A New Refoulement Decision from the European Court of Human Rights

A Chamber of the European Court of Human Rights has ruled that the United Kingdom cannot deport two Somali nationals who have committed serious crimes in Britain because of the generally insecure conditions in Somalia: Sufi and Elmi v. United Kingdom. They said this met the 'real risk' threshold for a violation of articles 2 and 3 of the European Convention on Human Rights. This is a development of a line of cases on the subject of refoulement, in that it is not based upon the danger of torture or other ill treatment being inflicted by the State itself so much as the general situation of lawlessness and violence prevailing in the country. Citing a range of reports, from the United Nations, the US Department of State and various international NGOs, the Court said:

248. The Court considers that the large quantity of objective information overwhelmingly indicates that the level of violence in Mogadishu is of sufficient intensity to pose a real risk of treatment reaching the Article 3 threshold to anyone in the capital. In reaching this conclusion the Court has had regard to the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict.

The Court considered the option that the applicants might relocate elsewhere in Somalia, or that they might find sanctuary in a camp for Internally Displaced Persons. It ruled out these options because of the associated dangers.

Congratulations to Nuala Mole, who argued the case.

Finally, the International Tribunal Agrees to Transfer a Suspect to Rwanda for Trial by National Courts

The United Nations International Criminal Tribunal for Rwanda today referred the case of Jean Uwinkindi to the the Rwandan national court system under Rule 11 bis of its Rules of Procedure and Evidence. This was a re-run of several cases heard in 2008 in which transfer was denied. The refusal of the International Tribunal to transfer cases to Rwanda prompted national jurisdictions in Europe to refuse extradition of genocide suspects to Rwanda. In some cases, like Finland, trials were held under universal jurisdiction. In others, like the UK, genocide suspects were set free and remain so.
A so-called Referral Chamber of the Tribunal, composed of Judges Florence Rita Arrey, Presiding, Emile Francis Short and Robert Fremr, heard arguments from the defence and the same amici curiae who had appeared previously, including the Government of Rwanda, Human Rights Watch, the International Criminal Defence Attorneys Association, and the Kigali Bar Association.

The Chamber said it was convinced based on the evidence that Rwanda possesses the ability to accept and prosecute Uwinkindi’s case. The Chamber expressed its solemn hope that the Republic of Rwanda would actualize in practice the commitments it made in its filings about its good faith, capacity and willingness to enforce the highest standards of international justice.
In reaching its decision, the Chamber noted that Rwanda had made material changes in its laws and had indicated its capacity and willingness to prosecute cases referred by the Rwanda Tribunal adhering to internationally recognised fair trial standards enshrined in the Tribunal’s Statute and other human rights instruments. In particular, the Chamber found that the issues which concerned previous Referral Chambers, namely the availability of witnesses and their protection, had been addressed to some degree in the intervening period.

The Referral Chamber also requested that the Registrar appoint the African Commission on Human and Peoples’ Rights to monitor Uwinkindi’s trial in Rwanda. Uwinkindi was a former Pastor of the Pentecostal Church of Kayenzi in Kigali-Rural prefecture.

International Justice on Steroids: the Gadafy Arrest Warrant

It will not be news to readers of the blog that yesterday a Pre-Trial Chamber of the International Criminal Court issued an arrest warrant against Libyan ruler Gadafy and two of his associates. They consist of charges of crimes against humanity (murder and persecution) in the suppression of the pro-democracy movement. The Chamber notes that the alleged acts took place in February. In other words, the proceedings do not involve the armed conflict that has taken place since early March.
Yesterday's decision proves that the Court can work much more quickly than it has in the past. Compare the speed of the proceedings with those of the other situation referred by the Security Council, that of Darfur.

• In Darfur, the Prosecutor took 67 days to decide that it should initiate an investigation following the Security Council Resolution. In Libya, the Prosecutor took 4 days to make the same decision.
• In Darfur, the Prosecutor took 23 months following the Security Council resolution to apply for the first arrest warrants. He explained the lack of progress to the Pre-Trial Chamber by claiming he could not investigate within the country, and complained when the Pre-Trial Chamber asked Antonio Cassese and Louise Arbour for a second opinion on the matter. In Libya, he took two and a half months. This time, the Prosecutor did not ask for more time because of difficulties getting access to the crime sites.
• In Darfur, the Pre-Trial Chamber took more than seven months to issue a decision on the application for an arrest warrant against President Bashir. In Libya, the Pre-Trial Chamber took less than a month and a half.

