Shane Darcy awarded Journal of International Criminal Justice Prize

From left, Judge Cassese, Shane Darcy, Judge Garzonm Johan David Michels and Sandesh Sivakumaran.

Dr Shane Darcy, currently a lecturer and formerly a doctoral student at the Irish Centre for Human Rights, has been awarded the prestigious Journal of International Criminal Justice Prize 2010. The prize is awarded annually for the best article by a younger scholar in this leading international journal. This year the honour was awarded ex aequo to Dr Shane Darcy and Johan David Michels. Shane’s article was entitled ‘Prosecuting the War Crime of Collective Punishment: Is It Time to Amend the Rome Statute?’

In awarding the prize, the Board of Editors of the journal commended the work for furthering critical discussion of the substantive and procedural law practiced before international criminal courts and tribunals. They praised Dr Darcy for 'his lucid and thought-provoking reading of the customary and conventional basis of the offence of collective punishment, its judicial application by the Special Court of Sierra Leone and the implications of its omission from the Rome Statute of the International Criminal Court'.

The prize was awarded at a ceremony convened at the Academy of International Humanitarian Law and Human Rights in Geneva on 10 March 2011, presided over by Judge Antonio Cassese, the President of the Special Tribunal of Lebanon, and Judge Baltasar Garzón, magistrate at the Audiencia Nacional in Spain, currently working at the Office of the Prosecutor of the International Criminal Court. 

International Court of Justice to Deliver Judgment in Georgia Case on Friday

On Friday, the International Court of Justice will deliver its judgment on the preliminary objections in the case filed by Georgia against Russia that is based upon the International Convention for the Prevention of All Forms of Racial Discrimination.

Racism and Galway Taxi Industry

late last year, our colleague Dr Vinodh Jaichand prepared a report on racism in the taxi industry in Galway. At the launch held at the Irish Centre for Human Rights, taxi drivers testified eloquently about how they had been 'dismissed for being African'.

Last week, the Irish Times (22 March 2011) reported that seven taxi drivers of African origin were each awarded €6,349 against a Galway taxi firm, Abby/Eco Taxis, for discrimination on the grounds of race when they were told they could not become shareholders in the company, despite an earlier offer and having worked with it for some time.

The Sunday Times had a larger report which corroborates the Centre’s findings in that report: 'In a ruling published last week, James Kelly, an equality officer, said he was awarding the maximum “in light of the unlawful and blatant overt policy of discrimination inflicted upon the complainants”.'

Thanks to Vinodh Jaichand.

Fellowship, Internship Programmes with Human Rights Consortium in London

The Human Rights Consortium at the School of Advanced Study, University of London, is inviting applications for graduate fellowship qwards of up to £2,000 each for a maximum of two doctoral students undertaking research in the human rights subject field. It also provides opportunities for students enrolled in a graduate programme to undertake an internship at the School. The recipients of the internship will receive an honorarium of £1,000 each. Both programmes last four months.

The doctoral programme is open to all advanced PhD students and/or post-doctoral researchers interested in working with academics of the School in organising, facilitating and disseminating work undertaken in the human rights fields. For more information, click here. Applicants should send curriculum vitae, a writing sample, and a cover letter outlining their interest in, and qualifications for, the Award to HRC@sas.ac.uk.

For information about the intership programme, click here. Eligible candidates interested in participating in an internship at the Human Rights Consortium can apply by sending a curriculum vitae, a writing sample, and a cover letter outlining their interest in, and qualifications for, an HRC internship to HRC@sas.ac.uk.

The application deadline for both programmes is 5.30 pm, Friday 15 April 2011. Interviews will be scheduled for the following week. Appointments would be expected to start after the Easter break. The appointment can be renewable.

Death Penalty and Drugs at UN Commission on Narcotic Drugs

The International Harm Reduction Association presented a statement against the death penalty last week to the  UN Commission on Narcotic Drugs in Vienna.

