Monday, 27 December 2010

Kevin Boyle RIP

Kevin Boyle passed away yesterday. Kevin has been professor of human rights law at the University of Essex, in the UK, for many years.  Prior to that, he had been the director of Article 19, a human rights NGO dedicated to freedom of expression, and before that, he had been professor of law at the National University of Ireland, Galway, where he founded the Irish Centre for Human Rights in the early 1980s. He also worked closely with Mary Robinson when she was the High Commissioner for Human Rights. He is one of Ireland's greatest human rights lawyers.
Kevin nurtured generations of students who work in the field of human rights around the world. His scholarship advanced our understanding of the law. He was a lovely man and a dear friend, and we will miss him terribly. Our deepest sympathies go out to Joan, and to the other members of his family.
On 28 December, there was a short obituary on RTE, the Irish national radio network, and in the Irish Times.
On 1 January 2011, the Irish Times published a slight shortened version of a detailed obituary that I prepared. Here is my draft.
On 3 January, Nigel Rodley's obituary appeared in the Guardian.
See also the obituary in the Irish Independent.

Thursday, 23 December 2010

Security Council establishes "International Residual Mechanism for Criminal Tribunals'

By Resolution 1966 (2010), the United Nations Security Council yesterday established the International Residual Mechanism for Criminal Tribunals with two branches. The Mechanism’s branch for the International Criminal Tribunal for Rwanda (ICTR) will begin functioning on 1 July 2012, while the branch for the International Criminal Tribunal for the former Yugoslavia (ICTY) will commence on 1 July 2013.
The Statute of the International Residual Mechanism is annexed to the Resolution.
In effect, the 'Mechanism' is a new international criminal tribunal established by the Security Council, the fifth such institution (in addition to ICTY and ICTR, the Council has participated in the creation of the Special Court for Sierra Leone and the Special Tribunal for Lebanon). There are a number of specific differences between the Mechanism and the two ad hoc tribunals that it is created to replace, including the possibility of a trial before a single judge. In principle, the Mechanism cannot indict new accused; its caseload is inherited from the two tribunals it replaces.

Under the so-called 'completion strategy', the tribunals were supposed to complete investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all work in 2010. They have fallen far short of this target. Yesterday's resolution was adopted with one abstention, of Russia. It said the tribunals had 'every opportunity' to complete their work by the dates that had been previously agreed. 'We firmly believe that today’s resolution is the last on the issue of the duration of activity of the tribunals and that they will be fully wound up by the end of 2014', said the Russian permanent representative.

Wednesday, 22 December 2010

Something Cooking at the Special Tribunal for Lebanon

Something is cooking at the Special Tribunal for Lebanon, now more than two years old but without an accused. That's almost as slow as the International Criminal Court.
Today's Irish Times says an indictment against Hizbullah leader Mustafa Badreddine is likely. Badreddine is the brother-in-law of Imad Mugniyah, the man alleged to have masterminded a series of attacks in the 1980s, including the 1983 bombing of the US Marine Corps barracks in Beirut which killed 241 US servicemen.
A few weeks ago, the registrar of the Tribunal, Herman von Hebel, said the first indictment of the Tribunal would be issued soon. The Tribunal may issue a sealed indictment, and indeed the first indictment may already have been made.
According to today's Jerusalem Post, Lebanese Prime Minister Saad Hariri will ask the Special Tribunal for Lebanon - created to prosecute the murderer(s) of his father, Rafik Hariri), to stop its activities and to leave the country. The Post cites the Lebanese newspaper Al-Diyar as its authority. Hariri is quoted saying he would resist any indictments: 'I have sacrificed a lot and cannot sacrifice more.'

Sunday, 19 December 2010

Wikileaks and the Special Court for Sierra Leone

I’ve found three Wikileaks documents that discuss the Special Court for Sierra Leone. The first, dated 10 March 2009, is from the US embassy in Liberia, and responds to remarks by Steve Rapp, who was then Prosecutor of the Special Court for Sierra Leone, that suggested Charles Taylor might go free because of budgetary reasons.

Tuesday, 10 March 2009, 12:51
EO 12958 DECL: 03/10/2019 
Classified By: Ambassador Linda Thomas-Greenfield for Reasons 1.4 (b) a nd (d).