So the Court is moving much faster. There is a greater sense of urgency. It is a very welcome development. In the future, it will be hard to return to the lethargic ways of the past.
An issue that has never been satisfactorily addressed by the Chambers of the Court is the temporal scope of referrals. In the case of Libya, Security Council resolution 1970 concerns events subsequent to 15 February 2011. But when does it end? Has the Security Council given jurisdiction to the Court over Libya for the indefinite future? In the case of Sudan, which was referred to the Court by the Security Council in 2005, the initial charges involved acts allegedly perpetrated prior to the adoption of Resolution 1593. But subsequent charges, including those against President Bashir, concerned events that occurred after the Resolution.
Perhaps another Security Council resolution is required in order to stop the referral. If this is the case, it creates a rather perverse situation where a single permanent member - quite likely a non-Party State - can veto such a measure.
Similar issues arise with respect to State Party referrals made pursuant to article 14. There have been three of these, concerning Uganda, the Democratic Republic of the Congo and the Central African Republic. Do they come to an end at some point? Who decides? It seems to be well-accepted that the State Party cannot withdraw a referral once this has been made. But can it declare that the temporal scope of the referral has ended? The matter seems less serious than with Security Council referrals under article 13(b), because the Court has jurisdiction over the situation concerning a State Party whereas it requires the Security Council to give it jurisdiction when a non-Party State (the case of Sudan and Libya) is concerned

“Diplomatic Assurances’ at the International Criminal Court

Previously, the blog reported on the ongoing controversy in the Katanga trial at the International Criminal Court concerning defence witnesses from the Democratic Republic of the Congo who have testified in The Hague and then claimed that the Court should not return them to Kinshasa because they fear harm will come of them.

The Chamber’s first decision met with resistance from the Registry. On 22 June, the Chamber issued another ruling setting out the conditions under which the witnesses may be returned to the Congo, subject of course to the decision of the Dutch government on their refugee claim.

That decision notes that a senior official of the Congolese government provided assurances that the witnesses would be well-treated if returned. This recalls consideration of such ‘diplomatic assurances’ by the Special Rapporteur on Torture and the High Commissioner for Human Rights, who rejected them out of hand as being essentially worthless. A decision of the European Court of Human Rights found them not to be persuasive in a refoulement case concerning Tunisia (although the Court had much earlier accepted the validity of assurances in the legendary Soering v. United Kingdom).

The Trial Chamber’s ruling includes the following:

40. However, independent of whether the DRC authorities are aware of the content of the testimony of the three detained witnesses, the Chamber notes that the Congolese Minister of Justice and Human Rights, His Excellency LUZOLO Bambi Lessa, has solemnly and personally committed himself, on behalf of the highest authorities of the Congolese state, that no harm will befall the three witnesses if they are returned to the DRC. Although such diplomatic assurances cannot substitute an independent risk-analysis by the Court under article 68 of the Statute, they must incontestably be treated with the greatest respect and must be presumed to have been made in good faith. The Chamber observes, in this regard, that the above-mentioned assurances are given within the general legal framework for cooperation between the Court and the DRC under Part IX of the Statute. As was correctly pointed out by the DRC, this framework is based on mutual trust and on the ultimate supervision and control of the Assembly of States Parties. The formal assurances given by the DRC authorities therefore carry great weight as they commit the DRC not only vis-à-vis the Court but also to the Assembly of States Parties. (references omitted)

