International Criminal Justice and its Relationship with National Courts

Two recent developments highlight some of the interesting relationships between international criminal justice institutions and national legal systems.

Yesterday, a Dutch Court ruled that three witnesses who had travelled to The Hague to testify in the Katanga trial have the right to apply for refugee status in the Netherlands. The ruling reverses an earlier decision made by the Dutch Immigration and Naturalization Service but confirms decisions issued by the Trial Chamber of the International Criminal Court released a few months ago and discussed on this blog.

Meanwhile, in Paris, the French government has refused to cooperate with the International Criminal Tribunal for the former Yugoslavia in its attempts to arrest Florence Hartmann, who has been convicted of contempt of court. The French authorities took the view that they are required by virtue of the Security Council resolution to cooperate in apprehending persons suspected of committing international crimes but that they have no duty as regards administrative matters like contempt. As permanent members of the Security Council and therefore godfathers of the Tribunal, I suppose they ought to know.

According to the New York Times, a spokesman for the Foreign Ministry in Paris, said that it would be impossible for France to fulfill the request because judicial agreements between France and the Tribunal do not apply to offenses sich as contempt of court.

What is the next step? I suppose the Tribunal should report France to the Security Council for non-compliance. I wonder what will happen then.

Obama, Medvedev and Hu Jintao may be Prosecuted by International Criminal Court, Pre-Trial Chamber Concludes

Pre-Trial Chamber I of the International Criminal Court issued a ruling earlier this week that has the consequence of stripping Obama, Medvedev and Hu Jintao of their immunity before the Court. This would mean, for example, that charges could be introduced against President Obama for the conduct of US forces in Afghanistan (which is a State Party to the Rome Statute) in the same way as they have been introduced against President Bashir for the conduct of Sudanese forces in Darfur (where jurisdiction results from a Security Council).

The decision does not of course mention Obama, Medvedev and Hu Jintao. It concerns the possible immunity of President Bashir.

Over seven pages, in a decision condemning Malawi for its failure to arrest Bashir, the Pre-Trial Chamber reviews a number of authorities. The decision reads like a lawyer’s brief, in that it is entirely one-sided. The Chamber does not address the difficulties or the arguments that go against its position. This is regrettable, but perhaps to be expected when it is a decision is issued in the absence of representations from the defence. Can it be a wise practice for the Pre-Trial Chamber to attempt to address serious and difficult matters of international law in the absence of detailed argument. Under such circumstances, shouldn’t a Chamber at least make an effort to confront the inconvenient arguments that stand in its way.

For example, it reaches the rather trite conclusion that there can be no immunity of a head of state before an ‘international tribunal’. But nowhere does it define an international tribunal or suggest how one is to be identified. It may well be that there are various types of international tribunal, and that rules of immunity apply differently depending upon the type of tribunal. In the famous Arrest Warrant case, the International Court of Justice said that immunity would not be available before ‘certain international criminal courts, where they have jurisdiction’. By implication, the International Court of Justice was saying that immunity would remain before ‘certain international criminal courts’. The Pre-Trial Chamber’s statement is much more absolute.

The issue of immunity was already addressed by the Pre-Trial Chamber that issued the arrest warrant against Bashir in March 2009. It is not apparent why this differently constituted Pre-Trial Chamber felt compelled to issue a new opinion, presenting the matter somewhat differently. Perhaps, in another year, yet another Pre-Trial Chamber, with different members, will issue yet another ex parte decision on the matter.

The legal argument of the Pre-Trial Chamber this time around is not very compelling. It cites authority from the 1919 Commission on Responsibilities but without noting that this was not the position taken by the Paris Peace Conference and is not reflected in the Treaty of Versailles. The Treaty of Versailles does indeed propose to try the German Emperor, in art. 227, but with the consent of Germany. That is why it is in the Treaty. If Germany’s consent were no required for the victors to try its head of state, then the proposed international tribunal would have been found in a separate agreement between the victors alone.

Then the Pre-Trial Chamber turns to the post-second world war tribunals. The citations do not refer to the issue of head of state immunity but rather to the defence of official capacity. There is a distinction. This can be seen in the Rome Statute itself, where article 27(1) deals with official capacity and article 27(2) deals with immunity.

I could go on. This is a complicated question. Much has been written. The Chamber does not refer to any of the thoughtful academic contributions on this subject, by scholars like Dapo Akande and Paola Gaeta.

There is an argument – although it is not without its own problems – by which there is no immunity for the likes of Bashir before the International Criminal Court because this is implied by the Security Council resolution referring Sudan to the Court. That, at least, is a more nuanced and subtle proposition. It would mean that Obama, Medvedev and Hu would continue to enjoy immunity from the Court except in the unlikely event of a Security Council referral that concerned them. In the final sentence of its opinion, the Pre-Trial Chamber notes that jurisdiction results from a Security Council referral, but it does not indicate why this might be significant.

But the Pre-Trial Chamber has gone much further in this recent ruling. Indeed, it seems to take the position that there is no immunity given that the International Criminal Court is an international tribunal. Presumably therefore article 27(2) is entirely superfluous.