1. (C) Summary: The recent remarks by Special Court for Sierra Leone prosecutor Stephen Rapp suggestingCharles Taylor may go free because of budgetary reasons caused alarm within the GOL and has emboldened Taylor supporters. Communication inside the Taylor camp remains intact, and those in leadership roles continue to be active and unrepentant. Should Taylor be acquitted in The Hague or given a light sentence, his return to Liberiacould tip the balance in a fragile peace. The international community must consider steps should Taylor not be sent to prison for a long time. We should look at the possibility of trying Taylor in the United States. End Summary.
2. (C) Chief Prosecutor Stephen Rapp's ill considered announcement in the press February 24 that Charles Taylor may walk free because of a supposed budget shortfall for the Special Court for Sierra Leone, where Taylor is presently on trial, made headlines in the local press, and raised anxiety here about Taylor's imminent return. The GOL was alarmed enough that President Sirleaf called Ambassador on February 28 to raise her concerns. Sirleaf pointed out that Liberia's stability remains fragile, and such remarks reverberated throughout the country, as people are still traumatized by Taylor and the war.
3. (C) The press accounts out of The Hague have also emboldened the pro-Taylor factions here, including his extended family members, financiers and National Patriotic Party (NPP) loyalists, raising their hopes that Taylor might be acquitted soon. Despite their rhetoric about "moving on," they have thus far refused to appear before the Truth and Reconciliation Commission (TRC) to account for their activities, and those on the UN Sanctions lists continue to request delisting on the basis they have done nothing wrong rather than demonstrating what they have done to provide restitution for their activities.
4. (C) The government itself is caught in the middle. There is quite little the GOL can do legally to arrest, prosecute or freeze assets of those who were close to Taylor, even if the political will were there, which remains an open question. The TRC has recommended a domestic war crimes court be set up, but under statute an Independent National Commission on Human Rights (INHCR) would implement the recommendation, and the Legislature (some of whom had close ties to Taylor) has thus far failed to establish the INCHR. The Legislature has also refused to pass any law that would allow the GOL to freeze assets of those on the UN sanctions list, and the Supreme Court has ruled that any confiscation of property can be done only after a trial.
5. (C) The Accra Comprehensive Peace Agreement (CPA) of August 2003 that ended the 14-year civil war, did not require the NPP to disband and in fact permitted the NPP to participate in the transitional government and in the 2005 elections. The NPP now holds seven seats in the Legislature (which may be one reason the legislation is being blocked). As well, none of Taylor's properties have been seized by the government and they remain in good shape and remarkably free of squatters, as no one dares to take the risk of retribution.
--------------------------------------------- -------
6. (C)  The pro-Taylor forces still have the ability to organize themselves. An NPP rally in December 2008 gathered a sizeable crowd, and Taylor supporters in June 2008 succeeded in preventing FBI investigators from entering Taylor's residence "White Flower" to obtain evidence for the Chucky Taylor trial in Florida. The most recent example was their effort on March 7 to disrupt the International Women's Colloquium. Taylor remains popular within many rural communities, especially in Bong, Lofa and Nimba counties, and is seen as someone who was able to unite Liberia's different ethnic groups. We also suspect there is some sympathy within the Americo-Liberian population who saw him as their deliverance from their losses following the 1979 coup. While we do not suggest they would want Taylor to return, we are sure that they do no want too many rocks to be turned over.
7. (C) Although we do not have any direct evidence to support the belief that pro-Taylor factions are behind much of the armed robbery on the premise that crime will keep the government weak and the country unstable, the GOL is certainly convinced of this, and has taken steps to counteract the threat. The most recent act was to put Taylor-era head of police Paul Mulbah into the LNP as an "advisor" that some accuse (and the government denies) was in order to placate the Taylor people in advance of the March 7-8 International Women's Colloquium. That the Taylor crowd can still motivate such a reaction in the government is a testament to their influence.
8. (C) Lines of communications within Taylor's faction, the National Patriotic Front of Liberia (NPFL) remain intact. To be sure, the disarmament of the factions following the CPA has been extremely successful, and we have thus far been unable to confirm the existence of any large weapons caches, despite the persistent rumors. But the reintegration of the ex-combatants is far from complete. Former NPFL commanders Roland Duo (the only senior Taylor supporter to have testified before the TRC), Christopher "General Mosquito" Vambo and Melvin Sogbandi (none of whom are on the sanctions lists) remain in contact with the ex-combatants, and would have the capability to organize an uprising or even criminal activity.
9. (C) Certainly, the same is true for the other factions, the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL). While apparently unarmed and not active in Liberia, we continue to receive reports that LURD is recruiting ex-combatants for militias in Guinea and MODEL is doing the same for Cote d'Ivoire.
--------------------------------------------- -
11. (C) The threat of a return of Taylor strengthens their hand and for now they see no need to give in at all. However, if Taylor is put away for a long time, the government may feel a bit bolder in recovering assets and bringing Taylor backers who committed war crimes to justice.
12. (C) The international community has just a few tools to pressure the Taylor people into accepting the new reality. The UN sanctions appear to have the intended effect of keeping them somewhat marginalized and fearful of further attempts to strip them of their ill-gotten gains. However, we have regularly heard of travel outside Liberia of those on the travel ban list without prior approval.
13. (C) However, the best we can do for Liberia is to see to it that Taylor is put away for a long time and we cannot delay for the results of the present trial to consider next steps. All legal options should be studied to ensure that Taylor cannot return to destabilize Liberia. Building a case in the United States against Taylor for financial crimes such as wire fraud would probably be the best route. There may be other options, such as applying the new law criminalizing the use of child soldiers or terrorism statutes.
14. (C) The peace in Liberia remains fragile, and its only guarantee is the robust and adaptable UNMIL presence. The GOL does not have the ability to quell violence, monitor its borders or operate independently to fight crime. A free Taylor could tip the balance in the wrong direction. THOMAS-GREENFIELD

A 15 April 2009 dispatch from ‘Gallagher’ of the US Embassy in The Hague reports on the Charles Taylor trial. It relays rumours that the judges of the trial were delaying the proceedings.

Wednesday, 15 April 2009, 15:00
C O N F I D E N T I A L THE HAGUE 000247 
EO 12958 DECL: 04/15/2019 
REF: A. REF: A) 2008 THE HAGUE 00021 B. B) 2008 THE HAGUE 00226
Classified By: Legal Counselor Denise G. Manning per reasons 1.5(b, d).