The Chamber makes a number of orders concerning conditions and circumstances of detention for the witnesses upon their return to Kinshasa. They are to be detained ‘in a detention centre which, in terms of infrastructure and population, is most conducive to offering maximum protection. The VWU is instructed to consult with the DRC authorities to identify whether this is the CPRK Kinshasa, the Ndolo prison, or any other detention centre where the witnesses can be legally detained.’ They are to be held ‘under conditions which protect them from possible aggression by co-detainees. However, this should not lead to their permanent isolation.’ Compliance is to be overseen by the Court’s Victims and Witnesses Unit. The Court is to be able to have an observer at any trial of the protected witnesses. The Registry is instructed to ensure that such measures are in place and report back to the Chamber. When this happens, the Chamber says it will consider that it has complied with its obligations under article 68 of the Statute.
I had always thought that the position on diplomatic assurances of the Special Rapporteur and the High Commissioner was a bit extreme. While practising human rights law in Canada, I had often worked on behalf of American death row prisoners in order to obtain such assurances. Of course there is a difference between an assurance that the death penalty will not be imposed - it is carried out according to law, in principle - and that torture, which is totally illegal, will not take place. The Special Rapporteur and the High Commissioner took the view that if you have to ask for assurances about torture, then there is a problem that cannot be remedied by such assurances. The Trial Chamber seems to have taken a different view of this.

Academic Job in The Hague

The Grotius Centre for International Legal Studies, which is part of Leiden University, has advertised an assistant professorship position in international criminal law, human rights and global justice that I am sure would be appropriate for many readers of this blog. Click here.

Tunisia Joins the International Criminal Court

Yesterday, the Transitional Government of Tunisia completed the process of accession to the Rome Statute of the International Criminal Court. It becomes the first member of the Court from the North Africa region and the  116th State Party. The Accession is the result of a Presidential Decree dated 19 February 2011. The deposit of the instrument of accession was delayed to ensure that Tunisia would have advanced its process of ratification of the Agreement on Privileges and Immunities of the Court (APIC) and of the amendments to the Rome Statute adopted in June 2010 by the Kampala Review Conference concerning the crime of aggression and the use of some prohibited weapons as a war crime. These additional steps are forthcoming.
May I make one further suggestion to the Tunisian government. I raised this with civil society activists when I spoke in Tunis in late February of this year. Tunisia should also make a declaration pursuant to article 12(3) giving the Court jurisdiction from the date of entry into force of the Statute, that is, 1 July 2002, until yesterday. That way, crimes perpetrated in the past can also be address. Not only may this be of practical importance. It is also a good reminder to tyrants in other countries that they may find themselves faced with the Court for their deeds in the present, because when they lose power the new regime will make such a declaration.
Accession is similar in legal consequences to ratification. States that signed the Statute may ratify it; those that did not accede to the Statute. States were only entitled to sign the Statute until 31 December 2000.
What's next? Egypt? Libya? Syria?

Licence to Kill

According to the Voice of America, ‘Top Pentagon officials say the U.S. military will capture and kill al-Qaida’s new leader and that he will meet the same fate as Osama bin Laden.’ This is about as close as we are going to get to a declaration of state-sponsored murder. It is obviously a violation of fundamental rights tohat the United States is required to observe pursuant to its international obligations, its constitution, its domestic law and natural law.

I believe it was Geoffrey Robertson who recalled, at the time of the Bin Laden killing, that during the Second World War there had been a debate within the allied powers about whether or not to execute Nazi leaders summarily. There is actually a written proposal to this effect from the United Kingdom published in the record of the London Conference.

There, in an Aide Mémoire dated 23 April 1945, the United Kingdom proposed:

It being conceded that these leaders must suffer death, the question arises whether they should be tried by some form of tribunal claiming to exercise judicial functions, or whether the decision taken by the Allies should be reached and enforced without the machinery of a trial. H.M.G. thoroughly appreciate the arguments which have been advanced in favour of some form of preliminary triaL But H.M.G. are also deeply impressed with the dangers and difficulties of this course, and they wish to put before their principal Allies, in a connected form, the arguments which have led them to think that execution without trial is the preferable course.

Well, wiser heads prevailed, and the result is the monumental accomplishment at Nuremberg. It seems that the United States government is flirting with turning the clock back several decades.

David Scheffer has already written about the contradiction in the discourse on what to do with terrorists like Bin Laden, noting that he had been formally charged with criminal offences by the United States justice system. He explains that on 1 May 2011, in Abbottabad, 'the war agenda trumped the law enforcement agenda without any clear explanation of why an indicted fugitive (Osama bin Laden) could not have been captured and prosecuted as an international terrorist or, for that matter, as a war criminal'. He notes that CIA Director Leon Panetta had said that the order given to the Navy Seals was 'to kill Bin Laden rather than to take him prisoner'.