We are grateful for the opportunity to speak on this important agenda item.We heard yesterday from UNODC of the seizures of illicit substances made in many parts of the world. While looking at the statistics on tonnes and kilos, we must also recognise the human face of such seizures.We must consider the penalties that will be applied to those who are arrested and prosecuted. This is not to excuse criminality – but nor can we excuse the taking of human life for any crime.The death penalty for drug offences is a violation of international law. This is clear. Yet 32 jurisdictions retain this excessive and cruel punishment. The International Harm Reduction Association has identified hundreds of executions annually for drug-related offences but believes that as many as one thousand people may be executed for drug offences each year when states that keep their death penalty statistics a secret are counted.The justification for this is usually deterrence. This is a faulty argument that has been presented many times over, and for a range of crimes.
While nobody should be executed for any offence, the vast majority of those known to be sentenced to die for drugs are not kingpins or major traffickers. They are carriers. Very often involvement in this aspect of the drug trade is driven by poverty, drug dependence and a lack of options. To kill these people is cruel in the extreme.
Our call is brief. All States must cease the application of the death penalty for drug offences, and, indeed, for all offences, and immediately institute a moratorium to spare the lives of those on death row.

The statement was sponsored by many NGOs, including: International Network of People Who Use Drug; Penal Reform International; Human Rights Watchl The International Drug Policy Consortium; The German Coalition to Abolish the Death Penalty; The Open Society Foundation's Drug Policy Programme; Reprieve; Transform Drug Policy Foundation; The Quaker Council for European Affairs.
Thanks to Rick Lines.

New Customary Law Database from International Committee of the Red Cross

Today, the International Committee of the Red Cross launches the State practice of 30 countries onto its new customary IHL database. This is the first of a series of updates of national practice which have been developed in association with the British Red Cross.

To mark the event, the ICRC will host a webcast on 14 April at 15h00 Central European Time (duration: 60 minutes). The webcast presenters will include Jean-Marie Henckaerts, ICRC Legal Advisor and co-author of the Customary IHL study, Geneva, Switzerland; Romaric Ferraro, ICRC Legal Advisor, Bogota, Colombia; and James Ross, Legal and Policy Director, Human Rights Watch, New York, USA. They will be available to answer questions from participants. The questions can be sent in advance of the webcast.
To participate in the webcast and submit your questions, please register by clicking here.

Research Forum of American Society of Internaitonal law

The new American Society of International Law Research Forum may provide an opportunity for doctoral students to present their research It is aimed at providing a setting for the presentation and focused discussion of works in progress, The inaugural session will be held in Los Angeles at UCLA Law School on 4-5 November 2011. For information, click here.

Thanks to Mark Drumbl.

China

Sorry for the radio silence over the past week. I've been in China, lecturing about capital punishment at a seminar organized by Wuhan University, and at the National Judges College. As in the past, it is impossible to access my blog there. I arrived in New York late yesterday. I'm spending the next couple of weeks teaching a course on genocide at Cardozo Law School and should be back to regular blogging.

Libya

One of our doctoral students is Mario Silva. In his spare time, when he is not working on his thesis, he is a member of the Canadian Parliament. Mario's research is on 'failed states'. He made a very fine statement in the Canadian House of Commons on Tuesday. I reproduce it in full:

