Flattery Will Get You Nowhere

From time to time, people say nice things about this blog. Sometimes not so nice.
I've been informed today of a really fine form of flattery: the Iranian government has blocked access to the blog!
They must be getting nervous about news from Tunis, Cairo, Tripoli and elsewhere. Everybody knows that it is impossible to effectively prevent the spread of information by internet. I'm told that in China during the Olympics the universities asked their students to sign an undertaking that during the Games they would not consult proxy (that is, illegal) websites that provided access to material that was otherwise blocked. When I tell people in China that I am concerned about access to the blog, they just smile knowingly and indicate that the information is accessible, but with difficulty. This must also be the case in Iran.

Trial Observation Task Force Website of American Bar Association

The American Bar Association has developed a trial observation task force website, with much of interest about this important dimension of human rights monitoring.

Libya Referred to International Criminal Court by Security Council

A few hours ago, the United Nations Security Council unanimously referred the situation in Libya to the International Criminal Court. Here is the text of the Security Council press release. The measure is likely to have an important deterrent effect on the crumbling regime in Libya. Even if Gaddafi himself is not chastened by the threat of prosecution, those that remain around him will be. It is a great development for the Court, but also a test. Now it must inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis. In the past, for example when the Security Council referred the situation in Darfur (in March 2005, Resolution 1593), the Prosecutor took nearly two years before laying charges. I think that something more immediate is expected.
The people of Libya cannot wait two years for the wheels of justice to start turning. Let it be recalled that in 1999, as war raged in Kosovo, the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, Louise Arbour, made an application for an indictment against Serb President Milosevic within a matter of a few weeks. And the Tribunal issued the indictment within a day or so, together with an order freezing his assets. This is the sort of urgency that the International Criminal Court now needs to display.
Today's Resolution is significant because the United States voted in favour. In 2005, it abstained in the vote.
But if the Security Council will move in this way given reports of devastating attacks on civilians, why did it not move in the same way the last time there were such attacks in the same region? I'm referring to Gaza and operation Cast Lead which took place only two years ago, and only hundreds of kilometres away from where Gaddafi is currently massacring his own people.

China Reduces Scope of Death Penalty

On Friday, the Standing Committee of the National People's Congress reduced the scope of the death penalty in China by removing it for thirteen crimes, according to a report from Xinhuanet. The death penalty still remains applicable for fifty-five crimes. This is the first time that the number of crimes for which the death penalty may be applied has been reduced since 1979.

The crimes concerned are all non-violent offences, and include smuggling cultural relics, gold, silver, and other precious metals and rare animals and their products out of the country; carrying out fraudulent activities with financial bills; carrying out fraudulent activities with letters of credit; the false issuance of exclusive value-added tax invoices to defraud export tax refunds or to offset taxes; the forging or selling of forged exclusive value-added tax invoices; the teaching of crime-committing methods; and robbing ancient cultural ruins.

Unfortunately, we do not know what this means in practice because we have no statistics either about the total number of executions in China or the crimes for which they are imposed. It may be that this reform of the criminal law reduces the numbers of executions significantly. But it may also be the case that the reform is purely cosmetic with little practical consequences. I cannot recall the last time I heard of someone being executed in China for ‘smuggling cultural relics’, ‘teaching of crime-committing methods’ and ‘robbing ancient cultural ruins’

This reform is to be welcomed and it is a sign of changing attitudes within China. There is lots of evidence to suggest that absolute numbers of executions in China are declining to an important degree. This makes sense. China is simply part of a trend to lowering the death penalty in countries that retain it. The same can be seen in Singapore, Egypt and the United States.

Thanks to Dang Heping.

Gaddafi and the Special Court for Sierra Leone: Did UK let Gaddafi Off the Hook?

David Crane is in the centre. From left, Robert Petit, Steve Rapp, David, Richard Goldstone and Andrew Cayley. I took the photo last August at the annual Chautauqua meeting of international prosecutors, past and present. It is taken outside the Robert Jackson Centre.

Yesterday, a curious footnote to the work of the Special Court for Sierra Leone appeared in The Times, which I was reading by chance (it is not my favourite British paper, as readers of the blog will be aware) on the plane to Belarus, where I am delivering a lecture on the death penalty.
The story is entitled 'Prosecutor Reveals How Britain let Faddafi Off'. It is written by Soraya Kishtwari and is on p. 11 of yesterday's paper. It begins

Britain put pressure on an international court not to indict Colonel Gaddafi for war crimes despite evidence that implicated him in the maiming of more than one million people in Sierra Leone, the Chief Prosecutor on the case has claimed.
The United Nations Security Council, which counts Britain among its permanent members, had evidence linking Colonel Gaddafi to war crimes in Sierra Leone as early as 2003.
Prosecutors named Colonel Gaddafi in the indictment of Charles Taylor, the former President of Liberia who is currently on trial for alleged war crimes. However, due to resistance from UN member states, including Britain, the decision was made not to indict the Libyan leader.
Professor David Crane, of Syracuse University, who was the Chief Prosecutor at the Special Court of Sierra Leone between 2002-05, said: 'It was my political sense, dealing with senior leadership in the United Kingdom, United States, Canada, United nations, and the Netherlands, that this would not be welcome,' he said. 'This [Colonel Gaddafi's involvement]is not speculation on my part. We named and shamed him in the actual indictment.

Indicting Gaddafi would have been the 'death knell' for the courts as the countries objecting would have pulled funding, Professor Carne added. Asked why he believed there was opposition from the international community to act on the evidence he had uncovered, he said: 'Welcome to the world of oil.'
Professor Crane said Colonel Gaddafi was instrumental in planning the conflict in Sierra Leone, which went on for ten years from 1991 and resulted in the deaths of 50,000 civilians and left hundreds of thousands displaced.
His view is corroborated by his colleague at the time. Sir Desmond de Silva, QC, one of Britain's leading barristers and an authority on human rights confirmed that Colonel Gaddafi's primary role in the war had been that of trainer and financier.
Jack Straw, who was Foreign Secretary between 2001 and 2006, expressed surprise at the suggestion that the British Government had sought to influence the investigations. he said he had 'absolutely no recollection of knowing any involvement by the UK in putting pressure of any kind on anyone'.
In a statement, the Foreign office said: 'The UK is committed to ensuring there is no impunity for those alleged to have committed the most serious crimes of international concern.' 