1. (SBU) On February 27, 2009, the Special Court for Sierra Leone (SCSL or Court) took another step toward completing its work when the Prosecution rested its case against former Liberian President Charles Taylor -- the last SCSL case at the trial stage. The Court could potentially complete its work before the end of 2010. A number of open issues, however, may affect timing, including the start date and length of the Taylor Defense case. Timing may be particularly important given expected funding shortfalls and the possible loss of courtroom space this coming September. Additionally, the current Registrar, Herman von Hebel (Netherlands), has resigned effective June 1, and his successor will inherit a host of difficult issues and a complex transition during the final days of the Court’s operations.
2. (U) A Trailblazing Court. The hybrid SCSL, created in 2002 through an agreement between the United Nations and the Government of Sierra Leone (GOSL) and funded entirely by voluntary contributions, has jurisdiction over those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in Sierra Leone after November 30, 1996. Although established almost ten years after the creation of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), the SCSL is poised to complete its work before these tribunals. The SCSL has also been the first internationalized criminal tribunal to: 1) issue an indictment for an African head of state (Liberian President Charles Taylor); 2) enter convictions for the crime of recruiting and using child soldiers; and 3) successfully prosecute forced marriage as a crime against humanity and intentional attacks on U.N. peacekeepers as a serious violation of international humanitarian law.
3. (U) Last Trial Standing. In 2003, the SCSL indicted Charles Taylor, the leader of the National Patriotic Front of Liberia from 1989 to 1997 and the President of Liberia from 1997 until the 2003 indictment. The indictment alleges Taylor’s deep involvement in the Sierra Leone conflict including his role in arming, training and acting in concert with the RUF and in trafficking the Sierra Leonean &blood diamonds8 that fueled and financed the fighting. The SCSL charged Taylor with eleven counts, including, inter alia, terrorizing the civilian population, unlawful killings, sexual violence, abductions and forced labor, and conscripting child soldiers.
4. (SBU) Status of Trial. As the only ongoing SCSL trial, the Taylor trial is the linchpin to the SCSL completing its work. From April 6-9, 2009, the Court held the &judgment of acquittal8 hearing, with Defense arguing for acquittal on all of the charges. (Comment: In the &judgment of acquittal8 hearing, the Court considers whether Prosecution Qacquittal8 hearing, the Court considers whether Prosecution has presented any evidence that could sustain conviction on the charges, acquitting only if Prosecution has presented &no evidence8 to sustain the charge. End Comment.) In this hearing, Defense acknowledged that crimes had occurred in Sierra Leone but argued that the Prosecution had failed to 1) present evidence linking Taylor to those crimes and 2)establish that Taylor had been part of a joint criminal enterprise (JCE) because, if a JCE existed, it existed before November 30, 1996, the date at which the temporal jurisdiction of the SCSL begins. The Prosecution responded to these arguments by summarizing Taylor,s responsibility for the crimes and pointing to Taylor,s liability for JCE crimes committed after November 30, 1996, even if the planning of the JCE took place before that date. (Comment: The Court will most likely not issue its Rule 98 decision in April, especially since the Judges may recess through May. An acquittal does not seem likely. End Comment.)
5. (SBU) Next Up: Defense Case. A contact in the Registry has indicated that Defense will likely request three months to prepare for trial and four months to present its case. If the Court grants this request, the Defense case may start at the end of August. However, the same Registry source predicts that the Trial Chamber may order Defense to begin its case as early as June, working through July and August with a possible recess in September. One wild-card factor, however, is the Defense,s pending interlocutory appeal arguing that the Prosecution failed to properly plead the JCE theory of liability. The Trial Chamber may not schedule the Defense case before the appeals decision so the Defense knows which mode(s) of liability it must defend against. (Comment: Currently, the Registry’s budget milestone document projects an October 31 trial termination date, a March 2010 judgment, sentencing in April 2010, and the conclusion of appeals in October 2010. If, however, the Defense case starts in August, the timeline could be pushed back by approximately two months. End Comment.)
6. (U) Spill-Over Timing Effects. A delay in the timing for the Taylor trial may create additional challenges. First, the International Criminal Court (ICC), the location of the Taylor trial, has informed the SCSL that it will need its second courtroom as of September 2009. (The ICC scheduled its second trial to start September 24th, and will likely need the courtroom prior to September 24th for pre-trial work). Back-up options explored by the Registry include finding other space or working during gaps in the ICC schedule. Second, according to Registry sources, each additional month of trial time costs approximately one million dollars.
7. (C) Judges Slowing Things down? Further muddying timing predictions, Court employees have intimated that the Trial Chamber could work more expeditiously. The Taylor Chamber consists of three judges who take turns presiding: Justice Richard Lussick (Samoa), Justice Teresa Doherty (Northern Ireland) and Justice Julia Sebutinde (Uganda), along with an alternate judge, Justice El Hadji Malick Sow (Senegal). A couple of Court employees have grumbled that when the last Prosecution witness testified on January 30, 2009, the Court still had 11 outstanding motions, some over a year old. Additionally, one Chamber contact believes that the Trial Chamber could have accelerated the Court’s work by excluding extraneous material and arguments. Moreover contacts in the Prosecution and the Registry suggest that Justice Sebutinde may have a timing agenda. They think she, as the only African judge, wants to hold the gavel as presiding judges when the Trial Chamber announces the Taylor judgment. Reportedly her next stint as presiding judge begins in January.
8. (SBU) Expedited Appeals? The Appeals Chamber, with one empty seat, consists of President Renate Winter (Austria); Vice President Jon Kamanda (Sierra Leone); Justice George Gelaga King (Sierra Leone); and Justice Emmanuel Ayoola (Nigeria). President Winter reportedly has indicated that the Appeals Chamber intends to expedite any Taylor trial Qthe Appeals Chamber intends to expedite any Taylor trial appeals. Up for election in May, Winter may not, however, preside over the Appeals Chamber for any Taylor trial appeals, reportedly she will step down after the RUF appeal if she is not re-elected President.
9. (SBU) Drama-Bound Defense Case. A British Queen’s Counsel, Courtenay Griffiths, heads Charles Taylor,s top-notch and quick-tongued defense team, which reportedly finds itself in the midst of identifying and proofing witnesses. All signs indicate that Taylor himself will take the stand as their first witness possibly staying in the box for 6 to 8 weeks, and based on Defense’s actions to date, the Defense team will likely argue that although the crimes may have occurred, Taylor has no link to the crimes.
10. (C) Funding Shortfall. The Registry fears that the Court will run out of money as early as next month, although an expected Canadian USD 6 million contribution would keep the Court financed until early July 2009. In a marathon campaign, Registrar Von Hebel attended 250 meetings in 15 months to drum up funds from potential donor countries, but with, according Von Hebel, little traction, due to donor fatigue, the difficult economic situation, and contributions going to other tribunals (e.g., the Special Tribunal for Lebanon (STL) or the Extraordinary Chambers in the Courts of Cambodia). Von Hebel wants to make another run at the Arab countries of Saudi Arabia, Qatar, Kuwait, and the United Arab Emirates. He also believes that a letter from U.N. Secretary General Ban Ki-Moon asking countries to contribute might help open wallets. According to Von Hebel, when Ban sent out a similar letter in 2007, a number of countries made first-time donations. In addition, a couple of traditional donor countries have advised him they may need a similar letter in order to donate this year.
11. (U) Cost-cutting Measures: Concerned about the looming financial crisis, the Registry has undertaken cost-saving measures, reducing staffing costs by downsizing, incorporating liquidation clauses in contracts, and encouraging The Hague staff to use leave during the break between prosecution and defense cases. The Registry also plans to hand over the Freetown facilities to the GOSL in July 2010, reserving some space for its own continued use. Finally, Registry may look to consolidate the Appeals Chamber and the Taylor trial operations in The Hague, after the Appeals Chamber finalizes the RUF appeal.
12. (SBU) Help from Washington. The Registry may also seek USG’s assistance on financial issues. First, it may press the USG not to reduce its FY2009 contribution by 2 million, but to stay at last year’s level of 9 million USD. (Comment: The extra sum would not solve the Court’s immediate financial problem, since the USG generally contributes in the fall. End Comment.) Second, the Registry may ask for USG political support in the form of demarches to Arab countries, impressing upon the targeted Arab countries the critical nature of the SCSL’s financial situation.
13. (SBU) Registrar Musical Chairs. On April 8, 2009, the Court announced Registrar von Hebel’s resignation, effective as of June 1, 2009. Von Hebel will assume the Deputy Registrar position at the newly established Hague-based STL. (According to Embassy contacts, STL offered Von Hebel the position at the insistence of and to placate the Dutch, who believe the Dutch ICTY Registrar had been treated unfairly when the ICTY President unexpectedly declined to renew his contract). Given that the STL Registrar Robin Vincent (U.K.) recently resigned, Von Hebel may eventually step into Vincent’s shoes. Von Hebel is also tying up as many SCSL loose ends as possible, including signing a sentence-enforcement agreement with the Government of Rwanda. In terms of a successor Registrar, a Registry contact believes that the current Deputy Registrar Binta Mansaray (Sierra Leone) will surface as a strong candidate.
14. (SBU) A Larger Role for The Hague? Although currently headquartered in Freetown, Sierra Leone, the Registry has toyed with the possibility of locating any Residual Mechanism Qtoyed with the possibility of locating any Residual Mechanism ) or parts thereof ) in The Hague. For instance, Von Hebel believes that the Court may need to move its archives out of Sierra Leone in order to properly maintain and secure them. The City of The Hague has indicated its willingness to provide archiving facilities in connection with the ICTY’s closure. Some have also suggested combining some or part of the SCSL’s residual functions with those of The Hague-based ICTY and the Arusha-based ICTR. A combined residual mechanism might prevent duplication, but it would also face significant hurdles, given SCSL’s structural differences, e.g. funding, oversight mechanism and applicable legal framework. Furthermore, GOSL desires will be key, since a joint GOSL-UN agreement created the Court.

