drawn from the conduct of the RPA/AFDL in attacking the camps in Zaire in 1996 to 1997. The intent underlying the killings could be deemed as collective retribution against Hutu civilians in Zaire suspected of involvement with the ex-FAR/Interahamwe, reinforced by the RPA/AFDL’s conviction that upon destroying the camps, all Hutu remaining in Zaire were in sympathy with the perpetrators of the 1994 genocide in Rwanda. Finally, facts which tend to show that the RPA/AFDL spared the lives, and in fact facilitated the return to Rwanda of very large numbers of Hutu militate against proving a clear intent to destroy the group. Additionally, whilst in general the killings did not spare women and children, it should be noted that in some places, particularly at the beginning of the first war in 1996, Hutu women and children were apparently separated from the men, and allegedly only the men were subsequently killed.

Finally, paragraph 33 of the draft:

Nonetheless, neither the fact of only targeting men in the massacres, nor the fact of allowing part of the group to leave the country or even facilitating their movements for various reasons are sufficient in themselves to entirely do away with the intention of certain people to in part destroy an ethnic group as such and thus to commit a crime of genocide. It will be for a competent court to make a decision on the issue.

This becomes considerably more cautious in the final version:

In light of the competing considerations reviewed above, a full judicial investigation into the events that occurred in Zaire in 1996 to 1997 will be necessary, in order to permit a competent court to decide on the matter.

There is also a very significant discussion of the genocide issue later in the report, beginning at paragraph 500. As in the earlier portion, after a recital of the basis for charging genocide, the arguments against such a conclusion are set out. This is once more relatively brief in the draft report, and is included, almost as an afterthought, in the second portion of paragraph 517:

It should be noted that certain elements could cause a court to hesitate to decide on the existence of a genocidal plan, such as the fact that as of 15 November 1996, several tens of thousands of Rwandan Hutu refugees, many of whom had survived previous attacks, were repatriated to Rwanda with the help of the AFDL/APR authorities and that hundreds of thousands of Rwandan Hutu refugees were able to return to Rwanda with the consent of the Rwandan authorities prior to the start of the first war. Whilst, in general, the killings did not spare women and children, it should be noted that in some places, at the beginning of the first war, Hutu women and children were in fact separated from the men, and only the men were subsequently killed.

Paragraph 518 of the draft attempts to claw this back:

Nonetheless, neither the fact that only men were targeted during the massacres, nor the fact that part of the group were allowed to leave the country or that there movement was facilitated for various reasons, are sufficient in themselves to entirely remove the intention of certain people to partially destroy an ethnic group as such. In this respect it seems possible to infer a specific intention on the part of certain AFDL/APR commanders to partially destroy the Hutus in the DRC, and therefore to commit a crime of genocide, based on their conduct, words and the damning circumstances of the acts of violence committed by the men under their command. It will be for a court with proper jurisdiction to rule on this question.

This discussion is quite dramatically changed in the final version. Rather than place the arguments in the concluding portion of a paragraph, almost as an afterthought, the report sets out in considerable detail the difficulties in making out the charge of genocide. It does this in several distinct paragraphs:

518. There are a number of factors that could lead against a finding of the requisite intent, and hence the crime of genocide. First, is the need to establish that the intent of the alleged perpetrators was to destroy (a part of) the Hutu ethnic group ‘as such’, and distinguishing such intent, from the discriminatory (but not necessarily genocidal) intent to kill persons on account of their belonging to a group. The International Court of Justice, in ruling on the intent required, has emphasized that genocide requires the establishment of the intent to destroy the protected group, in whole or in part, ‘as such’. It is neither enough to establish that deliberate unlawful killings of members of the group occurred, nor that members of the group were targeted because they belonged to the group, which only shows the alleged perpetrator had a discriminatory intent. The words ‘as such’ emphasize that intent to destroy the protected group.

 

519. Second, is the essential requirement to establish clearly, the intent to destroy the group. This clear view of the intent is critical to distinguish situations of targeting members of a group because of their group identity – which does not by itself constitute genocide – and intending to destroy the group in whole or in part, which does. In the absence of direct evidence of intent, a judicial assessor must observe stringent standards in drawing inferences from circumstantial evidence, in order to establish intent. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia has ruled that such an inference may not be drawn unless it is ‘the only reasonable inference available on the evidence’, and that convictions for genocide can only be entered ‘where the intent has been unequivocally established’. When inferring intent from circumstantial evidence of the alleged perpetrator’s conduct, the availability of a plausible alternative explanation for the conduct in question, makes it difficult to  establish a clear intent to destroy a group in whole or in part.