This is a rather stunning bit of news. If I were Charles Taylor's counsel, I'd be working on a new motion. The suggestion that the prosecutions at the Special Court of Sierra Leone were influenced politically, through threats to withdraw funding, is quite damning. I have always believed that the funding situation of the Court was totally unacceptable, and inconsistent with the independence and impartiality required of an international court (or any court). In effect, the Court has depended upon voluntary contributions from governments rather than relying upon the general budget of the UN, as is the case with the Yugoslavia and Rwanda tribunals.

The UN Secretary General tried to secure up-front funding from the backers of the Court, but they would not provide this adequately. The reason was obvious. They wanted to keep the Court on a drip feed so that they could influence its activities
The suggestion that indictments are used to 'name and shame' individuals who are not actually prosecuted is an interesting one, about which readers of the blog may have some thoughts.

 I'm all in favour of charging Gaddafi (before the International Criminal Court) for recent atrocities in Libya. But for the record, I am not sure there is much of a case against him with regard to Sierra Leone. I served as one of the three international members on the Sierra Leone Truth and Reconciliation Commission, which worked during the same period that David Crane was Prosecutor of the Court. We did not find much evidence of Libyan responsibility, and nothing specific against Gaddafi. Our report indicated that young Sierra Leoneans had gone to Libya in the late 1980s for training. My impression was that this was more like summer camp for revolutionaries. During the 1990s, there was some evidence of financial support for the Revolutionary United Front from the Libyans, but we are talking about modest sums. For example, the Commission found a document whereby the RUF thanked the Libyans for a gift of $500,000. Small beer, really. And there were some reports of arms being transshipped through Libya. Of course, there is little doubt that Gaddafi supported the RUF. But to get a conviction at the Court, it would have to be shown that he knowingly participated in crimes against humanity or war crimes, and we found no evidence of that.

Here are the relevant excerpts from the Report of the TRC. As you can see, they don't add up to much against Gaddafi:

.