Authority cited by the Pre-Trial Chamber includes some simplistic rulings from the ad hoc tribunals. But the ad hoc tribunals can claim to have been the offspring of the Security Council. Immunity would not be applicable there because the Tribunal is not created by a State but rather by the international community acting collectively.

The reason that the same analysis cannot apply to the International Criminal Court is that it is created by the 120 States Parties. The International Criminal Court is a treaty-based court. In principle, the Rome Statute can only bind member states. Article 27(2) removes immunities from heads of state. This only applies to heads of state of States Parties and cannot be invoked against heads of state of non-party States.

Some will argue that with 120 States Parties, the Court has reached a critical mass whereby it can really claim a degree of universality. This is not too convincing an argument either. The Court may have more than half the States in the world, but it does not represent half the population of the world. Vanuatu (population 250,000), the latest State to join the Court, did not make much impact in this respect.

If there is no immunity before any international criminal court, as the Pre-Trial Chamber seems to hold, would it be possible for Nauru, Monaco, Andorra, Taiwan and the Palestinian Authority to join together and create an international criminal tribunal where the President of the United States would be stripped of the immunity that he would otherwise possess before the national courts of those countries?

The immunity of heads of states results from customary international law. They cannot be deprived of it because other States so decide, whether they do this by their domestic law or by treaty. It is precisely for that reason that article 27(2) was included in the Statute. In the absence of article 27(2), even States Parties would be able to invoke immunity.

It would be very interesting to hear the position of the United States, Russia and China on this point, because it concerns them and their heads of State. In the 2005 report on Darfur, the late Antonio Cassese suggested that rulings by international criminal tribunals on points of law that are not subsequently contested by States may become accepted as custom. So it might be useful for the big powers that have not joined the Court to make their views on this known. I suspect that they agree with Bashir, and not with the Pre-Trial Chamber.

For more on this, see also Dov Jacob's blog.

Africa, Fatou Bensouda and the International Criminal Court

Warmest congratulations to Fatou Bensouda, of The Gambia, who has just been elected Prosecutor of the International Criminal Court. This is a stellar achievement for Ms Bensouda, who has many years of experience in international criminal justice, including eight as Deputy-Prosecutor of the Court itself.

Her election is being heralded as a gesture of reconciliation to African states by the Court. Certainly, she will be able to articulate the Court’s policies and speak to the people of Africa in a sensitive and appropriate way, something that regrettably cannot be said of her predecessor, Luis Moreno-Ocampo. Her comments always seem to be measured and thoughtful. Above all, those to whom she speaks sense that she respects them and takes their own views and sensitivities into account.

African States initially welcomed the Court, and ratified the Rome Statute in large, impressive numbers.  But in more recent years, Africa has turned lukewarm towards the institution. This is sometimes explained by the Court’s exclusive focus on conflicts in Africa. But Africans were keen on the Court precisely because they expected it to address their own troubled situations, and it never made sense that they would dislike the Court because it had too many African cases.

The root of the problem is not an obsession with Africa but rather a slow but perceptive shift of the Court away from the apparent independence shown in its early years towards a rather compliant relationship with the Security Council and the great powers.

The strategic choices made by the Prosecutor placed it within the comfort zone of the United States and its close allies. And as the Court increasingly looked like a piece of the larger international system, dominated as it is by powerful states from the North, Africa’s ardour for the institution has waned.

For example, when challenged by the peace and justice dialectic, the Prosecutor has suggested that while justice is the responsibility of the Court, peace falls to the Security Council. The African Union indicated its discontent with this perspective by a proposed amendment to the Rome Statute acknowledging a role for the General Assembly, where Africa’s role is more entrenched than in the Security Council, which has no permanent African members. The amendment was not realistic, but it underscored the problem. It is better for the Court to offer a comprehensive answer that balances peace and justice rather than to suggest it is part of a tag team, where the other player is the Security Council.

All of this is to say that while Fatou Bensouda will undoubtedly be a much better interlocutor with African States than Luis Moreno-Ocampo, the rift can only be healed by changes in policy. She (and the Court) will only regain the confidence of African states by courageous policy decisions. She deserves all of our encouragement in this difficult challenge.

There is an interesting discussion of her appointment on Al Jazeera that includes our own eloquent Joseph Powderly, a doctoral student at the Irish Centre for Human Rights and now a young professor at Leiden University in The Hague.