 

520. Third, in the specific context of the events in Zaire in 1996 to 1997 documented in this report, a number of alternative explanations for the actions of the RPA/AFDL may be raised. If proven, these would militate against concluding that an intent to destroy Hutu ‘as such’ is the only inference that can reasonably be drawn from their actions as documented in this report. The RPA/AFDL attacks on the camps and fleeing Hutu in Zaire could be interpreted as a campaign of collective retribution against Hutu civilians in Zaire suspected of involvement or sympathy with the ex-FAR/Interahamwe, who perpetrated the 1994 genocide in Rwanda. The return to Rwanda of very large numbers of Rwandan Hutu refugees during the 1996 to 1997 RPA/AFDL attacks on the camps, may have reinforced the perception that those Hutu civilians remaining in Zaire did so either because they were part of, or in sympathy with, the ex-FAR/Interahamwe. The U.N. Secretary General’s Investigative Team, which was deployed to the Democratic Republic of the Congo shortly after the events, demonstrated – in its final report – the challenge of inferring the clear intent underlying the killings of Hutu in DRC, as follows:

 

“When the camps in North Kivu were attacked in October and November 1996, it is clear that one of the objectives was to force the refugee population in the camps to return to Rwandan territory. To some extent the return was voluntary, since many genuine refugees had been prevented from returning by the military elements in the camps. However, it also is clear that, at some times and in some areas, the attacks on former camp populations which fled westward into theinterior of Zaire were not intended to force them to return but simply to eliminate them. (…) There are at least two possible interpretations of the intent to eliminate the Rwandan Hutus remaining in the country: either there was a decision to eliminate them rather than repatriate them, for whatever reason, or there was a decision to eliminate them because the breaking up of the camps in effect separated the ‘good‘ Hutus from the bad: those who had little involvement in the 1994 genocide against Tutsis had returned and those who fled rather than return were those who had participated in or supported the genocide. In either case the systematic massacre of those remaining in Zaire was an abhorrent crime against humanity but the underlying rationale for the decisions is material to whether these killings constituted genocide, that is, a decision to eliminate, in part, the Hutu ethnic group. The underlying reason for the massacres of Zairian Hutus in North Kivu is also material. This question is the most momentous one included in the mandate given to the Team, and one which requires further investigation”.

 

521. Fourth, facts which tend to show that the alleged perpetrator spared the lives of members of the group whom they had the means and opportunity to kill, may militate against proof of a clear intent to destroy the group. As this report and previous inquiries (such as the Secretary General’s Investigative Team in 1998) have noted, a very large number of Rwandan Hutu present in Zaire were able to return to Rwanda – including with the RPA’s assistance – during the 1996-1997 RPA/AFDL military campaign in Congo. It should be noted that as of 15 November 1996, several tens of thousands of Rwandan Hutu refugees, many of whom had survived previous attacks, were repatriated to Rwanda with the help of the AFDL/APR authorities and that hundreds of thousands of Rwandan Hutu refugees were able to return to Rwanda with the consent of the Rwandan authorities prior to the start of the first war. Whilst, in general, the killings did not spare women and children, it should be noted that in some places, at the beginning of the first war, Hutu women and children were in fact separated from the men, and only the men were subsequently killed.

 

522. In light of the competing considerations mentioned above, it is important that a full judicial investigation take place, in order to shed light on the reported incidents which occurred in the territory of the DRC in the period from 1996 to 1997. Only such an investigation and judicial determination would be in a position to resolve whether these incidents amount to the crime of genocide.

It is obvious that while the references to genocide are retained, the ‘spin’ on the issue is changed dramatically. The discussion in the final version is much more balanced and appropriate.

In virtually any conflict with an ethnic dimension where there are significant numbers of killings it is possible to raise the issue of genocidal intent in a theoretical sense. Generally, however, it is not very helpful to throw the 'g word' around cavalierly. And it does nothing to mitigate the effect to add words like 'this will have to be addressed in a court of law'. By the way, such a statement is not even accurate. We make assessments about the existence of genocide, crimes against humanity and war crimes even when there is no relevant judgment by a court of law. Does the report really mean to say it is impossible to use the word genocide to describe the massacre of the Herero in Namibia in 1904, or of indigenous peoples throughout the world in the 18th and 19th centuries, simply because this cannot be adjudicated by a 'court of law'?

It is unfortunate that the issue of genocide arose at all. The reference in the draft report was quite gratuitous. It reminded me of the charge in the UN General Assembly, in 1982, that Israel had been involved in genocide in the massacres at the Sabra and Shatilla refugee camps in Beirut. In both cases, use of the term genocide is provocative and demagogic, aimed, as it is, at undisputed victims of genocide. Even the existing references to genocide in the final version of the report will nourish those who advocate a nefarious 'double genocide' thesis.

The consequence is to distract us from the important issues. Use of the term genocide has done great harm to what is otherwise a very professional and highly useful mapping exercise. As the High Commissioner explained yesterday, “no report can adequately describe the horrors experienced by the civilian population’ in the Democratic Republic of the Congo, where ‘almost every single individual has an experience to narrate of suffering and loss’.

Drones

David Akerson, who is a lecturer at the Sturm College of Law of the University of Denver, and a doctoral student at the Irish Centre for Human Rights, has a blog on the subject of drones.

Human Rights of Migrants.

Yesterday, the Global Migration Group on the Human Rights of Migrants in Irregular Situation adopted a statement. It notes that 'States have addressed irregular migration solely through the lens of sovereignty, border security or law enforcement, sometimes driven by hostile domestic constituencies. Although States have legitimate interests in securing their borders and exercising immigration controls, such concerns cannot, and indeed, as a matter of international law do not, trump the obligations of the State to respect the internationally guaranteed rights of all persons, to protect those rights against abuses, and to fulfill the rights necessary for them to enjoy a life of dignity and security.'

The Global Migration Group is an inter-agency group bringing together 12 United Nations agencies, the World Bank, and the International Organization for Migration,