The third is the most recent, dating from 8 January 2010. By then, Prosecutor Rapp had become Ambassador Rapp. The cable reports on a briefing he delivered in Brussels.

Friday, 08 January 2010, 15:40
EO 12958 DECL: 12/22/2019 

BRUSSELS 00000023 001.2 OF 002
Classiires Richard M. Eason for' (D).
1. (C) Summary Ambassador Stephen J. Rapp Belgium would continue to push for the ICC's independent authority to initiate trials of crimes of aggression between states.
End Summary.
MFA Optimistic on Court for S)erra Leone Donation
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2. (C) The Africa team of Director General Renier Nijskens, C/ngo Desk Officer Hugues Chantry, and Foreign MiQister Vanackere's Africa Advisor Karl D'haene met with S/WCI Ambassador Rapp, S/WCI Specia, Assistant Todd Anderson and Poloff Aaron Jensen on December 18. Representatives of the MFA Legal and Peace Building departments were also present. D'haene said he was optimistic that Belgium would make an additional EUR 150,000 contribution to the Special Court for Sierra Leone. He noted Belgium's history of supporting international justice processes and posited that Belgium's new FM Vanackere would continue that policy; the expected closure of the Special Court in 2011 after Charles Taylor's trial made a contribution more likely in his view.
Belgium Interested in DRC Judicial Reform
3. (C) The MFA Africa team was interested in the concept of chambers of mixed composition to deal with war crimes in the DRC raised by Ambassador Rapp. They mentioned Belgium's participation in REJUSCO, the EU justice mission in Congo, and Belgian Technical Cooperation's work on REJUSCO Phase I. They were uncertain who would implement Phase II. They focused on the importance of improving the national justice system, rather than simply building up capacity in the eastern DRC. D'haene was noncommittal on Belgian support for new judicial court structures in the DRC, but said that the GOB would support UNR 1888 (Resolution on Women, Peace, and Security, which includes judicial aspects) and provide expertise to the extent that Belgium had it. He added that sending judges to the DRC would not be too difficult, but questioned whether a larger approach to judicial reform that included two court formats would work in the DRC.
Belgium and the ICC
4. (C) Ambassador Rapp told Legal Department DG Rietjens that the US was proud to regain its observer status at the ICC and said that the U.S. was currently producing a view of its ICC policy. He noted, however, that U.S. ratification of the ICC treaty was no likely. Ambassador Rapp underscored that the U.S. believed only the UNSC should be able to refer cases of crimes of aggression to the ICC and was confident that other UNSC members, including the European members of the P5, France and the UK, would agree. He said the U.S. hoped for consensus in this discussion, and he expressed understanding for Belgian, German, and Greek efforts to push for a broader ICC mandate on crimes of aggression. Rientjens acknowledged U.S. concerns on crimes of aggression, but said that Belgium would continue to push for the ICC to have an independent authority to initiate trials on crimes of aggression. Rietjens praised the U.S. return to observer status at the ICC. He said Belgium and other European nations were excited to be able to have diplomatic discussions with the U.S. about the ICC once again.
5. (U) Ambassador Rapp cleared this message.