Call for Papers for the Jus Post Bellum Project Launch Conference

The Jus Post Bellum Project at the Grotius Centre for International Legal Studies at Leiden University has issued a call for papers for the Project's launch conference. The conference, entitled "'Jus-Post-Bellum': Mapping the normative foundations," will be held 31 May and 1 June 2012, in The Hague.  The organizers describe the Project as follows:

The proper ending of conflict and the organization of post‐conflict peace is one of the greatest challenges of contemporary warfare. This issue has resurfaced in the context of modern interventions and their aftermath. The Grotius Centre for International Legal Studies’ Jus Post Bellum Project investigates whether and how a contemporary jus post bellum may facilitate greater fairness and sustainability in conflict termination and peacemaking. It seeks to establish the historical and normative foundations of a modern jus post bellum, including its relationship to jus ad bellum and jus in bello. The project seeks to identify the contours, operation, and impact of this concept, based on analysis of historical peace settlements, contemporary peace agreements and case‐studies. In addition, the project seeks to develop a catalogue of rules and principles of post‐conflict peace in order to guide priorities and policy choices in a number of key areas: conflict termination and ending of conflict, the interplay between international humanitarian law and human rights law in post‐conflict settings, the balance between “local ownership” and foreign authority, reconstruction and rule of law reform, the treatment of individual criminal responsibility in peace settlements, and the allocation of property rights.

The organizers particularly seek papers, to be presented at the conference and considered for publication in a conference volume, that fall within these three issue areas:

► Conflict termination and the definition of "post"
► Modern conflicts and the definition of "bellum"
► Which law applies to the transition to peace -- the "jus" in jus post bellum
English-language abstracts of no more than 300 words, plus CV, should be submitted no later than Friday 13 January 2012, to jpb@cdh.leidenuniv.nl.
The full call for papers is here.  http://juspostbellum.com/resources/1/Launch%20Conference%20Call%20for%20Papers%20FINAL.pdf

Student Conference on Lubanga Trial: Call for Papers

The International Criminal Court Student Network (ICCSN) invites submissions for its 2012 Hague Conference:  The Lubanga Trial: Lessons Learned, March 8-9, 2012,  Den Haag Netherlands This conference offers undergraduate, graduate and law students, and early professionals/academics (generally within five years of terminal degree) studying or working in the field of International Criminal Law an opportunity to both present and discuss their research.  Submissions should be focused on the Lubanga Trial or the International Criminal Court.  Invited speakers will be asked to prepare comments or a paper. A number of papers will be selected for publication in the ICCSN's journal, Issues in International Criminal Justice. Full details are available at the conference website:  http://www.iccsn.com/lubanga

Dr Wibke Timmermann

From left, Ludo Hennebel, Wibke Timmermann, myself and Kathleen Cavanaugh.

Wibke Timmermann successfully defended her doctoral thesis in Galway on Monday. The thesis is entitled: 'Hate Speech and Incitmement in International Criminal Law'. Dr Ludovic Hennebel, of the Centre Perelman de Philosophie du Droit at the Université Libre de Bruxelles was the internal examiner, and Dr Kathleen Cavanaugh was the internal examiner. Congratulations, Wibke, on this great acheivement. I believe this is the tenth doctorate completed successfully at the Irish Centre for Human Rights in 2011.

New Warrant for Darfur, but Where is the Genocide Charge?

The Prosecutor of the International Criminal Court has applied for an arrest warrant against thecurrent Sudanese Defence Minister, Abdelrahim Mohamed Hussein, for crimes against humanity ande war crimes. According to the presss release from the Office of the Prosecutor:

The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.

In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein. “The evidence shows that this was a state policy supervised by Mr. Hussein to ensure the coordination of attacks against civilians”, said Moreno-Ocampo.

“Moreover, the evidence shows that directly and through Mr. Harun, Mr. Hussein played a central role in coordinating the crimes, including in recruiting, mobilizing, funding, arming, training and the deployment of the Militia/Janjaweed as part of the Government of the Sudan forces, with the knowledge that these forces would commit the crimes,” said the Prosecutor.

Where is the genocide charge? In the case of President Bashir, the Prosecutor went on appeal when the Pre-Trial Chamber refused to authorize a charge of genocide. I have heard him lecture about ‘the ongoing genocide by attrition’ that continued until 2008 or 2009. For all I know, the Prosecutor thinks that genocide is still going on. How is it that there is an ongoing genocide but that the Minister of Defence does not seem to be involved? After all, the charges against Bashir were essentially based on the idea that as President of the country, he was responsible for the attacks. So why are the attacks genocidal for Bashir but not for Hussein?

The whole business smacks of incoherence. When he applied for the arrest warrant against Bashir, the Prosecutor spoke of Bashir’s orders to commit genocidfe, and said: ‘The attacks on villages across Darfur from March 2003 to the present were designed to kill members of the targeted groups and force the survivors from their lands, but also to destroy the very means of survival of the groups as such as described in paragraph 15 above.’ Aren’t these the facts that Hussein is charged with too?

I would make another observation about the recent statement by the Office of the Prosecutor. I do not think that Pre-Trial Chamber I ‘ruled that Local Security Committees coordinated these attacks’. All that the Pre-Trial Chamber did was confirm that there were ‘reasonable grounds’ for the Prosecutor’s allegations, which is not at all the same thing. It is a big mistake to describe such rulings of a Pre-Trial Chamber, made ex parte (that is, without hearing the defence) and on the basis of unchallenged evidence, a ruling on a factual issue. Those who write the press releases in the Office of the Prosecutor might exercise a bit more caution.