Mr. Speaker, over the course of past few weeks the people of Libya and many other states in Africa and the Middle East have taken to the streets in protest.
People are demanding respect for their fundamental human rights as enshrined in The United Nations Universal Declaration of Human Rights.  This was the first international pronouncement of what we have come to know as the human rights norm.  It establishes freedom, justice, peace and the inherent dignity and equality of all human beings as inalienable rights.
The subsequent International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights further enhanced the ideal of free human beings enjoying civil and political freedom. It is these Charters, Covenants and other International Treaties that establish the foundation for a state’s responsibilities to its citizens.
Mr. Speaker, I thank the House for agreeing to such an important debate on Libya and for the world  community for hearing and responding to the cries of the Libyan people.  Colonel Gaddafi and his regime have brought the full might of their armed forces to bear on the Libyan people.  The regime’s soldiers have been backed up by mercenaries who seek to brutally crush the resistance.
In February the UN Security Council agreed to Resolution 1970.  This condemned Gaddafi’s actions.  It imposed a travel ban and assets freezes on those at the top of his regime.  It demanded an end to the violence, access for international human rights monitors and the lifting of restrictions on the media, and vitally it referred the situation in Libya to the International Criminal Court so that its leaders will hopefully one day face the justice they deserve.  Gaddafi ignored the demands of the UN Security Council Resolution that he stop the violence against the Libyan people.  His forces have attacked peaceful protesters and are now preparing for a violent assault on the main rebel city, Benghazi.
Gaddafi has publicly promised that every home will be searched and that there will be no mercy and no pity shown.   Human Rights Watch has catalogued the appalling human rights abuses that are being committed in Tripoli.
The Transitional National Council was the first to call for protection from air attacks through a no-fly zone. This request was followed by the Arab League.
On March 17, the UN Security Council acting under Chapter VII and VIII adopted resolution 1973 by a vote of 10 in favour to none against, with 5 abstentions.  The resolution demands the immediate establishment of a ceasefire with a complete end to the violence and all attacks against Libyan civilians.  It establishes a ban on all flights in the airspace over Libya in order to help protect these civilians, and it authorises member states to take, and I quote, “all necessary measures to enforce compliance with the ban”. Crucially, it states in Paragraph 4: “it authorises member states acting nationally or through regional organisations or arrangements and acting in co-operation with the Secretary General to take all necessary measures to protect civilians and civilian-populated areas under threat of attack, including Benghazi.”
The Council authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan soil.
Resolution 1973 provides legal authority for the international community to use force to protect civilians.
It further demanded that Libyan authorities comply with their obligations under international law and take all measures to protect civilians and meet their basic needs as well as ensuring the rapid and unimpeded passage of humanitarian assistance.The Foreign Minister of France, Alain Juppé, said “the situation on the ground is more alarming than ever, marked by the violent re-conquest of cities that have been released”.
The Security Council could not stand by and “let the warmongers flout international legality.”  The world was experiencing “a wave of great revolutions that would change the course of history,” but the will of the Libyan people had been “trampled under the feet of the Qadhafi regime.”
Mr Speaker, the resolution both authorises and sets the limits of the international community’s actions and that of Canada.  It specifically excludes an occupation force of any form on any part of Libyan territory.
Now that the UN Security Council has reached its decision there is a responsibility for Canada to act with other nations.
The Security Council has adopted Resolution 1973 as a measure to maintain or restore international peace and security under Chapter VII of the United Nations Charter and as the Member of Parliament for Davenport I am pleased that the overall will of this House is to support this UN Security Council resolution
Mr. Speaker, States have a responsibility to deliver the political goods – security, health and education, good governance and the rule of law.  Libya has essentially been outlawed by the international community as a failed state for being no longer willing or able to carry out these functions as well as for the massacring its own people.
Libya has refused to meet a specific set of conditions, has refused to respect human rights and adhere to the UN Security Council resolution and has fallen into failed state status.The UN Security Council in resolution 1973 has again confirmed the doctrine that sovereignty is a right that comes with responsibility. No state can have sovereignty in the absence of responsibility and the Doctrine of Responsibility to Protect is always applicable.  The Westphalia definition of state sovereignty no longer applies.
Afghanistan and Somalia have demonstrated the danger of ignoring failing or failed states.   State failure not only presents considerable challenges for those states in decline or collapse, but also for the international system as a whole.  Humanitarian challenges arise from the fact that state failure is both fuelled and created by overwhelming human need and refugee crises.   We all remember too well the lessons learned from acts of genocide in Cambodia, Rwanda, Bosnia, and  Kosovo.Libya’s dictator Gadhafi is unwilling to safeguard the minimal civil conditions of peace, order and security for the Libyan people.  He has brought war, anarchy and destruction upon the Libyan people and has lost the legitimacy of governance both domestically and internationally. Under international law, Libya has an obligation to protect their citizens and ensure their human rights are secure.  If it fails, and under the new doctrine of the responsibility to protect, the UN will act in demanding an immediate ceasefire in Libya, including an end to the current attacks against civilians which it said might constitute “crimes against humanity”, the Security Council has demonstrated that these actions are no longer tolerable.

For more, here is Mario Silva's website.

Denial of Residence to HIV Positive Individual is Discrimination Under the European Convention of Human Rights

A decision of the European Court of Human Rights issued last Thursday, in Kiyutin v. Russia, finds that refusal of a residence permit to a foreign national on the basis of HIV positive status constitutes prohibited discrimination.

Violations of article 8 (right to privacy) and 14 (non-discrimination) of the European Convention on Human Rights were the basis of the decision.