Volume 3A … 23. In this climate, the first connections on an institutional level between ‘revolutionaries’ in Sierra Leone and representatives of the Government of Libya were established. The earliest channels to be carved out were for FBC students, including two successive student Presidents, to attend conferences in Tripoli at which Pan-African ideals and the socialist philosophies of the Green Book were discussed. Upon the expulsion of 41 students – including the incumbent student President Alie Kabba – and three of their lecturers from Fourah Bay College in March 1985, however, the stakes were raised to the point where the youthful revolutionaries felt that they had nothing left to lose. 24. It appears that upon one visit to Tripoli in the wake of these expulsions, a delegation led by Alie Kabba petitioned successfully for what had previously been regarded as a last resort – provisions for commando training to be made for Sierra Leonean revolutionaries. The acceptance of such a proposal by Libya is probably best understood in the first instance as an indication of that state’s broader and longer-term, albeit complementary, objective of establishing an African-wide ‘Green Army’ to take on the perceived global hegemony of the United States and in support of revolutionary movements globally. There is no concrete evidence in the Commission’s findings that Libyan President Colonel Muammar Ghaddafi harboured any inherent will to thrust war upon Sierra Leone in particular, although the regime of Joseph Saidu Momoh was perceived as pro-Western and its overthrow would certainly have been welcomed by Libya as a desirable corollary benefit. … 35. In the process of mobilising resources, both human and financial, Taylor established relationships with supportive foreign Governments and their ‘revolutionary-minded’ leaders: first Burkina Faso and its President Blaise Campoare; then Libya and its President (Colonel) Muammar Ghaddafi. The latter link, as intimated in the foregoing analysis, was to prove especially formative for Taylor as he developed an “ideological” and strategic basis on which to prosecute his aggressive agenda. Vol. 3B External Actors in the Pre-Conflict Period up to 1991 and in Phase I of the Conflict: March 1991-1993 Libya: preparing revolutionaries in pursuit of ideology
 5. The involvement of external actors in Sierra Leone’s conflict can be traced to the 1970s when attempts were made by different groups of Sierra Leoneans to undo Siaka Steven’s decade-old hegemonic grip on the country. These efforts included the nation-wide student demonstrations of 1977, which largely failed in the face of a violent clampdown by state security forces. Since the demonstrations did not yield a regime change, the students resorted to political sensitisation on college campuses and among youths in greater Freetown. Initially the sensitisation took the form of study groups. On the Fourah Bay College (FBC) campus of the University of Sierra Leone, a number of study groups sprang up. Prominent among these was the Green Book Study Group. 6. The Green Book contains the political philosophy of the Libyan President, Colonel Muammar Ghaddafi, which is known as the Third Universal Theory. It advocates the creation of a Jamahiriya - a peoples’ state. Ghaddafi claimed that the Third Universal Theory is instrumental to the emancipation of the human race. The spread of Ghaddafi’s political philosophy became a key foreign policy objective of the Libyan state. Even before he began supporting revolutionary movements in different parts of the world, Ghaddafi offered diplomatic relations and foreign aid in furtherance of his aim of spreading his political philosophy. Libya gave financial assistance to Sierra Leonean Muslims in the late 1970s in order to perform the annual hajj pilgrimage to Mecca. The Libyan government also provided funds to assist the Sierra Leone government to host the Organisation of African Unity (OAU) summit in 1980. 7. As part of a wide range of foreign policy tools to influence events outside Libya, Ghaddafi provided a safe haven and weapons training for individuals who wished to instigate revolutionary struggle in their own countries. These were people who had been branded as terrorists, dissidents and insurgents4 by their own governments but who (in many cases) were engaged in resistance to overthrow dictatorial and colonial regimes. Ghaddafi also created front organisations for their operations in neighbouring states. 8. A number of formal bodies were responsible for the execution of Libya’s foreign policy. These included the Foreign Liaison Secretariat, the Secretariat for External Security, the Divisions of General and Military Intelligence, the Libyan Special Security Forces, and the Secretariat of Justice. 9. As part of Libya’s foreign policy strategy, Libyan Peoples’ Bureaus and Revolutionary Committees / Councils facilitated the setting up of revolutionary movements in a number of countries. In 1985, a renewed drive was undertaken to extend Libya’s influence in the third world.7 10. Members of the Green Book Study Group at FBC had established contacts with Libyan authorities in the early 1980s. In 1985 three lecturers and 41 students were expelled from FBC following allegedly riotous conduct by students after a convocation ceremony, on and off the campus in Freetown. Alie Kabbah, the student union leader, along with some of the other students who were expelled, travelled to Ghana towards the end of 1985. The Commission received a variety of accounts of the steps that occurred next and the following descriptions can reflect only the experiences and perspectives of those cited. 11. The then President of Ghana, Flight Lieutenant John Jerry Rawlings, and his government had an avowed revolutionary posture. He was perceived as a proponent of pan-Africanism. The majority of the radical students who were expelled from FBC were members of the Pan-African Union organization (PANAFU). Upon arrival in Accra, some of the students were received by the Chief of the Libyan Peoples’ Bureau in Ghana. Some of the students gained admission into the University of Ghana at Legon to complete their studies. The Libyan government paid their fees and their up-keep on scholarships. While in Ghana, the student radicals were invited to attend seminars and conferences in Libya. Their trips were funded by the Revolutionary Council of Libya. 12. Alie Kabbah and his colleagues in Ghana subsequently worked out a programme with the Libyan authorities to train Sierra Leonean revolutionaries to overthrow the All Peoples’ Party (APC) regime. About 25 Sierra Leoneans participated in such training in Libya between 1987 and 1989.11 In 1986 some of the students in Ghana travelled to Conakry to meet with members of PANAFU from Sierra Leone. It was resolved thereafter that four members of PANAFU would be sent from Sierra Leone for training in Libya. They travelled to Ghana where they stayed with Alie Kabbah and his colleagues in their hostel for a week before proceeding to Libya. They were joined by three others who had been based in Ghana. All of these Sierra Leonean dissidents travelled to Libya without proper travel documents3 This suggests that the Ghanaian authorities were aware of their presence and movement. The government however declined to comment on the issue on an invitation by the Commission. 13. The training in Libya was mainly premised on ideology. It commenced in around August 1987 and ended in January 1988. Sierra Leoneans who subsequently travelled to Libya received not only ideological training, but also military training. In 1988, another group of Sierra Leoneans was sent to Libya for training. … 46. The RUF was thrown into disarray but it was not annihilated. In order to continue its campaign in Sierra Leone, the RUF fell back on external support. Libya, which had provided training for Sankoh and other Sierra Leoneans, continued to give support to the RUF. In a letter to Brother Mohamed Talibi, the Ambassador of the Libyan Arab Peoples Jamahiriya in Accra, Ghana, dated 26 June 1996, Sankoh wrote: “I want to thank you and the other brothers at home again for the half million United States Dollars (500,000USD) which I received through you for the purchase of needed materials to pursue the military mission”. 47. In the same letter, Sankoh went on to make a further request for $(US) 1 million to “purchase twice the listed materials for effective and smooth operation’’. … Libya: bridging the gap to Peace Talks in 1996
 51. The Commission heard that Colonel Ghaddafi admitted supporting the RUF when he was confronted on the issue by Julius Maada Bio, the second Chairman of the NPRC, in 1996. Moreover Ghaddafi provided Bio with vital information and direction as to how to get the RUF to the table for peace talks. Ghaddafi’s counsel led – directly or indirectly – to the first peace talks between the Government of Sierra Leone and the RUF, which took place in Abidjan in 1996. Libya, which sent delegates to the peace talks, promised the withdrawal of its support to the RUF.70 The opening of those discussions was partly facilitated by the Special Representative of the Secretary-General of the UN to Sierra Leone, Mr. Berhanu Dinka. Following the general elections of February and March 1996, the talks that had begun between the RUF and the NPRC Government of Sierra Leone under Bio were taken up by the newly elected SLPP Government of President Kabbah. … 82. Liberia’s involvement in the conflict was part of a wider network of outside support for the RUF, which also involved Burkina Faso and Libya. However, there is no evidence before the Commission that Libya and Burkina Faso shared Liberia’s interest in the diamond resources of Sierra Leone. Although Libya had promised to withdraw its support for the RUF there are suggestions that following the coup of 1997, Libyan support for the RUF and its allies continued. Arms and ammunitions were flown from Libya via Burkina Faso and Liberia to the RUF.85 In a statement given to the Sierra Leone Police, Yair Gal (aka Yair Galklein), an Israeli “businessman”, testified that while travelling from Burkina Faso to Monrovia in December 1998, he witnessed the loading of rifles into an Air Burkina plane. The plane flew into Monrovia. Upon arrival the rifles were loaded into a Jeep, and driven to the border with Sierra Leone. 83. In December 1998 two Ukrainian planes loaded with arms and ammunition from Libya flew into Monrovia at midnight. The arms and ammunitions were then loaded into four trailer trucks belonging to Simon Rosenbloom, another Israeli. Three of the trucks went to Lofa country from where the arms and ammunitions were transported to the RUF base in Kono.

Thanks to Mark Jarvis. 

Siracusa Summer Course: Deadline for Applications

The distinguished summer course at the Siracusa-based International Institute for Higher Studies in Criminal Sciences has issued its latest draft programme, and a final call for applications. The deadline is 15 March. The Irish Centre for Human Rights is one of the co-sponsors of the programme.
The programme this year has a focus on Shari'a law, which seems particularly apt under the current circumstances. Among the speakers are two distinguished graduates of the Irish Centre for Human Rights doctoral programme: Roza Fajaeli and Mohamed Elewa Bader. Roza is now a lecturer at Trinity College Dublin, and Mohamed is a lecturer at Brunel University in London.
There are fellowships available for students from developing countries. For more information.

Climate Change: Call for Papers

The European Journal of Legal Studies has a call for papers on the legal aspects of climate change. For more information.

Tunisia

I've spent the last couple of days in Tunis, participating in a seminar on truth commissions and transitional justice organised by the Kawakibi Democracy Transition Centre. The seminar was focussed on the new National Investigation Commission into Violations Committed since 17 December 2010. This is the date when Mohamed Bouazizi set himself on fire in a gesture of outrage, frustration and rebellion, and it launched the events that Tunisians call a revolution and that have shaken the entire Arab world, and perhaps even further afield.