Prosecutors in the US District Court for the Southern District of New York have formally dropped the charges against Bin Laden.

The United States has said it found a treasure trove of information in Bin Laden's home. Some have also boasted that his detection was facilitated by information obtained as a result of torture or ill treatment. So why would they kill him? Couldn't he have been a useful source of information too?
Thanks to Roland Adjovi and David Scheffer.

Human Rights Council Adopts Resolution on Sexual Orientation

Yesterday, the Human Rights Council adopted a resolution on sexual orientation. This is what the press release says:
Regarding human rights, sexual orientation and gender identity, the Council requested the High Commissioner to commission a study to be finalised by December 2011 to document discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, in all regions of the world, and how international human rights law could be used to end violence and related human rights violations based on sexual orientation and gender identity. It also decided to convene a panel discussion during the nineteenth session of the Human Rights Council, informed by the facts contained in the study commissioned by the High Commissioner.
It is a significant inroad for equal rights based upon sexual orientation within the United Nations system. We have some decisions of bodies like the Human Rights Committee, but nothing at the political level until yesterday.
The text was presented by South Africa. It was adopted by 23 countries in favour, 19 against with 3 abstentions. According to news reports, Russia voted against and China abstained. Delegations from Pakistan, Saudi Arabia, Bahrain, Qatar and Bangladesh spoke against the resolution. Nigeria criticised South Africa for aligning itself with 'Western countries'.
Here is the text of the Resolution.
The Council also adopted a draft protocol to the Convention on the Rights of the Child providing for a petition procedure.
Thanks to Caroline Sweeney.

International Labour Organization Adopts Standards Protecting Domestic Workers

The government, worker and employer delegates at the 100th annual Conference of the International Labour Organization (ILO) on16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide. Read more.

In particular, the Conferenc eadopted a Convention on Domestic Workers (2011) and an accompanying Recommendation.

Thanks to Christine Chanet.

Indian Court overturns mandatory death penalty for drug offences; first in the world to do so

In an unprecedented decision, the Bombay High Court has struck down the mandatory death penalty for drug offences, becoming the first court in the world to do so. Announcing the order via video conferencing, a division bench of Justices A.M Khanwilkar and A.P Bhangale declared Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) that imposes a mandatory death sentence for a subsequent conviction for drug trafficking ‘unconstitutional’.

The Court however, refrained from striking down the law, preferring to read it down instead. Consequently, the sentencing Court will have the option and not obligation, to impose capital punishment on a person convicted a second time for drugs in quantities specified under Section 31A.  

The case involves Ghulam Mohammed Malik, a Kashmiri man sentenced to death by the Special NDPS Court in Mumbai in February 2008 for a repeat offence of smuggling charas [cannabis resin]. Because of the mandatory nature of the punishment under Section 31A as it stood then, Malik was sentenced to death, without consideration of individual circumstances or mitigating factors. The High Court’s verdict came in response to a petition filed by the Indian Harm Reduction Network, a consortium of NGOs working for humane drug policies, who assailed mandatory capital punishment as arbitrary, excessive and disproportionate to the crime of dealing in drugs.

The director of the Lawyers Collective, Anand Grover, who led the case for the Indian Harm Reduction Network, said that  'the order marks an important advance in drug policy and anti-death penalty campaigns. We will examine the decision fully to assess whether striking down the death penalty, as was done by the Supreme Court for Section 303 of the Indian Penal Code would have been more appropriate'.

Across the world, 32 countries impose capital punishment for offences involving narcotic drugs and psychotropic substances. Of these, 13 countries (including India until today) prescribe mandatory death sentences for drug crimes. In countries like Iran and China that actually carry out executions, drug offenders constitute the vast majority of those executed. In May last year, the Court of Appeal in Singapore upheld the mandatory death sentence imposed upon a young Malaysian for possession of heroin.'This is a positive development, which signals that Courts have also started to recognize principles of harm reduction and human rights in relation to drugs', remarked Luke Samson, President of the Indian Harm Reduction Network

Rick Lines, Executive Director of Harm Reduction International, a UK based agency that specializes in drug control and human rights and the author of ‘The Death Penalty for Drug Offences: A violation of International Human Rights Law’ (2007), said: 'The Court has upheld at the domestic level what has been emphasised for years by international human rights bodies – capital drug laws that take away judicial discretion are a violation of the rule of law. India’s justice system has affirmed that it is entirely unacceptable for such a penalty to be mandatory. This will set a positive precedent for judicial authorities in the region, which is rife with draconian drug laws.'