China and the Death Penalty: Signs of Progress

I’m just back from a visit to China where I participated in an important seminar on reform of the death penalty. It was jointly sponsored by the Chinese Ministry of Foreign Affairs and the Office of the High Commissioner for Human Rights. There were about 30 people in attendance, including the leading specialists on the subject in China from the universities, the National People’s Congress, the Supreme People’s Court, prosecutors and defence counsel. The United Nations brought three experts, Roger Hood of Oxford University, Hans-Jörg Albrecht of the Max Planck Institute and myself.

One after another, the Chinese specialists took the floor to affirm their commitment to the reform and the eventual abolition of the death penalty. We discussed many of the features of the imposition of capital punishment in China.

There have been some significant reforms in death penalty practice in recent years. In 2007, review of death sentences by higher courts became mandatory. In 2011, 13 crimes for which the death penalty could be imposed were repealed, and a prohibition on executing persons over 75 was adopted.

Notoriously, China does not issue statistics on the number of executions that are carried out. We have been told over and over again that this is a ‘state secret’. Frustrated by this unacceptable situation, Amnesty International has decided to stop even speculating on the number of executions. It says simply that China’s executions number in ‘thousands’, and that China accounts for more death sentences than the rest of the world put together.

Nevertheless, our interlocutors at the seminar insisted that the total number of death sentences has dropped as a result of the 2007 reforms by approximately 50%. If that is true – and I have no reason to doubt what the Chinese scholars tell us – then China has made very significant progress in recent years. We were also told that the Supreme People’s Court now grants about 10% of the death penalty appeals that it hears. That figure is not inconsistent with the 50% reduction, and probably reflects the fact that the more questionable death sentences are now eliminated by the lower courts before they even get to the highest appellate level.

The repeal of the death penalty provisions for 13 crimes earlier this year seemed to concern rather obscure offences, and my impression is that this did not contribute in a very significant way to reducing the overall volume of capital sentences. However, it was cited as something of symbolic importance. There was broad agreement at the seminar that further progress needs to be made, and that in the short to medium term China should cease executions for all non-violent crimes. I have no idea what percentage of the current executions concern drug trafficking or corruption, and what percentage is reserved for murder. An emphasis was placed on developing means by which the death penalty can be reduced through judicial intervention, this being a more promising approach than legislative reform. That makes sense, and is consistent with what has taken place in many countries in Europe and elsewhere that have moved towards abolition in recent decades.

The overall message is one of a commitment to reform, and that is a very good thing. That it is situated within a perspective of full abolition is also extremely positive and encouraging. The information is inadequate and the statistics are lacking. Despite this, the information that we do get indicates that there has been much improvement. It is important to recognize this and to encourage further change.

In my concluding comments at the seminar, I suggested that China might find a way to express its evolving view on the death penalty by abstaining when the bi-annual resolution on capital punishment comes before the United Nations General Assembly next November.

This positive assessment is not meant to suggest that a huge amount does not remain to be done (nor to imply that China does not have other serious human rights problems). As a reform measure, China should eliminate capital punishment for all crimes but murder. It should record and publish statistics, not only to satisfy international curiosity but in order to inform the research and the ongoing debate within China. Research on the subject is still very rudimentary. This is not helped by the fact that the numbers are kept secret.

In other countries where the death penalty remains in force, like the United States, reform is driven by the vigilant work of dedicated defense counsel and a robust civil society. Although there are some very committed lawyers who work in the area in China, there is no real comparison with what happens in the United States. And civil society in the form of NGOs is not very visible at all in China. The main forum for debates, it would seem, takes the form of conferences and seminars like the one held last week.

Monitoring the status of capital punishment is very much an exercise in observing trends and estimating their extent. The United Nations itself has been rather conservative, and little more than twenty years ago it still seemed to doubt that there was a clear momentum towards global abolition. China’s behaviour in recent years reflects the global trend among states that retain capital punishment towards very significant reduction in its extent. There are only a few exceptions, of which Iran is the main one. If it is true that China has cut back its executions by 50% in recent years, then that is a more dramatic reduction than if every other state in the world that imposes capital punishment were to abolish the practice!

Seven Days in Prison and an Arrest Warrant Ordered by the ICTY for Florence Hartmann

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has ordered the imprisonment of the former press attaché to the Prosecutor of the Tribunal for a term of seven days as punishment for a finding of contempt of court. The entire file, with the relevant decisions, can be found here.

The case relates to the book Paix et châtiment, written by Hartmann after she left the Tribunal. It was published in France by Flammarion. The book discloses the existence of decisions of the Appeals Chamber that were to have remained confidential.

By the judgment of 14 September 2009, she was sentenced to pay a fine of €7,000, to be paid in two installments of €3,500, one on 14 October 2009 and the other on 14 November 2009. On 19 July 2011 the Appeals Chamber dismissed her appeal of the decision, and ordered that the fine be paid in two equal installments of €3,500 on 18 August 2011 and 19 September 2011. On 16 November 2011 the Appeals Chamber noted that the fine remained unpaid, and ordered the issuance of a warrant of arrest. It also ordered that the fine be converted to a term of imprisonment of seven days.