Mohsen Marsouk, left, Taoufik Bouderbala, and Amine Ghali.

Many countries wait years before undertaking transitional justice measures. In Sierra Leone, where I was involved with the Truth and Reconciliation Commission and about which I spoke today, the institution was called for in the 1999 Lomé Peace Agreement but it took three years to begin operations. In Tunisia, the Commission is already at work. In fact, there are three commissions. Another one, headed by Abdulfattah Amor or the UN Human Rights Committee, is charged with investigating corruption in the old regime.
Today, the star of the show as Taoufik Bouderbala, who is president of the new Commission. He was accompanied by several members of the Commission. We also heard from Mohsen Marzouk, the eloquent and dynamic secretary general of the Arab Democracy Foundation and President of the Kawakibi Centre.
When I arrived in Tunis yesterday, there were big crowds at the airport. These were Tunisians returning from neighbouring Libya. We drove past the Libyan embassy on our way to the hotel. I'm told the Libyan ambassador has resigned. There were crowds outside the Libyan embassy.
At today's session we spoke at length about truth commissions and their relationship with the existing justice system. Tunisia has a very functional and professional justice system - unlike countries like Sierra Leone - but obviously it remains tainted by the regime with which it was associated. The new commissions seem an exciting way to help push along the democratisation process in Tunisia.
I've been to Tunisia several times in the past. The atmosphere was always stifling because while foreigners could of course say what they wanted about human rights, we knew that terrible abuses were going on too, and from time to time we would hear that our Tunisian colleagues had been imprisoned. We would write letters to embassies, that sort of thing.
How thrilling it was yesterday to get off the plane and breathe the fresh air of freedom. Now, I think the Tunisians also want to breathe the fresh air of justice.

Prosecuting Joe Weiler for a Book Review

Previously, I have reported on the proceedings before French courts taken by an academic in the field of international criminal court against Professor Joe Weiler for a book review that she believed to be defamatory. I'd lost track of the prosecution, but there was a report on it in yesterday's New York Times. It seems the case was heard in January, and a judgment is expected in March.
I've done a few rather critical book reviews in my time, but over the years have come to understand that there is nothing to be gained from writing negative reviews. My advice to reviewers is that if they can't say something nice, send the book back to the publisher or the journal. There is a corollary to this rule: don't believe everything you read in a book review!
Thanks to Quincy Diep.

Another Misguided Attack on Shawan Jabarin

Shawan Jabarin, who heads the Palestinian NGO Al Haq, has been attacked by bloggers following his appointment to the Middle East Advisory Board of Human Rights Watch. I can do no better than post the fine response to these by Kevin Jon Heller on Opinio Juris.
Thanks to Dov Jacobs.

Bert Swart RIP

Judge Bert Swart has passed away. Bert was a distinguished academic who became an international criminal judge. Most recently, he was a member of the Trial Chamber of the Special Tribunal for Lebanon. Only a week ago, President Cassese asked the Secretary-General of the United Nations to designate a replacement, given Bert's lengthy illness.
Bert studies law at the University of Nijmegen, the Netherlands, between 1959 and 1964, and the University of Poitiers, France, between 1964 and 1965. He was Professor of Criminal Law and Criminal Procedure at the University of Utrecht between 1980 and 1996. He has appointed Professor of International Criminal Law (Van Hamel Chair) at the University of Amsterdam in 1996, and I believe that he retired from that position only a year ago. Bert was a member of the Royal Netherlands Academy of Arts and Sciences.
Before joining the Special Tribunal for Lebanon, Bert was an an litem judge at the International Criminal Tribunals for the former Yugoslavia and Rwanda. He served on the Trial Chamber in the Hadzihasanovic et al. case.

Gabon Abolishes the Death Penalty de jure

Gabon, which held its last execution in 1989 and has been deemed de facto abolitionist for more than a decade, has now formally abolished the death penalty. Law 3/2010 was approved by the Parliament in January and promulgated on 15 February 2010, with the signature of the president of the Republic, Ali Bongo Ondimba, Prime Minister Paul Biyogha Mba and Justice Minister Anicette Nanda Oviga.
According to the law, the death penalty is substituted with life imprisonment with the possibility of pardon or amnesty, conditional freedom or alternative means, only after having served at least thirty years of the punishment. The law also abolishes forced labour.

OSCE Consultancy on Trial Monitoring Methodologies

A four-month consultancy for a specialist in trial monitoring is posted by the OSCE. Application deadline is early next week. Qualification, according to the notice, include ten years of experience in the human rights and rule of law area in general including at least five years of experience with trial monitoring, particularly developing strategies, methodology and training for trial monitoring programmes; an advanced university degree in law, human rights, rule of law, international criminal law or a related field; knowledge of international human rights law and particularly fair trial standards; excellent knowledge of English; excellent writing and presentation skills.
Thanks to Maria Alcidi.

Liberian Supreme Court Declares TRC Provisions Unconstitutional

The Liberian Truth and Reconciliation Commission made controversial rulings banning a number of individuals in the country from holding public office. These rulings have now been declared unconstitutional, according to a January decision by the country's Supreme Court.
Thanks to Istvan Lipniczki.

Irish Centre for Human Rights Youtube channel

Please check out the new Youtube channel of the Irish Centre for Human Rights. At present, we have the two videos prepared by Mary Robinson and the late Kevin Boyle for the anniversary conference held in Galway last November. We expect to post lectures and commentary in the future.

Human Rights T-Shirts

According to a press release, the Council of Europe has issued a series of T-shirts featuring articles of the European Convention on Human Rights. Here is the T-shirt on capital punishment. But you will not find this in the Convention! You have to look to Protocol No. 13, adopted less than a decade ago, to get to abolition of the death penalty. For the full catalogue, click here.

Rwandan Minister Ordered to Testify in Bagosora Appeal

Although the ruling is not yet on the website of the International Criminal Tribunal for Rwanda, the Hirondelle News Agency reports that the Appeals Chamber of the Tribunal has ordered General Marcel Gatsinzi, who is currently currently Minister for Natural Disaster and Refugee Affairs in Rwanda, to testify before it: ‘The Appeals Chamber orders that Marcel Gatsinzi shall be present for an evidentiary hearing on Wednesday, March 30, 2011 at 09.00 at the seat of the Tribunal in Arusha, Tanzania' adding that 'failure to comply with the present order may constitute contempt of the Tribunal under Rule 77 of the Rules.’