The judgment will be made available shortly at www.lawyerscollective.org.

Thanks to Rick Lines.

Dr Michelle Farrell

From left, Prof. Louis Wolcher, Michelle Farrell, myself and Dr. Kathleen Cavanaugh.

Michelle Farrell successfully defended her doctoral thesis, entitled 'On Torture', at the Irish Centre for Human Rights this afternoon. The external examiner was Prof. Louis Wolcher, of the University of Washington, and I was the internal examiner. The thesis was supervised by Dr. Kathleen Cavanaugh. Some months ago, Michelle was awarded the prestigious Phelan Fellowship in International Law by the National University of Ireland. As a result, she is based in the Irish Centre for a period of two years, where she participates as a member of the faculty.
Congratulations, Michelle.
Michelle began her studies at the Irish Centre for Human Rights as a student on the LLM programme. I think Michelle must be about the thirtieth of our students to complete a doctorate, but I must confess that I have now lost track of the exact number!
The thesis itself is highly publishable, and we hope to see it in print with a major publisher soon.

Chamber Rules on Refugee Claim by ICC Witnesses

Several weeks ago, the blog reported on a debate underway before Trial Chamber II of the International Criminal Court concerning claims to refugee status by certain defence witnesses who had been brought from the Democratic Republic of the Congo to The Hague in order to testify. The witnesses argued that they would be threatened if they were returned to the Congo, and that the Registry, which is responsible for the protection of witnesses, would not be able to do this adequately.

Yesterday, the Chamber issued its ruling on the issues. Right now, the decision is only available in French.

The Chamber had requested the Registry to appoint an ad hoc counsel for the three witnesses. In response to a request from the Chamber, the ad hoc counsel said he had not filed a refugee claim with the Dutch authorities because he considered this to be outside his mandate, which was to see to the interests of the witnesses before the International Criminal Court.

The applicable provision is article 93(7) of the Rome Statute:

7.  (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance.  The person may be transferred if the following conditions are fulfilled:
            (i) The person freely gives his or her informed consent to the transfer; and
            (ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
            (b) The person being transferred shall remain in custody.  When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.

The ad hoc counsel for the witnesses asked that it be suspended, given the threats to the witnesses if they were returned to the Congo.

Defence counsel for Katanga added an interesting argument based on the European Convention on Human Rights. The Convention prevents the refoulement of the three witnesses to the Congo, if there is a real risk of torture or a violation of the right to life. It is not clear from the decision whether the defence was arguing that the Court had the responsibility to enforce the Convention, however (see para. 35).

The Prosecutor took the position that the three witnesses, who were in detention in the Congo, remained subject to the custody of the Congolese authorities even when they were temporarily transferred to the Court. The Prosecutor did not think there was any particular threat or risk of harm to the witnesses were they to be returned (see para. 39). The Registry concurred with the Prosecutor, adding its own concern that such proceedings might jeopardize future cooperation between the Congo and the Court.

In its ruling, the Chamber interpreted the scope of the duty that is imposed upon the Court with respect to the protection of witnesses. The Chamber said that this is limited to protection from risks that are associated with the presence before the Court. The Chamber said that the Court was not responsible for threats to fundamental rights in a more general sense, and specifically when these were not a consequence of the testimony before the Court. According to the Chamber,

L'article 21-3 du Statut ne fait pas obligation à la Cour de veiller à la bonne application, par les Etats parties et dans le cadre de leurs procédures nationales, des droits de l'homme internationalement reconnus. Il exige seulement des Chambres qu'elles veillent à appliquer le Statut ainsi que les autres sources du droit mentionnées à l'article 21-1 et 21-2, d'une manière qui ne soit pas incompatible avec les droits de l’homme internationalement reconnus ou qui ne les violent pas. (para. 62).