I understand that Florence Hartmann lives in Paris, and that the warrant of arrest is directed specifically at the French authorities. Several prominent French intellectuals have issued a statement in protest. See the statement published in Le Monde some days ago. The NGO Reporters Without Borders has also challenged the order.

It has always been doubtful in law that the judges of the ICTY even had the power to cite people for contempt of court committed outside the courtroom. Their jurisdiction consists of serious violations of international humanitarian law committed on the territory of the former Yugoslavia. Unlike the International Criminal Court, there is no specific provision in the Statute of the Yugoslavia Tribunal allowing for punishment of contempt. The Tribunal’s judges, through the Rules of Procedure and Evidence, have given themselves such a power, premised on the idea that it is implicit in their authority to administer justice.

Assuming for the sake of argument that the judges have this inherent or implied power, it certainly cannot be unlimited. Punishing a writer for publishing a book in Paris may well have crossed the line. Contempt charges have always been a bit of a challenge for impartial justice because of the tendency for the ‘victim’ to be both prosecutor and judge. Moreover, in this case the ‘victim’ is also the lawmaker. The Tribunal is hardly the place for a genuine debate about the existence of such extensive implied or inherent powers.

But to enforce the judgment, the French justice system will have to get its feet wet. Perhaps French judges will bristle at the far-reaching scope of the powers the Tribunal has assumed. They may find it offensive that a sentence of imprisonment is imposed upon the writer of a memoir. And if they do not, this case may well end up in Strasbourg at the European Court of Human Rights. In addition to the freedom of expression issues that are raised, perhaps the Court will also consider whether imprisonment for failure to pay the fine constitutes inhuman or degrading punishment. It will be interesting to see the world’s leading international human rights court sitting in judgment of the world’s most distinguished international criminal court.

Ireland and the UN Framework for Business and Human Rights: A Conference

The Irish Centre for Human Rights and the School of Law, National University of Ireland Galway, will hold a conference on 24 March 2012 to explore and analyse issues of law and policy for Ireland arising from the 2011 adoption by the United Nations of Professor John Ruggie's framework for business and human rights. The framework emphasises a State's duty to protect human rights, a corporate responsibility to respect human rights and the need to provide remedies to respond to violations of human rights by business. This conference seeks to look beyond the voluntary corporate social responsibility approach to business and human rights; as Maurice Manning, President of the Irish Human Rights Commission has observed, 'voluntarism can never be a substitute for global standards on businesses' mandatory compliance with human rights'. The organisers welcome in particular contributions which address seek to address legal questions which arise in relation to the UN framework on business and human rights. Ireland represents an obvious case study in this context, given the presence of numerous multinational corporations, increasing privatisation of public services and allegations of corporate involvement in human rights violations both in and outside of Ireland. The conference aims to address the following topics:

·         Legal and policy approaches to regulation of Irish companies for human rights

·         Obligations of the State and companies when public functions are privatised

·         Role of extraterritorial jurisdiction in Irish law to address violations committed overseas by Irish companies or multinationals based here

·         The potential role of criminal law to address violations of human rights by business

·         Civil litigation as a means accountability - lessons from the Alien Tort Claims Act

·         Remedies for victims

Abstracts should be sent by 21 December 2011 to: Dr Shane Darcy (shane.darcy@nuigalway.ie) and Dr Ciara Hackett (ciara.hackett@nuigalway.ie). Successful applicants will be informed in January 2012 of their acceptance. For further information and registration for the conference please contact:
Hadeel Abu Hussein: h.abushussein1@nuigalway.ie

Human Rights and Iran: Engagement or Boycott?

The UN Watch blog has criticised me for speaking in Tehran at an international conference earlier this week.
My speech in Tehran yesterday morning began by referring to recent developments in Egypt, and more generally to the quest for freedom throughout the Middle East over the past eleven months. The theme of my presentation was the responsibility of the International Criminal Court and of other international bodies to intervene in order to protect people exercising their legitimate rights of freedom of expression and freedom of assembly. The message for Iran was inescapable.
I also recalled the film Nuremberg: Its Lesson for Today that Sandra Schulberg showed to the conference the previous evening (discussed in a previous blog entry). In my remarks, I clearly indicated the importance of the film's message in challenging those who attempt to deny the Holocaust. I urged Iran to ratify the Rome Statute of the International Criminal Court. I also spoke about the issue of capital punishment, where Iran stands virtually alone now as a state where the rate of executions is actually increasing.

Furthermore, I took advantage of my visit to Tehran to lecture to university students in a classroom setting about international justice, the need to abolish the death penalty and the promotion of human rights.

It is important that such messages be transmitted in Iran, where NGO activists are intimidated and persecuted and where academics are threatened with dismissal and imprisonment if they say similar things. To the extent a space exists in Tehran for foreign scholars like myself, it is our duty to travel there and speak as freely as we can. We would be betraying those who fought and died in the post-election protests two years ago if we refused to do this.

Engagement with Iranian civil society is a much better option than the approach that Hillel Neuer and UN Watch espouse. The latter amounts to ostracism and boycott, and is unlikely to contribute to progressive development within Iran.