The Chamber said he may be accompanied by counsel. He will be questioned first by the judges, following which the prosecution and the defence may examine (cross-examine?) him.

Summoning of witnesses by judges is a relatively unusual event before the International Tribunals, although it is certainly not unknown. I am not aware, however, of judges of the Appeals Chamber ever making such an order. Perhaps readers of the blog can enlighten us on this.

Bagosora had wanted Gatsinzi to testify for him at trial, but Gatsinzi had said he would only do so at the request of the judges themselves. No order was made. Bagosora says the testimony is important in terms of his appeal on issues relating to the fairness of the proceedings.

Bagosora was convicted in December 2008 and sentenced to life imprisonment. He had been in charge of the Rwandan military from the outbreak of the genocide, in April 1994.

Alien Tort Claims Act Cannot be Used Against Corporation, Court Confirms

The United States Court of Appeals, Second Circuit, in Kiobel et al. v. Royal Dutch Shell, has upheld a judgment from September 2010 ruling that the Alien Tort Claims Act could not be applied to corporations. The three-judge ruling, with one dissent, upholds the earlier judgment. For those who follow such matters, it contains an interesting reference to case law of the European Court of Human Rights (the legendary Soering decision). The court had earlier ruled (5-5) not to reconsider the case en banc, as the full ten judges. Ralph Steinhardt says it is the only circuit with such a ruling, and expects that case may now go to the Supreme Court.
There is already detailed comment on the decision on the Oneworld blog and on Opinio juris. For the background of the case, see the Hague Justice Portal.
Thanks to Eva Heza.

Prosecuting Duvalier for Crimes Against Humanity

The return of former Haitian dictator Jean-Claude ('Baby-Doc') Duvalier to Haiti has revived calls for him to be brought to justice. For years, Duvalier has been on the shortlist of former tyrants who had managed to escape prosecution, finding a comfortable retirement in a receptive home. In Duvalier's case, for many years this was France, the country that brought Haiti to its knees and kept it there for more than a century.

Père et fils

Since Duvalier landed in Haiti, I have been receiving calls and e-mails from friends and colleagues in that country asking about the possible legal difficulties involved in prosecution. A huge fog of debate has been created in Haiti by Duvalier supporters, who invoke a range of tired arguments in order to suggest that Duvalier cannot be punished, or that his liability may be limited to economic crimes.
There is a strong case that Duvalier was responsible for crimes against humanity. Crimes against humanity, involving persecution and other forms of attack directed against any civilian population have been punishable under international law since Nuremberg. The precedents at Nuremberg linked crimes against humanity to aggressive war, and Duvalier's lawyers will have an argument that this limitation on the scope of crimes against humanity persisted until after he had left power. There has been no credible argument since the 1990s that crimes against humanity could not be committed in peacetime.
There is much authority to suggest that the link between crimes against humanity and aggressive war had disappeared by the time of the Duvalier regime. I would not expect international judges to sustain an argument to the contrary.
Apparently Haitian law does not contain a provision governing prosecution for crimes against humanity. This can be easily rectified by the adoption of new legislation. Could such legislation operate retroactively? Article 11(2) of the Universal Declaration of Human Rights says: 'No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.' Thus, the test for retroactivity is not whether the crime existed under Haitian law at the time it was committed but whether it was part of international law. Nuremberg answers that question.
The text of article 9 of the American Convention on Human Rights might be considered: 'No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed.' The reference to 'applicable law' rather than 'national or international law' is noteworthy. But the preamble of the American Convention cites the Universal Declaration of Human Rights. The Inter-American Court of Human Rights will consider 'applicable law' to include 'international law'. 
The Nuremberg precedent adopts that view that crimes of such horror were contrary to fundamental principles of humanity, and that the prospect of punishment for such crimes should have been known to the perpetrators. More recently, international case law takes the view that the accused person can only be punished for crimes that were 'accessible' and 'foreseeable'. Duvalier will have a hard time claiming that this was not the case with respect to the various acts with which he is charged during his regime.
There can be no issue of immunity from the standpoint of international law. The International Court of Justice established that clearly in the case of Democratic Republic of the Congo v. Belgium, of February 2002. It confirmed that a state may always prosecute its own leaders. Some states have their own constitutional provisions on this, but it is something that can always be changed, even retroactively.
There is also an issue of 'prescription' or statutory limitation. Haiti's criminal law provides for statutory limitation of various crimes. But since it has no provision for crimes against humanity, nothing in its law establishes a statutory limitation. It is well-accepted that crimes against humanity should not be subject to statutory limitation.
Thus, it seems likely that some housekeeping in Haitian law may be required in order to facilitate prosecution of Duvalier. But Haitians should not be concerned that some legal loophole can shelter Duvalier from prosecution. All that is required, now, is some political will coupled with judicial energy.

Judge Hans-Peter Kaul on the Crime of Aggression

See the Li Haopei lecture  by Judge Hans-Peter Kaul of the International Criminal Court, delivered earlier this week in Oslo, entitled: 'Is It Possible to Prevent or Punish Future Aggressive War-Making?', as well as the related 'Policy Brief' prepared with judge Liu Daqun of the International Criminal Tribunal for the former Yugoslavia.

Defence Brief in Charles Taylor Trial

Final arguments began in the Charles Taylor trial on Tuesday. The principal defence counsel, Courtenay Griffiths QC, was a few weeks late submitting the defense brief, and the judges refused to accept it. He walked out of the Court in protest. He returned later in the week to face possible contempt proceedings. But the judges have also decided to suspend the hearings pending the appeal by Griffiths of their decision not to accept the defence brief.
I have difficulty understanding the logic at work here.
To my mind, the logical reason for refusing the defence brief would be that allowing it would further delay the trial. But now the trial is delayed anyway, pending the appeal. It might also make sense for a court to make such a ruling where there is a systematic problem of late filings and where an example needs to be made. But this is the last trial of the Special Court for Sierra Leone before it goes out of business.
The prosecution brief is already on the Court's website for all to read. I can't post an unredacted version of the whole defense brief because it contains confidential material. But I have obtained, for readers of the blog, the first portion of the defence brief - about 50 pages of it. I know that judges and their legal assistants occasionally look at this blog. Perhaps they can read the defence brief here, even if they don't officially admit it into the record. Surely they can only benefit, in their search for the truth, from consideration of the submissions of the defence.