For readers of the blog who do not understand French, here is what one gets from Google translate :

Article 21-3 of the Statute does not require the Court to ensure the effective implementation by States parties under their national procedures, human rights internationally recognized. It only requires Chambers to ensure implementation of the Statute and other sources of law mentioned in Article21-1 and 21-2, in a manner not inconsistent with international human rights recognized or that do not violate it.

It’s a pretty good translation in my book, and shows how helpful Google translate can be in making foreign-language material more accessible.

The government of the Netherlands had invited the Chamber to consider the risks associated with refoulement, but the Chamber said this was not its responsibility. The Chamber said it could not ignore the prohibition on refoulement, but as the Court is without its own territory it is unable to address the issue appropriately or implement a remedy.

The Chamber noted that the three witnesses were perfectly entitled to make a refugee claim. It cited the 1951 Convention and protocol, as well as article 14 of the Universal Declaration of Human Rights (‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’) It added that the principle of non-refoulement was one of customary international law (para. 68).

According to the Chamber,

la Chambre ne se trouve pas en mesure d'apliquer l'article 93-7 du Statut dans des conditions qui soient compatibles avec les droits de l'homme internationalement reconnus, comme l'exige pourtant l'article 21-3 du Statut. En effet, si les témoins étaient immédiatement renvoyés en RDC, ils se trouveraient alors dans l'impossibilité d'exercer leur droit de demander l'asile et ils se trouveraient privés du droit fondamental à l'exercice d'un recours effectif.

Briefly, the Chamber suspended article 93(7) because the immediately return of the three witnesses to the Congo would make it impossible for them to exercise their right to claim asylum.

What to do with the witnesses while their asylum claim is pending in The Netherlands? The Chamber said that the Court could not keep the three in custody indefinitely.  I'm not sure how long such proceedings last in The Netherlands but if the applicants don't succeed and take the case to Strasbourg and the European Court of Human Rights, this could take some time. Almost as much time as it takes the Court to issue an arrest warrant!

Ethiopia Commutes Death Sentences of Derg Leaders Convicted of Genocide

Ethiopia has commuted the death sentences that were imposed in 2008 on 23 leaders of the Derg regime, according to AFP. Apparently the commutation doesn't extend to the former leader, Mengistu, who lives in exile in Zimbabwe. According to the United Nations survey on the death penalty, Ethiopia has only carried out a single execution since 2004, in 2007.

Controversy about Judge Flugge's Remarks on Genocide

One of the three judges of the International Criminal Tribunal for the former Yugoslavia who has been designated to hear the Mladic case, Christoph Flügge, is being challenged because of remarks that he made about the legal definition of genocide. For example, here is the story in the Irish Times, entitled 'Judge in Mladic case in row over "genocide"'.
For the record, here is what he actually said, according to the English version of his interview in Der Spiegel some years ago. I reported on this in my blog at the time.

SPIEGEL: The Karadzic case deals with the issue of responsibility for mass killings, which are being referred to as genocide. However, international law experts are divided over whether the Srebrenica massacre can be defined as genocide.
Flügge: I don't want to discuss this specific case. More generally, however, I do ask myself whether we even need the term genocide to characterize such crimes. Why do we have to draw this distinction in the first place? Does it make it more or less unjust when a group of people is killed, not for national, ethnic, racist or religious reasons, as regulated in our statute, but merely because these people all happened to be in a certain location? This was often the case during Stalin's battle against the so-called Kulaks in Ukraine.
SPIEGEL: That wouldn't have fallen under the elements of the offense of genocide.
Flügge: Which is why I believe that we should consider devising a new definition of the crime. Perhaps the term mass murder would eliminate some of the difficulties we face in arriving at legal definitions. It would also work in Cambodia, where Cambodians killed large numbers of Cambodians. What do you call that? Suicidal genocide? Sociocide? Strictly speaking, the term genocide only fits to the Holocaust.