In reality, the critique of my engagement with Iran by UN Watch is a rather incoherent diatribe that begins by condemning my host, the NAM Centre for Human Rights and Cultural Diversity, essentially because it was created by the Non-Aligned Movement (an organization that comprises more than half the states in the world). Then it goes on to attack the Non-Aligned Movement itself, because it gives ‘a free pass to the oppressive rulers of Iran, Syria, Cuba, China, Zimbabwe and others’. But that can hardly be true, because the resolution condemning Iran adopted in the General Assembly’s Third Committee a few days ago could only have passed with the support or abstention of many members of the Non-Aligned Movement.

The charge that ‘cultural diversity’ is incompatible with universal human rights is a very simplistic proposition. Human rights have always involved a degree of deference to local cultures and practices. Even within Europe, which may appear culturally monolithic to the rest of the world, the European Court of Human Rights has consistently acknowledged the relationship between universal rights and ‘cultural diversity’ through its doctrine of the margin of appreciation. Human rights will make more headway in Iran by addressing the cultural issues than it will by sanctimonious lectures about universality.

UN Watch constantly attacks the UN for one-sided criticism of Israel, but then commits the same sin with its obsessive focus on Israel’s critics. I suspect that had I spoken at an event associated with the Non-Aligned Movement of states in India or Mexico or Indonesia or somewhere else far from the concerns of Israel’s propagandists, there would have been no interest at all from Hillel Neuer and his blog. He complains about demonization of Israel and then demonizes its enemies.

Iran, Syria, Cuba, China and Zimbabwe should certainly not get a free pass. But then neither should Israel. Whether I am speaking in Tehran or in Tel Aviv, I hear the same hypocritical grumbles about how double standards prevail in the area of human rights.

UN Watch no doubt benefits from the warm glow (and confusion) that results from the impression that it is associated with the distinguished and credible NGO Human Rights Watch, but of course there is actually no connection. UN Watch is more like the Geneva equivalent of a right-wing US radio talk show. 

Academics are fortunate because we can, in a sense, pass under the radar. I would probably have been refused a visa had I been asked to go and speak on behalf of Amnesty International. But as a academic, I can get in to the country and then speak my mind. It would be a shame to pass up the opportunity by boycotting such events, as UN Watch urges me to do.

The Nuremberg Trial and Tehran: Truly a Lesson for Today

Sandra Schulberg's film Nuremberg: Its Lesson for Today was shown in Tehran on Tuesday night at the conference on International Humanitarian Law co-sponsored by the NAM Centre for Human Rights and Cultural Diversity, the International Committee of the Red Cross and the Irish Centre for Human Rights. Sandra was present for the showing, and when it was over she and I spoke to the audience about the film and more generally about justice and the Holocaust.
Readers of the blog will be aware that there is a certain constituency in Iran that denies the historic truth of the Holocaust, and this underscored the importance of showing the film in Tehran. People came up to us afterwards and asked if everything in the film was really true. The answer, of course, is that the film is a documentary based upon original footage shot during and after the war. Although the film has lengthy scenes from the trial itself, there is also a great deal of information about the Nazi atrocities including the extermination camps.
The original film was made by Sandra's father, Stuart Schulberg. We were told that following the showing some rumors were circulating that this was 'American propaganda', based on the undisputed fact that it was made for the United States Department of the Army in 1948. But as Sandra explained to the audience, the film was actually suppressed in the United States, which by 1948 had come to see the Soviet Union as the real villain and was anxious not to be too antagonistic to its new ally, post-war Germany. Sandra notes that Robert Jackson, who had led the American prosecution team at Nuremberg before returning to his position as justice of the Supreme Court, unsuccessfully tried to obtain the film for a showing to the New York bar.
After some retouching of the Persian subtitles, the film should be available widely in Iran. Many in the audience asked how they could get a copy. Wide dissemination of Nuremberg: Its Lesson for Today will help clarify the historical truth of Nazi atrocity and, at the same time, challenge those who attempt to deny it.

Conference on International Criminal Justice at 9 Bedford Row

The barristers chambers of 9 Bedford Row in London, where I am a 'door tenant', held a conference Saturday on international criminal law. The presentations are available on Youtube, including my own lecture on the history of of the legal concept of crimes against humanity. Other participants included Steven Kay, who spoke about the proceedings at the International Criminal Court in the Kenya cases, Toby Cadman on the Bangladesh tribunal, and David Young on the Special Tribunal for Lebanon, and several other speakers who delivered presentations of great interest.

Libya and the ICC: Comment by Carsten Stahn

Carsten Stahn has written a very interesting article on the recent developments concerning the prosecution of the two Libyans at the International Criminal Court. Click here.

Sunny Jacobs and Peter Pringle

Sunny Jacobs and Peter Pringle were married earlier this month. Read the charming account of the wedding, and of their lives, in the New York Times.
Both Sunny and Peter were sentenced to death, Sunny in Florida and Peter in Ireland, and both were later exonerated. They met in Galway many years ago when Sunny was doing a lecture tour for Amnesty International as part of a campaign against capital punishment. Sunny and Peter have often visited the Irish Centre for Human Rights where they have spoken with students about their lives on death row.
Congratulations to you both and warmest wishes for a happy life together!
Thanks to Michael Radelet.