Georghios Pikis on the Rome Statute

Two years ago, Georghios Pikis completed his six-year term as a member of the Appeals Chamber of the International Criminal Court. Judge Pikis, who comes from Cyprus, had been a member of the country's Supreme Court before his election to the Court. While at the International Criminal Court, he participated in many seminal rulings involving interpretation of the Rome Statute, often writing individual and dissenting opinions.

From left, Prof. Carsten Stahn of the Grotius Centre, Silvana Arbia, Judge Pikis, President Song and myself.

Judge Pikis has produced a book, entitled The Rome Statute for the International Criminal Court. Published by Brill/Martinus Nijhoff, the book was launched yesterday in The Hague in the new premises of the Grotius Centre of the University of Leiden, located above the Central Station. Judge Fulford and myself were speakers at the event. The event was sponsored by Silvana Arbia, the Registrar of the Court. In addition to an impressive cohort of international judges, several doctoral students from the Irish Centre for Human Rights were in attendance.

Judge Pikis signing a book for Judge Odio-Benito, while Judge Kuenyehia looks on. 

The book is a marvelous addition to the literature, to be consulted systematically by students of the Rome Statute. One of the great features of Judge Pikis's approach is the freshness with which he considers the Statute and the other instruments. Many of those interpreting the Statute, including several of the judges, 'remember' what the drafters meant at Rome, and this colours their understanding of the various provisions. Not Judge Pikis. He takes a classic, traditional approach, reading the words for what they say and drawing the conclusions that seem correct to him.
Nor does he seem concerned that his views may be unpopular. This is the last of his preoccupations. For example, Judge Pikis takes the view that a judge who has been a member of one of the other chambers cannot then be designated to the Appeals Chamber. After he left the Court, the Plenary of judges decided to do precisely that. He is also opposed to the idea that a member of the Presidency can sit for more than two terms. These are controversial issues at the Court. He calls the law as he sees it. He is a great judge, independent and impartial, rich with integrity.
The book is up to date as of the amendments adopted at the Kampala Conference. Judge Pikis is enthusiastic about developing the jurisdiction of the Court with respect to prosecuting the crime of aggression. As a Cypriot, he is familiar with the phenomenon.
It is to be hoped that Judge Pikis will continue to study the case law of the International Criminal Court. We will benefit enormously from his insights and opinions.

ElBaradei for President

''Mohamed ElBaradei speaks truth to power', write Bert Lockwood. 'The world would be fortunate if this man of integrity, independence and courage were to become president of Egypt.'

Bert Lockwood

Bert is the editor of Human Rights Quarterly, director of the Morgan Institute for Human Rights at the University of Cincinnati, and a distinguished academic in the field of international human rights. He has been a friend of ElBaradei since the early 1970s, when they studied together at New York University. Read Bert's entire article about ElBaradei here.

Tunisia Will Abolish Death Penalty, Ratify Second Protocol

It's the first great human rights dividend of the turmoil in Arab countries: Tunisia will abolish the death penalty and it will ratify several human rights treaties, including the Second Additional Protocol to the International Covenant on Civil and Political Rights Aiming at Abolition of the Death Penalty.
The Council of Ministers of the transition government announced on the evening of 1 February 2011 that Tunisia was going to ratify the Rome Statute of the International Criminal Court, the International Convention for the Protection of All Persons from Enforced Disappearance, as well as the two optional protocols to the International Covenant on Civil and Political Rights. The second protocol concerns the abolition of the death penalty. In addition, the Council of Ministers has announced deliberations on the lifting of reservations against the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by the Tunisian government.
“This is unprecedented in the entire region, and this should well be emphasized”, says Khadija Cherif, General Secretary of the Fédération internationale des droits de l'homme. “However, we are still impatiently awaiting the lifting of reservations against CEDAW, as we would hope that these ratifications will enable the country to move forward and embrace the true safeguard of human rights of each and every individual”, she concluded.
Tunisia's last execution dates to 1981, and the country has been deemed de facto abolitionist for some time.
Abolition of the death penalty is a very important symbolic gesture when there are dramatic changes of political orientation in a country. Let us hope that Tunisia's example is followed by other countries. The new government in Egypt, when it replaces Mubarak, should demonstrate the importance of the change by abolishing the death penalty.
Thanks to Mark Warren.

Katyn

I've spent the last couple of days participating in a conference at the Case Western Reserve University School of Law, in Cleveland, on the Katyn massacre of 1940. Historians, lawyers and other professionals met under the auspices of the Cox Centre, which is directed by Professor Michael Scharf, and the Libra Institute, to discuss a range of issues associated with this historic atrocity. For nearly half a century, the Soviets denied any responsibility, and there are records indicating that they contemplated destroying all historical records. Then, in 1990, Boris Yeltsin admitted that the killiings were the work of the Soviet NKVD,

Conference participants.

My paper was on Katyn and Nuremberg. The Soviet prosecutor had insisted upon including the accusation in the indictment that the Nazis were responsible for the murder of 11,000 Polish officers and intellectuals in late 1941 in the Katyn forest, located near Smolensk. A Soviet commission of inquiry had investigated the mass grave once the German forces were driven out of the region and its report was tabled into evidence. The German defendants. who knew that it had been the Soviets who were responsible for the mass executions, insisted upon producing exculpatory evidence. In the final days of the great trial, Germans and soviets each produced witnesses to bolster their competing explanations.
The judgment is silent on the subject. Even the Soviet judge said nothing in his dissenting opinion. My reading of the testimony, which is in volume 17 of the Nuremberg proceedings, is that neither side really did a good job of proving its version. The judges did the right thing under the circumstances.
Among the interesting materials on Katyn and Nuremberg can be found the proceedings of the US Select Committee, which examined the evidence in 1952. Robert Jackson testified before the Committee. There is also a fascinating memorandum from the historian of the British foreign office.
The Katyn charge is often invoked in the victors' justice critique of Nuremberg. It is not the only atrocity committed by the victors, of course. To Katyn, one can add the firebombing of German cities, the use of the atomic bomb at Hiroshima and Nagasaki, and other Allied crimes. None of these has ever  been properly punished. I've been intrigued by this question recently, not only because of the historic dimension, but for what we can learn in terms of prosecutorial decisions before our modern-day tribunals. In reality, the same types of problems remain with us. Personally, I do not attach validity to the charge that Nuremberg was flawed because it only prosecuted one side of the conflict. I will develop these ideas more thoroughly in my paper, which will be published along with the other proceedings at the conference later this year.
One of the big debates at the conference was the appropriate legal characterization of the Katyn massacre. Many of the participants were anxious to pin the label genocide on the killings. The argument here is quite a stretch, in my view, but readers of the blog can consult the whole debate in the videos of the proceedings and in the published version, when it appears.
Much attention was given to how the Katyn case might be litigated today. Currently, there are at least two cases pending before the European Court of Human Rights directed against Russia.