Note that with respect to Srebrenica, Judge Flügge said 'I don't want to discuss the specific case.' I think that the suggestion that he has made some unacceptable pronouncement on the merits of the case is not accurate. There is no reason for his impartiality to be put in doubt here.
However, in a more general sense, he is reflecting on the scope of the term genocide, and this is perfectly legitimate. As a leading international jurist, we would expect no less of him. Note, also, his remarks about Cambodia, which are effectively confirmed by the record of the Extraordinary Chambers of the Courts of Cambodia. There, the killing of Cambodians by Cambodians has not been charged as genocide, despite the colloquial reference to the 'Cambodian genocide' over the decades. It is true that there are now a few charges of genocide in the Cambodian proceedings, but they relate to ethnic minorities and not to the Khmer majority itself, which was the victim of the bulk of the Khmer Rouge atrocities. So on this point, Judge Flügge is spot on.
I note that Geoffrey Robertson has called for Mladic to be tried on one count, of crimes against humanity.
I don't expect that to happen. We already have several of what might be called vicarious determinations that Mladic perpetrated genocide in Srebrenica. Although Mladic himself has not been judged yet, his name figures in the conviction of General Krstic for aiding and abetting genocide. For Krstic to be convicted of aiding and abetting genocide, there had to be a finding that he had aided and abetted someone. Here is how the Appeals Chamber (para. 83) described the involvement of General Krstic:

the case against Radislav Krstic was one based on circumstantial evidence, and the finding of the Trial Chamber was largely based upon a combination of circumstantial facts. In convicting Krstic as a participant in a joint criminal enterprise to commit genocide, the Trial Chamber relied upon evidence establishing his knowledge of the intention on the part of General Mladic and other members of the VRS Main Staff to execute the Bosnian Muslims of Srebrenica, his knowledge of the use of personnel and resources of the Drina Corps to carry out that intention given his command position, and upon evidence that Radislav Krstic supervised the participation of his subordinates in carrying out those executions.

The Appeals Chamber reversed the conviction of Krstic for actually perpetrating genocide because it said there were doubts as to whether he shared Mladic's intent to commit genocide.
The conclusions of the International Court of Justice in the 2007 judgment in Bosnia v. Serbia are to the same effect. There are many references in the judgment to General Mladic, whose responsibility for the Srebrenica masssacre - which the Court labelled genocide - does not appear to be questioned.
So despite the wisdom of Geoff Robertson's suggestion, it does not seem possible for the Tribunal to proceed against Mladic on anything but a charge of genocide. Mladic will have personal defences of course - insanity, voluntary intoxication, mistake of fact - but otherwise there is an enormous body of legal findings to the effect that genocide was perpetrated at Srebrenica and that he was in charge.
I have always found this jurisprudence to be a bit incoherent. On the one hand, the judgments of the Yugoslavia Tribunal and the International Court of Justice reject the general proposition that the war in Bosnia and Herzegovina was genocidal in nature. There have been no convictions of genocide - despite several efforts by the Prosecutor - with respect to anything except the Srebrenica massacre, which occurred in the space of a few days in July 1995. The narrative that emerges is that the Bosnian Serbs were not genocidal except for this brief period. It doesn't make a great deal of sense to me.
Genocide requires evidence of an intent to destroy an ethnic group in whole or in part. We continue to debate whether the policy of a state or state-like entity is an element of the crime, but there is no quarrel about the fact that it is a very important and compelling fact to establish. If the Bosnian Serbs were not genocidal until 12 July 1995, why did they suddenly become so for a few days? I wish the judges at the Tribunal and the Court had gone to greater lengths to explain this anomaly.
Be that as it may, with the judgments of the International Criminal Tribunal for the former Yugoslavia, in Krstic and Popovic, and the decision of the International Court of Justice, the conclusion that genocide was perpetrated at Srebrenica seems irreversible. To return to Judge Flügge, it does not seem plausible that he would use his position as a member of the Trial Chamber to attempt to question this.
For what appears to be the final trial at the Yugoslavia Tribunal, we have three fine judges and a fine prosecutor. There are excellent defence counsel from whom to make a selection. It should be a trial of high quality. That many of the factual issues have already been determined in earlier decisions does not undermine the fairness at all. It is simply a consequence of the fact that Mladic did not get before the Tribunal earlier. And that is his own fault. He could have surrendered in 1995, when the first indictment was issued.