Dr Brendan Tobin

From left, myself, Vinodh Jaichand, Brendan Tobin, Patrick Thornberry and Ray Murphy.

Brendan Tobin successfully defended his doctoral thesis Friday at the Irish Centre for Human Rights. Prof. Patrick Thornberry was the external examiner and Dr. Vinodh Jaichand was the internal examiner. The thesis was entitled: Why Customary Law Matters. Indigenous Peoples’ Customary Laws and Human Rights.

Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute

Earlier this week, I posted a blog entry discussing possible accession by Palestine to the Rome Statute. Were Palestine to attempt accession, by depositing a document with the Secretary-General of the United Nations (who is depositary of the Rome Statute), the question of the Secretary-General’s reaction arises. I had dinner with Prof. Andrew Clapham in Geneva yesterday evening, who helpfully pointed me to the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties.

The Summary of Practice discusses multilateral treaties open to ratification or accession by ‘all States’. This is the case for the Rome Statute of the International Criminal Court. Here is the relevant paragraph (references omitted).

2. The "all States formula"

81. Nevertheless, a number of treaties adopted by the General Assembly were open to participation by "all States" without further specifications (see, for example, the Convention on the Suppression and Punishment of the Crime of Apartheid and the Convention on the Prevention and Punishment of Crimes against Diplomatic Agents and Other Internationally Protected Persons). In reply to questions raised in connection with the interpretation to be given to the all States formula, the Secretary-General has on a number of occasions stated that there are certain areas in the world whose status is not clear. If he were to receive an instrument of accession from any such area, he would be in a position of considerable difficulty unless the Assembly gave him explicit directives on the areas coming within the "any State" or "all States" formula. He would not wish to determine, on his own initiative, the highly political and controversial question of whether or not the areas whose status was unclear were States. Such a determination, he believed, would fall outside his competence. He therefore stated that when the "any State" or "all States" formula was adopted, he would be able to implement it only if the General Assembly provided him with the complete list of the States coming within the formula, other than those falling within the "Vienna formula", i.e. States that are Members of the United Nations or members of the specialized agencies, or Parties to the Statute of the International Court of Justice.

3. The practice of the General Assembly.

82. This practice of the Secretary-General became fully established and was clearly set out in the understanding adopted by the General Assembly without objection at its 2202nd plenary meeting, on 14 December 1973, whereby "the Secretary-General, in discharging his functions as a depositary of a convention with an 'all States' clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession. The "practice of the General Assembly", referred to in the above-mentioned understanding is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the "'Vienna formula". Such indications are to be found in General Assembly resolutions, for example in resolutions 3067 (XXVIII) of 16 November 1973, in which the Assembly invited to the Third United Nations Conference on the Law of the Sea, in addition to States at that time coming within the long-established "Vienna formula", the "Republic of Guinea-Bissau" and the "Democratic Republic of Viet Nam", which were expressly designated in that resolution as "States".

Thus, should the General Assembly recognize Palestine as a State in the coming weeks, the Secretary-General would be satisfied and would accept an accession by Palestine to the Rome Statute. The so-called ‘Vienna formula’ is derived from the Vienna Convention on the Law of Treaties, and allows participation by ‘all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention’. But this is not what the Rome Statute provides, so the Vienna formula is not relevant here.

It seems that even without General Assembly endorsement, the recognition of Palestine as a State by UNESCO would be sufficient. Here are the relevant paragraphs:

 C. Applications of the practice of the General Assembly 1. Colonial countries upon independence 

84. Further decisions of the General Assembly, taken within the context of its deliberations on the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (see para. 264 below), noted with satisfaction the accession of various countries to independence. Such was the case, for example, with the decision concerning Brunei taken within the context of agenda item 18 at the thirty-eighth session. These decisions have been considered by the Secretary-General as allowing for the inclusion of those newly independent countries in the "all States" formula. 

2. Cook Islands 

85. The question of whether the Cook Islands was an "independent" entity,
i.e. a State, was also raised. For a period of time it was considered that, in view of the fact that the Cook islands, though self-governing, had entered into a special relationship with New Zealand, which discharged the responsibility for the external affairs and defence of the Cook Islands, it followed that the status of the Cook Islands was not one of sovereign independence in the juridical sense. Moreover, the General Assembly, in its resolution 2064 (XX) of 16 December 1965 on the question of the Cook Islands, had reaffirmed the responsibility of the United Nations "to assist the people of the Cook Islands in the eventual achievement of full independence, if they so wish, at a future date". That resolution, which was adopted in view of a change in the status of the Cook Islands, further indicated that the latter had not yet attained full independence within the meaning of the term in United Nations usage. It followed that, unless specifically invited to participate in a treaty, the Cook Islands could not invoke the "all States" clause.86. However, in 1984, an application by the Cook Islands for membership in the World Health Organization was approved by the World Health Assembly in accordance with its article 6, and the Cook Islands, in accordance with
 article 79, became a member upon deposit of an instrument of acceptance with the Secretary-General.... In the circumstances, the Secretary-General felt that the question of the status, as a State, of the Cook Islands, had been duly decided in the affirmative by the World Health Assembly, whose membership was fully representative of the international community. The guidance the Secretary- General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical to the decision of the World Health Assembly. The same solution was adopted by the Secretary-General when Niue, in 1994, applied for membership in the World Health Organization. Moreover, on the basis of the Cook Islands' membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture Organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the "all States" formula, were it to wish to participate in treaties deposited with the Secretary-General.