Saturday, 18 December 2010

International Criminal Court and Wikileaks

The International Criminal Court moves to centre stage in the latest Wikileaks releases. The headline in today’s Guardian says ‘Sudan leader “stashed $9bn in UK banks”’. The claim originates with the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo”. The cable in question also reports that Moreno-Ocampo suggested that assurances ought to be given to China that is access to oil was not in jeopardy. Here it is:

EO 12958 DECL: 03/23/2019 
Classified By: Ambassador Alejandro D. Wolff, for reasons 1.4 b/d

1. (C)  International Criminal Court Prosecutor Luis Moreno-Ocampo told Ambassadors Rice and Wolff on March 20 that Sudanese President Bashir needed to be isolated. Ocampo suggested if Bashir’s stash of money were disclosed (he put the figure at possibly $9 billion), it would change Sudanese public opnion from him being a ‘crusader’ to that of a thief. Ocampo reported Lloyd's Bank in London might be holding or knowledgeable of the whereabouts of his money. Ocampo suggested simply exposing that Bashir had illegal accounts would be enough to turn the Sudanese against him, "as with Pinochet."
2. (C) Ocampo said Bashir invents conflict to create a better negotiating position, and thought Bashir was using the expulsion of the NGOs to divert attention away from his arrest warrant. Ocampo suggested the U.S. and the international community also needed to push for Bashir's arrest to isolate him. Ocampo likened Bashir's situation to "a bleeding shark being surrounded by other sharks," with no loyalty, only greed, motivating those competing for power. By promoting the possibility of Bashir's arrest, Bashir would be further marginalized within Sudan's ruling elite, Ocampo thought.
3. (C) Ocampo suggested it would be beneficial to reassure China that its access to oil would not be jeopardized. If China believed Bashir was becoming a destabilizing influence, Ocampo said China might be more open to his removal as long as his replacement would guarantee support for China's economic interests.

To my knowledge, Moreno-Ocampo has never made this claim publicly. The Guardian claims Lloyds denies everything.
Other materials released by Wikileaks suggest that the assertions of Moreno-Ocmpao are not always reliable. A dispatch from Alberto M. Fernandez of the Khartoum embassy, dated 11 December 2008, reports on a 7 December briefing by UNAMID's Joint Special Representative Rodolphe Adada. Under the sub-head ‘Ocampo’s Imaginary Numbers’, Fernandez writes:

7. (C) Adada ppoured scorn on the "wildly inaccurate" recent statements of ICC prosecutor Luis Moreno-Ocampo that "5,000 people were being killed each month in Darfur." He added that who would be so naive and ill-informed to believe such a thing" He noted that this would be over a hundred people a day being killed, a level of violence not seen in Darfur for several years (Note: probably not since 2005). Even the horrific Kalma camp massacre of August 25, 2008 which killed 33 innocent people was "one crime on one day, this doesn't happen very often." He mused that such patently absurd and false information put out by Ocampo doesn't make him look very credible in the eyes of those who actually know something about the reality of Darfur.

There’s still more of interest in a report on a visit by a senior Chinese official to Khartoum. The US diplomat says that Chinese concern about the issuance of an arrest warrant against President Bashir was ‘well-founded’, ‘useful and helpful’.

Thursday, 04 September 2008, 10:56
EO 12958 DECL: 08/12/2018 
Classified By: CDA Alberto M. Fernandez, for reasons 1.4 (b) and (d)

1. (C) Summary: During his recent visit to Sudan, Chinese Special Envoy Zhai Jun strongly counseled the GOS to remain prudent in dealing with the threatened arrest warrant for President Bashir and to continue to engage with the international community, according to Chinese Ambassador Li. Zhai even suggested that Sudan contact the ICC itself. Li encouraged the USG to consider shared interests in Sudan,s stability and not to veto a UNSCR postponing the ICC proceedings. CDA Fernandez thanked China for its helpful message to the GOS, and reported that the USG has made no decision whatsoever regarding an Article 16 vote. He emphasized that the USG's primary concern remains tangible improvements in the situation in Darfur, the recent violence by the regime in Kalma Camp was a setback, and thus far the USG sees no reason to postpone ICC action. End Summary.
Special Envoy Zhen,s Message to Khartoum
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2. (C) On September 3, Chinese Ambassador Li Cheng Wen briefed Charge Fernandez on Chinese Special Envoy and Assistant Foreign Minister Zhai Jun,s recent visit to Sudan. Zhai, who is responsible for Africa and the Middle East, inaugurated the new Chinese consulate in Juba and discussed the possible ICC indictment of President Bashir with GOS officials in Khartoum. On the latter issue, Li stated that Zhai expressed grave concern about the negative effect an ICC indictment would have on resolving the Darfur crisis. Zhai found Bashir to be quite receptive.
3. (C) According to Li, SE Zhai praised the GOS for its calm handling of the matter thus far, and encouraged GOS officials to continue to mobilize internally and engage the international community, including the UN Security Council and especially the P-5. Zhai also made a "friendly suggestion" that the GOS consider communicating with the ICC itself, either directly or indirectly. Li expressed hope that such contact could influence and perhaps "curb the next steps" in the ICC process. He stated that the GOC views ICC indictment not only as a political, not a legal matter. As such, it is encouraging the GOS to pursue both legal and political solutions to the problem.
ICC Action Threatens Darfur Progress
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4. (C) Li stated that the GOC is extremely worried about how the ICC indictment will affect in Darfur, asserting that it has hardened the rebels' stance towards peace. He believes that GOS officials now understand the gravity of the situation they have created over the years, and hopes they will heed GOC advice continue to engage with the international community. "Not heating up this matter is in the interest of all parties," he said.
5. (C) CDA Fernandez thanked Li for China,s helpful and useful message to the GOS. He noted that while the United States shares GOC concerns about Sudan,s stability, its primary focus is achieving tangible improvements in the situation in Darfur, especially in regards to humanitarian access. He continued that while GOS contact with the ICC might influence P-5 members France and theUK, it does not by itself concern the United States, which is not a party to the ICC.
6. (C) Li concurred that the GOS could do more to speed up humanitarian access and take other positive actions but cautioned that "only pressuring the Sudanese government is no use." Continued antagonism serves to strengthen the suspicions of hardliners within the NCP that the West is plotting against Sudan, he said. Rather, "we need to engage with them" to help solve the Darfur crisis. Both agreed that there is some anecdotal evidence of regime infighting about what is the best strategy: cooperation or escalation.
7. (C) Li expressed puzzlement at perceived British and French support for ICC Chief Prosecutor Luis Moreno-Ocampo. He stated that "whoever had a role in creating this problem will bear responsibility" if Sudan descends into chaos as a result of the ICC indictment, adding that such an outcome could have been easily forecast. He declared that destabilization of Sudan is in no one's interest, adding that "to help Sudan is to help ourselves. I hope the British and French understand this philosophy." He observed that French companies have oil interests in Sudan as well as in Chad. . CDA Fernandez agreed that an ICC indictment will present great challenges to achieving peace in Darfur, but commented that the decision to indict President Bashir was may bave been made by an overzealous prosecutor and is not the result of "high politics" or a conspiracy by the West. He noted President Bashir's sweeping claims to want to change the situation in Darfur for the better, "we want to see tangible results, not words or process."
U.S. Should Not Block Delaying ICC Action
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8. (C) CDA Fernandez' meeting with Li followed a flurry of erroneous media reports that China is expected to "veto" the issuance of an arrest warrant for President Bashir. (Note: For example, the newspaper Akher Lahza ran a story with the headline "China Does Not Rule Out Veto To Invalidate Ocampo's Allegations," which noted that "President Bashir received a verbal message from his Chinese counterpart expressing a his country's support for Sudan regarding Ocampo's allegations," but that "Peking denied reaching the stage of using a veto to invalidate the ICC prosecutor's procedures because the case is still in its primary phase." Another daily, Al-Rae'd, ran a headline "Chinese veto awaits Ocampo." End Note.) Li acknowledged that these reports suggest a fundamental misunderstanding of role of Article 16 of the ICC Statute by the Sudanese public, and that it is a P-3 veto of a deferral of the ICC proceedings that GOS must worry about. He urged the USG to think of its and Chinese "mutual interests" in Africa when making a decision. "Stability is in the interests of all parties," he said. "It's what we should work for in the New World Order."
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9. (C) Li's concern that the issuance of an arrest warrant for President Bashir could have profound destabilizing effects are well founded. Combined with the end of the rainy season and renewal of rebel activity on both sides of the Chad-Sudan border, the ICC indictment could set off a chain reaction of violence and instability. China's encouragement of GOS internal mobilization and international engagement, including with the ICC, is both useful and helpful, but its unclear whether the NCP even has the capability, let alone the willpower, to take any action towards solving the crisis if it can decide what those steps should be.
Another story on the Wikileaks materials, in the Guardian, indicates US unease about Moreno-Ocampo when he was first elected. Unease was expressed because of the suggestion that the Prosecutor might proceed with an investigation in Iraq, but adds that ‘privately’ he had indicated he was not planning to go ahead.
One cable, sent in July 2003, three months after Luis Moreno-Ocampo was elected as chief prosecutor, offered an "early glimpse" into his stance and reveals American unease about the possibility that he could pursue cases over British actions in Iraq.
"Less clear are [Ocampo's] views on Iraq," the cable states. "Ocampo has said that he was looking at the actions of British forces in Iraq -- which … led a British ICTY prosecutor nearly to fall off his chair."
"Privately, Ocampo has said that he wishes to dispose of Iraq issues (ie. Not to investigate them.)"
The cables also attempt to cast off early remarks about Iraq by Ocampo – who is from Argentina – as a language issue. "Some Embassy contacts also suggest that Ocampo's mediocre English skills may have given his public remarks a less nuanced … tenor than intended," the cable states.