The Court recalled that although there is no obligation under the Convention on a state to admit a foreign national onto its territory, ‘the State must nevertheless exercise its immigration policies in a manner which is compatible with a foreign national’s human rights, in particular the right to respect for their private or family life and the right not to be subject to discrimination’ (para. 53). This is the basis of a violation of article 8. As for discrimination, article 14 provides a list of grounds of discrimination ending in the words ‘other status’. The Court noted that it had ‘recently recognised that a physical disability and various health impairments fall within the scope of this provision’, and concluded that ‘a distinction made on account of one’s health status, including such conditions as HIV infection, should be covered – either as a form of disability or alongside with it – by the term “other status” in the text of Article 14 of the Convention’. (para. 57)

Turning to whether the state could limit the right, the Court said that where ‘restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion.’ (para. 63). It said that ‘people living with HIV are a vulnerable group with a history of prejudice and stigmatisation and that the State should be afforded only a narrow margin of appreciation in choosing measures that single out this group for differential treatment on the basis of their HIV status’ (para. 64).

The Court cited a number of international declarations and reports on the subject. It noted that ‘travel restrictions are instrumental for the protection of public health against highly contagious diseases with a short incubation period, such as cholera or yellow fever or, to take more recent examples, severe acute respiratory syndrome (SARS) and “bird flu” (H5N1). Entry restrictions relating to such conditions can help to prevent their spread by excluding travellers who may transmit these diseases by their presence in a country through casual contact or airborne particles. However, the mere presence of a HIV-positive individual in a country is not in itself a threat to public health.’ (para. 68)

The NGO Interrights participated in the proceedings and submitted an amicus curiae brief. It observes:

This landmark case is a significant boost to the rights of persons living with HIV/AIDS (‘PLHIV’) in Europe, as the judgment contains two important ‘firsts’: not only has it explicitly recognised that PLHIV are protected as a distinct group against discrimination in relation to their fundamental rights; but it has also recognised that PLHIV are a ‘vulnerable group’ and any restriction of their rights attracts a higher degree of scrutiny on the part of the Court.

Papers from Istanbul Symposium on Capital Punishment

The conference papers from the Istanbul Symposium on Capital Punishment, held in July 2010, are now available on line.

Indigenous Peoples and International Criminal Law

A report on international criminal law and the defence of the rights of indigenous peoples has been issued by the special rapporteur appointed by the United Nations Permanent Forum, Bartolomé Clavero Salvador. Much of it deals with the crime of genocide.
Thanks to Brendan Tobin.

Illinois Governor Signs Death Penalty Abolition Bill: 34 More States to Go

The Governor of Illinois has now signed the bill adopted a few weeks ago by the State legislatures that abolishes capital punishment. Here is the Governor's statement.
Illinois is a big and important state, the fifth largest in the United States, and this development should not be underestimated as a sign of changing attitudes. Only a few years ago, we spoke of 37 US states that still had the death penalty, and now it is 34. If the number declines further, it will open the door to a challenge before the Supreme Court aimed at declaring the death penalty unconstitutional. In the past, the Court has viewed changes at the state level as important indicators of the 'evolving standards of decency' that underpin a progressive interpretation of the eighth amendment. This should motivate campaigners in other states in the United States, who will appreciate how seemingly small victories at the local level can contribute to judicial abolition at the national level.
The story of the abolition in Illinois would make a great doctoral thesis (and book).
Thanks to Megan Fairlie, Sean O'Brien and Mark Warren.

International Women's Day

Today is the one-hundredth anniversary of International Women’s Day. The first International Women’s Day was observed on 19 March 1911, following a call by the Socialist Party of America. In 1977, its celebration was encouraged by the United Nations General Assembly.

Margaret Fairley, painted by Canadian artist Frederick Varley

It has been suggested that we mark the day by signaling the contribution of great women. I would like to mark the life of my maternal grandmother, Margaret Fairley, who campaigned for social justice in many contexts, including for the equality of women.

Margaret was born in Britain and studied at Oxford for a degree. I believe she would have completed the degree exactly 100 years ago. But Oxford did not give degrees to women then. Margaret was offered a position at the University of Alberta, where her credits would be recognized in exchange for some service to the institution. Needless to say, my mother, my sister and my wife and my daughters did not have to go to such lengths to receive their degrees. This is thanks to the struggles of those who went before, including Margaret.

One of my early memories of Margaret, who died when I was a teenager, is of her interest in decolonization in Africa. I believe she saw this as an event of colossal importance, and she managed to communicate to me her enthusiasm for the liberation of the continent from colonial rule. Margaret kept a scrapbook of newspaper clippings on decolonization, and soon I was doing the same.

On my recent visit to Tunisia, I was very struck by the profound engagement of women in the democratic revolution. At the seminar I attended, perhaps have the participants were women. Those who seek reform in the Middle East must understand what a potent force can be unleashed (and has already) to the extent that women see recent developments as a means to achieving greater freedom.