UK Viewed Bashir Indictment as 'Unhelpful' - Wikileaks

Two Wikileaks cables from the London embassy, released yesterday, indicate British with the application by Prosecutor Moreno-Ocampo to seek an arrest warrant against the President of Sudan in July 2008. See: 

http://dazzlepod.com/cable/08LONDON1841/1/?hl=icc

http://dazzlepod.com/cable/08LONDON1862/1/?hl=icc

At the time there was talk of the Security Council stalling the process by invoking article 16 of the Rome Statute. One of the cables suggests the British considered that article 16 was a 'card not to sell cheaply', but an option to remain on the table. One cable says 'Although HMG will not acknowledge it publicly, the UK is doing every thing it can to remain flexible on the ICC and to use Bashir's potential indictment as a lever to change the dynamic on the Darfur political process and to spur CPA implementation.'

Here are the full texts of the cables:

VZCZCXRO5031
OO RUEHFL RUEHKW RUEHLA RUEHROV RUEHSR RUEHTRO
DE RUEHLO #1841 1931445
ZNY CCCCC ZZH
O 111445Z JUL 08
FM AMEMBASSY LONDON
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9175
INFO RUCNFUR/DARFUR COLLECTIVE IMMEDIATE
RUEHZL/EUROPEAN POLITICAL COLLECTIVE IMMEDIATE
RUEHGG/UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
RUEHKH/AMEMBASSY KHARTOUM IMMEDIATE 0102
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 1220
 
********************************************************************************
 
C O N F I D E N T I A L LONDON 001841 
 
SIPDIS 
NOFORN 
 
DEPT FOR S/WCI, IO/FO, IO/PSC, AND AF 
 
E.O. 12958: DECL: 07/11/2018 
 
TAGS: PREL KPKO UNSC SU UK
 
SUBJECT: SUDAN/ICC: UK PREPARED TO REMAIN INITIALLY 
FLEXIBLE IN THE FACE OF NEW INDICTMENTS  REF: USUN 617  
 
Classified By: POLITICAL COUNSELOR RICHARD MILLS, REASONS 1.4 (B/D).  
 
¶1. (C/NF) In the wake of yesterday's call by Chinese and Russian PermReps in New York to suspend the ICC investigations that may lead to the July 14 indictment of Sudanese President Bashir and other regime higher-ups, the Foreign Office has decided to remain flexible on its strong support for the ICC.  According to FCO Sudan Unit contacts, UKUN recommended a "defiant response" to the Chinese and Russian demands, in line with the UK's core policy of supporting the ICC.  However, after a
hastily called internal meeting this morning with FCO Permanent Under Secretary Peter Ricketts, FCO senior officials reportedly determined to send more "nuanced" instructions to their mission in New York. While there is "no way the UK will be on a forward footing," FCO contacts report HMG may be willing to be "flexible" if the Government of Sudan makes serious efforts to improve immediately the situation in Darfur.  That said, top FCO Legal Advisor Daniel Bethlehem is reportedly "nervous" that there may be very little legal space for the UK to remain flexible for long.  
 
¶2. (C/NF) UK officials plan to seek ministerial advice on UK-Sudan policy in light of the indictments on July 15 at a Cabinet-level meeting on Africa, after the ICC Prosecutor announces the new indictments on July 14.  Among UK officials, there is growing skepticism that a Bashir indictment will actually be an "apocalyptic event," even if it could cause drastic damage to the UK's current policy of engagement with Bashir's regime in Khartoum.  
 
¶3. (SBU) In the interim, Foreign Secretary Miliband has approved the following press lines:  -- The ICC will continue to have our full support for its activities.  -- Ending impunity is vital to a solution in Darfur.  That is why in March 2005, the UK sponsored UNSCR 1593 which referred Darfur to the ICC.  The ICC Prosecutor has submitted an application for (insert names) to the ICC judges.  It would be premature to comment or speculate on the outcome of the ICC deliberations.  -- We call on the Government of Sudan to cooperate with the ICC.  The Foreign Secretary raised this with Sudanese President on July 9.   Visit London's Classified Website:XXXXXXXXXXXX LeBaron



VZCZCXYZ0000
PP RUEHWEB
 
DE RUEHLO #1862/01 1971606
ZNY CCCCC ZZH
P 151606Z JUL 08
FM AMEMBASSY LONDON
TO RUEHC/SECSTATE WASHDC PRIORITY 9197
INFO RUEHKH/AMEMBASSY KHARTOUM PRIORITY 0105
RUCNDT/USMISSION USUN NEW YORK PRIORITY 1225
 
********************************************************************************
 
C O N F I D E N T I A L LONDON 001862 
 
SIPDIS 
NOFORN 
 
USUN FOR JANA CHAPMAN-GATES 
 
E.O. 12958: DECL: 07/18/2018 
TAGS: PREL UNSC KPKO PHUM SU UK
SUBJECT: SUDAN/ICC: UK STRATEGY WITH POTENTIAL BASHIR ICC 
INDICTMENT 
 
REF: LONDON 1841 
 
Classified By: Political Minister Counselor Richard Mills, reasons 1.4 (b/d).  
 