I could not find the cables to which this report refers. That the Prosecutor would signal to American  diplomats that he planned to avoid proceeding with charges in Iraq is, if true, very disturbing.
Finally, there is a report from the US Embassy in Brussels on a briefing by the Ambassador for War Crimes Issues, Steve Rapp.

Friday, 08 January 2010, 15:40
EO 12958 DECL: 12/22/2019 

BRUSSELS 00000023 001.2 OF 002
Classiires Richard M. Eason for' (D).
4. (C) Ambassador Rapp told Legal Department DF Rietjens that the U.S. was proud to regain its observer statuts at the ICC and said that the U.S. was currently producing a review of its ICC policy. He noted, however, that U.S. ratification of the ICC treaty was not likely. Ambassador Rapp underscored that the U.S. believed only the UNSC should be able to refer cases of crimes of aggression to the ICC and was confident that other UNSC members, including the European members of the P5, France and the UK, would agree. He said the U.S. hoped for consensus in this discussion, and he expressed understanding for Belgian, German, and Greek efforts to push for a broader ICC mandate on crimes of aggression. Rientjens acknowledged U.S. concerns on crimes of aggression, but said that Belgium would continue to push for the ICC to have an independent authority to initiate trials on crimes of aggression. Rietjens praised the U.S. return to observer status at the ICC. He said Belgium and other European nations were excited to be able to have diplomatic discussions with the U.S. about the ICC once again.
5. (U) Ambassador Rapp cleared this message.
Of course, the US overestimated the determination of France and the UK to resist proposals that would give the Court the authority to proceed with prosecutions for the crime of aggression absent Security Council authorization. At the June Kampala Review Conference, article 15bis of the Rome Statute was adopted. When it enters into force, probably in 2017, the Prosecutor will be empowered to proceed with an aggression case even if the Security Council is inactive.
Some people have said that there is little that we do not know in the Wikileaks materials. But today's batch is full of information that provides helpful insight into the position of the United States and China, not to mention the activities of the Prosecutor.  