I think the previous paragraph makes it clear that admission to UNESCO would be satisfactory as far as the Secretary-General is concerned. Its membership is ‘fully representative of the international community’ and any guidance from the General Assembly would be ‘substantially identical’ to the position taken by UNESCO earlier this week.

Thus, nothing stands in the way of Palestine acceding to the Rome Statute except Palestine itself.
The Prosecutor of the International Criminal Court might also take some guidance from the practice of the Secretary-General. If UNESCO membership is good enough for the Secretary-General in terms of accession to an 'all States' clause, then it should be good enough for the Prosecutor in terms of the application of article 12(3) of the Rome Statute. He should now move on to an assessment of the substance of the allegations that crimes under the Statute have been committed in Palestine since 1 July 2002.

Bizimungu Judgment

In September, I complained about the judgment in the Bizimungu et al. case at the International Criminal Tribunal for Rwanda. The Tribunal announced the verdict, which involved the acquittal of two of the four defendants, but did not immediately publish the judgment. It is now available here.

Palestine Should Accede to the Rome Statute

Palestine has been admitted as a member of UNESCO. In yesterday’s vote, the General Conference of the United Nations Educational, Cultural and Scientific Organisation agreed by by 107 votes in favour, with 14 against and 52 abstentions, to admit Palestine. Ireland was among those states that voted in favour, along with France, Austria. Brazil, Russia, China, India and South Africa. This sits within the campaign for admission to full membership in the United Nations itself.

Article II(2) of the UNESCO Constitution provides that a state which is not a member of the United Nations may be admitted by a two-thirds vote of the General Conference. This is what happened yesterday.

The hurdle at the United Nations itself is the requirement in the Charter of the United Nations that membership be agreed by the Security Council. Israel’s big friend in the Security Council is very likely to veto this.

But in its campaign for recognition as a state, Palestine should consider another forum: the International Criminal Court. Article 125(3) of the Rome Statute states: ‘This Statute shall be open to accession by all States.’ Palestine would accede to the Statute rather than ratify it, because ratification is available to States that have previously signed the Statute. The deadline for signature was 31 December 2000. No significant consequence is attached to the distinction between ratification and accession.

In contrast with both UNESCO and the United Nations, there is no requirement of a decision or vote in the case of membership of a state which is not a member of the United Nations. The only obstacle in the case of the Rome Statute lies with the Secretary-General of the United Nations, who is the depository of the treaty. He could decide to refuse to accept accession by a body deemed not to constitute ‘a state’. Presumably this is what the Secretary-General would do if an instrument of accession was submitted by Taiwan or by the Turkish Republic of Northern Cyprus. But how could the Secretary-General refuse the accession by ‘a state’ that has already been recognized as ‘a state’ pursuant to the Constitution of UNESCO?

Palestine has already engaged with the International Criminal Court by filing a declaration in accordance with article 12(3) of the Rome Statute. This enables ‘a state’ to grant jurisdiction to the Court without actually ratifying or acceding to the Statute. Such a declaration does not go through the Secretary-General of the United Nations. Initially, it is for the Prosecutor to consider whether the declaration is valid. He has been reflecting on the legality of the declaration for more than two and a half years. I recently asked someone from the Office of the Prosecutor what was going on and was told: ‘We are waiting for the outcome in the United Nations.’ The result in the Security Council is probably can be anticipated. But the UNESCO vote may have short-circuited that issue as far as the Court is concerned.

There may be reasons why Palestine would not want to join the International Criminal Court. This would have the consequence of subjecting all conduct on its territory to the jurisdiction of the Court. But accession can only be a positive development in terms of the protection of human rights within Palestine. I hope Palestine (as well as Israel) will take such a step. It will contribute not only to its own campaign for recognition as a state but also to lasting peace in the Middle East.

An accession by Palestine would also contribute to resolving the issue of the validity of the declaration under article 12(3). In one sense, the declaration would no longer be necessary, at least from the point of accession. It is not entirely clear, however, whether accession by Palestine would mean that the article 12(3) declaration could apply to the past, to a period when Palestine may not have been ‘a state’ within the meaning of the Rome Statute. But this is really a detail.

The Security Council will consider Palestine’s application for membership in the United Nations in a couple of weeks. If Palestine wants to build the momentum that it achieved by yesterday’s UNESCO vote, it should submit its accession to the Rome Statute immediately.