¶1. (C/NF) Summary.  Following Foreign Secretary Miliband's July 9 visit to Sudan, ICC Chief
Prosecutor Luis Moreno-Ocampo's July 14 request for indictment of Sudanese President Omar al-Bashir,
and Sudanese Foreign Minister Deng Alor's July 14 assurances to the UK that the GoS will "engage
legally" with the ICC, a July 15 UK Cabinet-level meeting approved a UK strategy to continue HMG's
constructive engagement with the GoS and press for progress on the Comprehensive Peace Agreement
(CPA) and the Darfur political process while also maintaining HMG credibility in support of the ICC.
 Ministers said HMG should continue to press the GoS to cooperate with the ICC while not taking any
options off the table and without espousing a hard-line approach in support of the ICC.  While there
is no current movement to pursue an Article 16 suspension of the ICC's investigation of Bashir, a
"card not to sell cheaply," the UK wants that option to remain on the table.  Although HMG will not
acknowledge it publicly, the UK is doing every thing it can to remain flexible on the ICC and to use
Bashir's potential indictment as a lever to change the dynamic on the Darfur political process and
to spur CPA implementation.  End Summary.   
 
Miliband and Alexander Outline the UK's Policy --------------------------------------------- -  
 
¶2. (C/NF) According to FCO contacts, Foreign Secretary David Miliband and Development Secretary Douglas Alexander outlined a UK strategy to continue HMG's constructive engagement with GoS and press for progress on the CPA and the Darfur political process while maintaining the UK's credibility during a Cabinet-level meeting on July 15.   Ministers agreed HMG should continue to press the GoS to cooperate with the ICC while not taking any options off the table and without
adopting a hard-lined approach in support of the ICC.  There is no current movement to pursue an Article 16 suspension of the ICC's investigation of Bashir, a "card not to sell cheaply."  Ministers said there would have to be significant movement on both CPA and Darfur to warrant a move on Article 16 and the UK should try "to use intelligently the political space created by the ICC announcement," in concert with the U.S. and France.  
 
¶3. (C/NF) Ministers also agreed that the CPA should be central to HMG policy and that Prime Minister Brown's offer to help in the Darfur political talks should remain on the table, but not be an active element of the UK's policy. Supporting the newly appointed UN/AU Chief Mediator and encouraging civil society integration in the process will be the main focus of the UK's policy for
Darfur.  
 
Sudanese Say They will Engage with the ICC ------------------------------------------  
 
¶4. (C/NF) In a July 14 meeting between Sudanese Foreign Minister Deng Alor and the UK Ambassador to Sudan, Alor said the GoS Council of Ministers had met on July 13 to determine its response to Ocampo's request for indictment of Bashir. Alor said Bashir was "surprisingly calm" and that the Council agreed to engage legally with the ICC; to work for a rapid broad-based solution to the conflict in Darfur, including establishment of a Truth and Reconciliation Commission; and to work for a united position with other political parties to promote national reconciliation and help turn the indictment into something positive.  At the meeting, First Vice President Salva Kiir reportedly agreed the SPLM would remain in the Government of National Unity and work with the NCP to address the crisis caused by the ICC announcement.  The two parties agreed to establish a joint crisis management  committee, chaired by Kiir and to include Second Vice President Taha, Foreign Minister Deng Alor, and the Ministers of Justice and Information.  
 
¶5. (C/NF) In the short-term, Alor told the UK Ambassador that he would like to stop by London and Paris on his way back from the July 16-17 Dakar Contact Group meeting in Senegal. In addition, the GoS plans to send government lawyers to the ICC to engage the Court quietly but officially.  (Note: Ocampo had previously told FCO legal advisors that Sudanese legal engagement could prolong the indictment process by months or even years.  Since then, the FCO has been aggressively pushing the
Sudanese to engage the Court.  End  Note.)  Other UK reporting indicates that the SPLM has been trying to engage the NCP on creation of a Roadmap on Darfur in consultation with other political parties and civil society.  
 
The Foreign Secretary's Visit to Sudan --------------------------------------  
 
¶6. (C/NF) Foreign Secretary Miliband made a whirlwind trip of less than 24 hours to Sudan on July 9, where he discussed the CPA, 2009 elections, Darfur, Sudan-Chad relations, and the 2011 referendum on South self-determination.  His meetings included calls on President Bashir, Foreign Secretary Deng Alor, Senior President Advisor Nafie Ali Nafie, and National Security and Intelligence Director Salah al Gosh.  7. (C/NF) FCO contacts described Miliband's meeting with Bashir as "largely
constructive and cordial."  Bashir made his usual refrains about the Sudanese not receiving the deliverables promised by the international community in return for signing the CPA (i.e. removal from the U.S. list of state sponsors of terrorism, etc.) and about the UK's one-sided policy in support of Darfur rebels.  Miliband underscored the need for political settlement of Darfur and stability in the South so that HMG could spend its time and resources on development rather than humanitarian assistance.  On the CPA, Miliband welcomed the Assessment and Evaluation Commission's adoption of the mid-term report and emphasized the need to begin work on long-term issues like oil wealth-sharing.  Both Bashir and Alor were reportedly positive about the progress on the Abyei Roadmap, but noted that there were still problems in deciding the top posts in the interim administration.  
 
¶8. (C/NF) Miliband said the GoS should work with the newly appointed UN/AU Chief Mediator to bring about a new dynamic to the Darfur political talks, even though the rebels remained fragmented and hesitant to engage.  He also highlighted the need to engage civil society and all Sudanese political parties in development of a common platform on Darfur in the run-up to the 2009 elections.  
 
¶9. (C/NF) Miliband privately raised the ICC with Bashir in a one-on-one meeting to communicate the urgency for the GoS to engage the ICC, encouraging Bashir not turn his back on the international community.  
 
Comment -------  
 
¶10. (C/NF) As an architect of the ICC and one of its most staunch supporters, HMG is in a difficult position over the ICC's potential indictment of Bashir, which it sees as unhelpful.  Although there is no clear end-game in mind, HMG seems happy to walk the fine line of pushing GoS engagement with the ICC while also looking to make Bashir's potential indictment the element that changes the dynamics on Darfur and encourages CPA implementation.  HMG's public message on the ICC will likely
remain supportive, while the UK will likely pursue a more flexible policy at the UN and in its dialogue with Khartoum.  Visit London's Classified Website: XXXXXXXXXXXX TUTTLE