Meanwhile, in Ireland our recent election returned a pathetically low number of women parliamentarians, about 15% of the total. It is a national disgrace. Yesterday, one of my students asked if perhaps there were not enough qualified women. All I can say is that the men have made an enormous botch-up of the country, and that anything would be an improvement. With our proportional representation system this should be an easy thing to fix. Our electoral districts return several candidates based upon a complex formula of preferences and transfers. All we need to do is require that each district return one or two women, depending upon its size, and the problem will be solved.

Researcher Position on Customary International Humanitarian Law Project

The joint Project on Customary International Humanitarian Law of the International Committee of the Red Cross and the British Red Cross is seeking to reinforce its research team in Cambridge. Persons with French and Spanish language skills are particularly encouraged to apply. The recruitment advertisement has been published on the BRCS website:

Academic Freedom Triumphs, Weiler Wins in French Court

The attempted prosecution of Professor Joe Weiler by a disgruntled academic unhappy with a harsh book review has been dismissed by a French Court. This is Prof. Weiler's personal account. Here is the judgment. See also the comment on the decision by Kevin Jon Heller.
Thanks to Anthony Cullen and Joe Powderly.

Big Improvement at ICC as Prosecutor Moves Fast on Libya

Yesterday, the Prosecutor of the International Criminal Court announced he was initiating an investigation in the Situation in Libya. The Situation in Libya was referred to the Court last Saturday, 26 February 2011, by Security Council Resolution 1970. The Security Council can refer situations to the Court in accordance with article 13(b) of the Rome Statute. Under article 53, when situations are referred to the Prosecutor he is to decide to initiate an investigation unless he decides there is no reasonable basis to proceed. 

The Prosecutor’s prompt action contrasts with the only previous case of referral by the Security Council, that of the Situation in Darfur, Sudan. Security Council Resolution 1593 was adopted on 31 March 2005. The Prosecutor took more than two months to decide to initiatie an investigation. There was much criticism at the time, because of the apparent lack of urgency in the Office of the Prosecutor. This suggested a lack of confidence in the deterrent effect of the Court. After all, if international justice is a genuine deterrent, then one would expect the system to be in more of a hurry.

Five situations have now been referred to the Court, two by the Security Council and three by States parties, in accordance with article 14. The length of time from referral to the decision to open an investigation has varied from slightly more than two months (Democratic Republic of the Congo, Darfur) to more than two years (Central African Republic). The average for the first four referrals is 302 days. With five days for Libya, the Prosecutor has set a new standard. It is to be hoped that this can be maintained in the future.

The next step is for the Prosecutor to seek the issuance of arrest warrants. In Darfur, this took almost two years. That is far too slow. But if he can drop the time his decision to open an investigation from an average of 302 to 5, maybe he can do something similar with the request to issue an arrest warrant.

A fine example was set by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia when she applied for an indictment against Slobodan Milosevic on 22 May 1999 with regard to the situation in Kosovo, which had erupted only weeks earlier. The indictment focused on a campaign of ethnic cleansing that had begun in late March 1999, approximately eight weeks earlier. So eight weeks would be a good target for the Office of the Prosecutor concerning the Situation in Libya. It should be able to prepare arrest warrants before the end of April.

Then the Court will have its next big test. The judges have not exactly been speedy in issuing arrest warrants once the applications are made, typically taking more than six months for this stage in the proceedings. By contrast, in the Milosevic case the International Criminal Tribunal for the former Yugoslavia issued the indictment two days after the application was made. That’s a good standard to live up to. In preparation, their legal assistants might get started now preparing the draft decision, so it is ready to go once the Prosecutor makes his move. We already know the names of the ‘usual suspects’. The Prosecutor has said his list includes President Gaddafi and sons. Security Council Resolution 1970 also provides a list of names which ought to be a good basis on which to proceed.

The Security Council Resolution itself is disappointing in that it repeats two of the obnoxious paragraphs that had been included in 2005. These provide a form of immunity for nationals of non-party States involved in peacekeeping missions, something which is probably incompatible with other norms of international law, and they specify that the costs of the case are to be borne by the Court rather than by the United Nations. It was often said that these clauses were included at the behest of the United States, which made sense in 2005 but seems less easy to explain in 2011, now that Washington has become the best friend of the Court.