Friday, 17 December 2010

European Court of Human Rights Ruling on Abortion in Ireland is a Big Disappointment

The Grand Chamber of the European Court of Human Rights has issued its long-awaiting ruling on three Irish abortion cases, known as A, B & C v. Ireland. Essentially, the judgment upholds the existing Irish legislation dealing with abortion, which is among the strictest in the world. Not only is abortion forbidden by legislation in Ireland, the matter is also subject to a constitutional prohibition. There is only one exception: when the woman’s life is at stake.
In two of the cases before the Court, A and B, there was no issue of the woman’s life being threatened. These were sad cases of poorly-informed women who went abroad to have abortions and then suffered terrible medical and personal difficulties upon their return to Ireland. They are typical of much of the terrible hardship that Irish women undergo in order to obtain abortion. The Court dismissed the claims of A and B. Six of the seventeen judges disagreed, writing a dissent that held Irish law to be too restrictive and a violation of the rights of A and B under the circumstances. In particular, the dissenters concluded there was a European consensus favouring broader access to abortion, and that this should guide the Court in its assessment.
The third case, C, involved a threat to the life of the woman. The Court concluded that there had been a violation of her right to privacy, protected by article 8 of the Convention, because the Irish regulatory framework did not adequately address her situation and provide her with mechanisms in which to exercise her rights effectively. In other words, the Court said that Ireland did not even respect its own laws, and did not adequately provide for the situation where a woman’s life is in danger. It wrote: ‘the authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland’ (para. 267).
This is a ‘victory’ for C, and it will no doubt improve the situation for a tiny sub-set of Irish women – those whose lives are threatened by a pregnancy and who fit within the narrow exception to the prohibition – but it barely makes a dent in the real problem. Supporters of ‘choice’ have been putting a brave face on it. The Irish Family Planning Association hailed the decision as a ‘landmark’, and Human Rights Watch praised it as well. I’m not nearly as enthusiastic. I think the judgment is a huge disappointment.
Essentially, the Court said the issue of abortion remains within Ireland’s margin of appreciation. This is an unwritten limitation that the Court has read into the European Convention, and the concept is well anchored within its jurisprudence. When there is insufficient consensus on a particular issue within the member states of the Council of Europe, the Court will decline to find a violation even where in an objective sense the rights of the applicant may have been breached. It is always a source of great frustration to applicants, and those who see the Court as an instrument of social change. But it is also a wise concept and certainly has its place in the Court's analysis, provided that it does not give any particular state an effective veto on the rights of individuals that are protected at the international level.
In this case, the Court conceded that ‘there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law‘ (para. 235). But the Court said this was not enough. The Court noted that Irish law does not prohibit women travelling abroad for abortion, and considered this to be relevant in assessing the scope of the prohibition. It also invoked ‘the profound moral views of the Irish people as to the nature of life’ (para. 241). It acknowledged that the situation was ‘psychologically and physically arduous’ for A and B, but insufficient to constitute a violation of their rights under the Convention.
The Court referred to the referendum on the Lisbon treaty as evidence of the popular support for the prohibition of abortion within Ireland. Of course, the Lisbon treaty had nothing whatsoever to do with abortion. However, the Irish Government submitted a study that referred to concerns about abortion as being one factor that may have influenced Irish people to vote against the treaty, by a slight majority (para. 225). On this, I think the Court is overstating the significance of the Lisbon treaty referendum. I recall posters in Galway saying ‘stop stag hunting, vote no to Lisbon’. There were reports of people who were afraid that Lisbon would result in the return of capital punishment, or who were concerned that their sons (and daughters) would be sent to join the EU army in Iraq. The Court shouldn’t have made so much of the first Lisbon referendum, which was an embarrassing manifestation of irrationality and ignorance in the Irish electorate.
Rather, it might have attached real importance to the fact that Irish women obtain abortions in large numbers. They are forced to do this outside the country. But they do it nevertheless. Often, they do it with the knowledge, sympathy and financial support of friends and family, and in this way the practice is condoned by large numbers of people. In other words, abortion is widely accepted in Ireland as a matter of fact. It is appalling that women continue to suffer, as did A and B, because of this hypocritical situation whereby the State turns a blind eye to a widespread practice. Ireland does this largely out of deference to the views of a church that attaches great importance to the rights of unborn children, but that has a disgraceful record in the treatment of children after they are born, as recent inquiries have shown.
Ireland's abortion legislation amounts to discrimination against women and it is a pity that the European Court of Human Rights could not do a better job of addressing this.

Wednesday, 15 December 2010

Dick Marty Corroborates Carla Del Ponte’s Claim that Kosovar Nationalists Murdered Serbs for their Organs

A report, made public today by Dick Marty, the member of the Parliamentary Assembly of the Council of Europe who exposed the secret US detention centres and the rendition flights, confirms the charges of Carla Del Ponte that forces associated with the Kosovo Liberation Army took Serb prisoners into Albania where they were murdered for their organs, which were subsequently trafficked through organized crime networks.
The opening paragraph of the report explains the background:
1.      In April 2008 Madam Carla Del Ponte, the former Chief Prosecutor before the International Criminal Tribunal for the former Yugoslavia (ICTY), published a set of memoirs, co-authored with Chuck Sudetic, on her experiences within the tribunal.  The book initially came out in Italian (“La caccia – Io e i criminali di guerra”), then in translation, notably in French (“La traque, les criminels de guerre et moi”). In the book, almost ten years after the end of the war in Kosovo, there appeared revelations of trafficking in human organs taken from Serb prisoners, reportedly carried out by leading commanders of the Kosovo Liberation Army (KLA). These claims were surprising in several respects and have provoked a host of strong reactions. They were surprising, in the first place, because they emanated from someone who exercised the highest official responsibilities, at the very heart of the judicial system tasked with prosecuting the crimes committed in the course of the conflicts that ravaged the former Yugoslavia Furthermore, and above all, they were surprising because they revealed an apparent absence of official follow-up in respect of allegations that were nevertheless deemed serious enough to warrant inclusion in the memoirs of the former Prosecutor could hardly have ignored the grave and far-reaching nature of the allegations she had decided to make public.
The Report is quite damning with respect to the Kosovo Liberation Army:
29.       The overall picture that emerges from our inquiry differs dramatically in several respects from the conventional portrayal of the Kosovo conflict.  Indeed, while there was certainly an intensely fought battle for the destiny of the territory of Kosovo, there were very few instances in which opposing armed factions confronted one another on any kind of military frontlines.
30.       The abhorrent abuses of the Serb military and police structures in trying to subjugate and ultimately to expel the ethnic Albanian population of Kosovo are well known and documented.
31.       The evidence we have uncovered is perhaps most significant in that it often contradicts the much-touted image of the Kosovo Liberation Army, or KLA, as a guerrilla army that fought valiantly to defend the right of its people to inhabit the territory of Kosovo.
32.       While there were undoubtedly numerous brave soldiers who were willing to go to the warfront, in the face of considerable adversity, and if necessary die for the cause of an independent Kosovar Albanian motherland, these fighters were not necessarily in the majority.
33.       From the testimony we have managed to amass, the policy and strategy of some KLA leaders were much more complex than a simple agenda to overpower their Serb oppressors.
34.       On the one hand, the KLA leadership coveted recognition and support from foreign partners including, notably, the United States Government.  Towards this end the KLA’s internationally well-connected “spokesmen” had to fulfil certain promises to their partners and sponsors, and / or adhere to particular terms of engagement that were the de facto conditions of their receiving support from overseas.
35.       On the other hand, though, a number of the senior commanders of the KLA have reportedly not failed to profit from the war, including by securing material and personal benefits for themselves.  They wanted to secure access to resources for themselves and their family / clan members, notably through positions of power in political office, or in lucrative industries such as petroleum, construction and real estate.  They wanted to avenge what they perceived as historical injustices perpetrated against the Albanian population in the former Yugoslavia And many of them were seemingly bent on profiteering to the maximum of their potential while they had operational control of certain lawless territories (e.g. in parts of southern and western Kosovo), and leverage – especially in terms of financial resources – with which to negotiate footholds for themselves in other territories (e.g. in Albania). 
36.       The reality is that the most significant operational activities undertaken by members of the KLA – prior to, during, and in the immediate aftermath of the conflict – took place on the territory of Albania, where the Serb security forces were never deployed.
Marty proposes a draft resolution for the Parliamentary Assembly, notes 'the appalling crimes committed by Serbian forces, which stirred up very strong feelings worldwide, gave rise to a mood reflected as well in the attitude of certain international agencies, according to which it was invariably one side that were regarded as the perpetrators of crimes and the other side as the victims, thus necessarily innocent.  The reality is less clear-cut and more complex."


Inside the Museum

Planting a tree in commemoration

This week I have been in Yerevan attending an international conference on the Armenian genocide. Speakers hvae included Yves Ternon, Leandro Despouy, Tanar Akçam, Frank Chalk and Peter Balakian. My paper was on the retroactivity issues, including the validity of using the term 'genocide' to describe events in 1915, three decades before the word was invented and the crime codified in the Convention.
Today, we visited the monument and museum to the Aremenian genocide at Tsitsernakaberd, which is just outside Yerevan. From the hilltop, you can see Mount Ararat in the distance, on the other side of the border with Turkey. We placed flowers around the eternal flame in the memorial and then planted a tree as a sign of commemoration.
Plaque honouring Franz Werfel, who wrote The Forty Days of Musa Dagh about heroic resistance by Armenians

US Appeals Court Decision on Armenian Genocide

Here is an interesting decision from the 9th Circuit Court of Appeals (California, I think) concerning a class action lawsuit filed by Armenian survivors or their descendants against German insurance companies. The cases were subject to statutory limitation, of course, but the California legislature waived the limitation until the end of 2010. Then, the insurance companies challenged the legislation as being unconstitutional, because it interfered with US foreign policy which was, according to the judge at first instance, one of denying that genocide took place in 1915. The plaintiffs appealed successfully. The decision notes that some 40 state legislatures in the US have adopted declarations acknowledging the Armenian genocide. It even refers to statements by the President before he was elected. There is also a comment about the case on Jurist.
Thanks to Meg deGuzman. 

Monday, 13 December 2010

Right to a Name Protected by Right to Privacy

The UN Human Rights Committee has concluded that  language legislation imposing a 'Latvian-sounding name and surname' on all citizens violated the right to private life. Raihman  v. Latvia, and the Views were agreed recently although they have yet to be issued formally. I have received a copy of them, but each page is in an individual file and it is complicated to post on the blog. If someone cannot wait, I will be happy to send them all of this by e-mail.
Here is a comment from Prof. Fernand de Varennes on the recent ruling:
I am very pleased - and indeed relieved - with this conclusion for a number of reasons. On a personal level, I have to admit that I was instrumental in “inspiring” the complainant, Mr Raihman, to submit his case to the UN Committee almost eight years ago after a speech I made in Latvia on language rights. Mr Raihman became a citizen at around 40 years old and was then forced to have a name and surname in Latvian that changed his original Russian and Jewish name and surname. He started legal proceedings and eventually lodged a communication to the UN Human Rights Committee with the help of the Latvian Human Rights Centre.
From a legal point of view, this case clarifies the issue of whether a name/surname can be protected in its linguistic form under the right to private life. Previously the European Court of Human Rights had actually denied that similar legislation – though very different facts - amounted to a violation of the right to private life in the cases of Mentzen/Mencena v. Latvia and Kuhareca v. Latvia.
As surprising as this may sound, the European Court’s comments seemed at one point to suggest that because others have a right to use the official language of the country, it was appropriate that all citizens be given – and forced to use for official purposes – a “Latvianised” name/surname.  Despite a number of European documents and treaties indicating that minorities have the right to their own name and surname in their own language, the European Court never made reference to such standards, though in a sense the other cases it had to consider were not the strongest and didn’t raise the kind of facts which were probably needed.
For all the talk of European democracies being respectful of the identity and private life of individuals, some other comments of the European Court seemed not to reflect this, stating at various points that it should be left to states such as Latvia (through the doctrine of ‘margin of appreciation’) to deal with the use of an official language in relation to the name/surname of individuals. One would have thought the lessons from history where oppressive governments sought to extinguish the presence of ‘others’ by seeking to erase their names/surnames in other languages from the public sphere was long gone, but the European Court did not seem to completely reject such an option in the Latvian cases, though to be fair it did not exactly condone such measures either.
I worked from the very beginning with Mr Raihman and his team to develop the legal arguments and to illustrate the consequences of the restrictions on the use of Mr Raihman’s Russian first name and Jewish/Yiddish family name. The UN Committee’s views in Raihman v. Latvia are not published yet, but they have accepted the legal arguments which we developed, though unfortunately did not comment specifically on the arguments around the discriminatory impact of the difference of treatment on the ground of language. The communication will be released digitally in the near future, but I can forward the communication in jpeg format to anyone interested.
I've copied here the key page of the decision, with the reasoning of the Committee