Friday, 29 April 2011

Sri Lanka Report from Secretary-General

The Secretary-General's report on violations of human rights and international humanitarian law in the final months of the Sri Lankan government's campaign to annihilate the Tamil Tigers, in 2009, was issued earlier this week. In a sense, this is the Sri Lankan counterpart to the 'Goldstone Report' on the Gaza conflict that took place a few months earlier.
The report documents war crimes and crimes against humanity committed by the Sri Lankan government. It also condemns war crimes perpetrated by the Tamil Tigers. In addition to the evidence of violations, much of which was already well-known and set out in detail in NGO materials, the report provides an additional chapter in the growing literature on the relationship between crimes against humanity and war crimes or, put another way, between human rights law and the law or armed conflict.
Recommendations call for the Secretary-General to consider proposing a new mechanism to deal with these accusations. Surprisingly, there is no explicit call for the situation to be referred to the International Criminal Court. Its conclusions might have called upon the Security Council to consider referring the situation to the Court, as it has done recently with Libya and previously with Sudan.
Perhaps the explanation lies in the authority for the Secretary-General's report, which was not authorized by either the Human Rights Council or the Security Council, as is normally the case. The Secretary-General acted on his own in asking for an 'advisory' report. Now, to get more muscle into the recommendations, he must go back to one of the Council's and get them to move on this.
The report itself says that the Human Rights Council 'should be invited to reconsider' the resolution it adopted in May 2009 'in light of this report'. The resolution was a tame, mealy-mouthed effort that did not adequately address the brutal attacks on civilians committed by the Sri Lankan government as part of the final stages of its struggle with the Tamil Tigers.

Cambodia Tribunal Monitor

The Cambodia Tribunal Monitor, which is co-edited by Youk Chang and David Scheffer, has been listed as one of six 'Honorees' in the law category of the annual Webby awards. These represent the best websites from among 10,000 entries, selected by the Academy of Digital Arts and Sciences.

Thursday, 28 April 2011

Transitional Justice in Burundi

While in Burundi earlier this week, I learned of a report issued late in 2010 resulting from a popular consultation on transitional justice in the country. It is available on the website of the High Commissioner for Human Rights (French only, I think).
The report shows broad support for a Truth and Reconciliation Commission. The government has pledged to create the institution this year. But there was much skepticism in Burundi about the government's determination to do so. There are also concerns about the independence of the commissioners who may be appointed to the commission.
There is also much talk of a criminal tribunal to deal with atrocities committed in Burundi. The consultation shows a broad acceptance of international participation, including judges from abroad, which will give the process greater credibility.
There are shortcomings to such a consultation, in that they ask rather sophisticated questions of a general public that is not particularly well-informed. It is a good, democratic initiative, but the findings are perhaps not as compelling as they might be. For example, when asked whether a majority of judges should be men, a large majority said yes. When asked if a majority of judges should be women, a large majority said yes. It will be hard to satisfy both of these criteria.
Burundi is positioning itself to be a laboratory for transitional justice. One of the prevailing ideas is that criminal justice should come after the work of the truth and reconciliation commission. I am not so sure about this. Certainly the experience in Sierra Leone shows the viability of a truth commission and an international criminal tribunal working at the same time, without major difficulty. Having the two operational at the same time actually helps the general public to understand the different functions of the institutions. But if one precedes the other, there will be uncertainty and doubts about the one that follows, and this will complicate the work of both institutions.
Burundi has waited long enough for justice. Postponing criminal prosecution so that a truth commission can operated may not be such a wise move.

Letter from Nairobi

The blog has been silent for several days. I've been in Burundi, as part of the field visit of the Board of Trustees of the UN Voluntary for Technical Cooperation in the field of human rights, and couldn't get access to the blog from my hotel. Yesterday, we flew to Nairobi, and today we had a fascinating briefing about the human rights situation in Kenya.
Kenya may be the only country in the world where the International Criminal Court seems to dominate the headlines. The 'Ocampo Six' - that is, the six against whom summonses to appear before the Court have been issued - are referred to regularly, without the need for further explanation.
The most gratifying news is that the activity of the International Criminal Court appears to have a calming, deterrent effect on political extremists. There are markedly different tones when they speak in public. In particular, great caution seems to be exercised in the use of words that might constitute incitement.
The transformation took place in stages. Initially, the Court was mocked by its opponents, who suggested it would take many years for it to be operational. Then, when the summonses were issued in early March, there was more deference. And now that the accused have actually appeared and formally subjected themselves to the conditions imposed by the Pre-Trial Chamber, there seems to be a recognition that the Court has teeth.
This bodes well for Kenya, and for other parts of the world too.
The Truth, Justice and Reconciliation Commission seems to be finding its way too, after a rather grim beginning. There was much controversy about the President of the Commission, who was himself a suspect and whose behaviour may well be addressed by the Commission itself. But the Commission is now fully operational, and is holding hearings in different parts of the country.

Sunday, 17 April 2011

Parliamentary Assembly of Council of Europe Adopts Resolution on Capital Punishment

The death penalty in Council of Europe member and observer states: a violation of human rights
Resolution 1807 (2011)1

1.       The Parliamentary Assembly reiterates its principled opposition to the death penalty in any circumstances. It takes pride in its successful contribution to ridding almost all of Europe of this inhuman and degrading punishment, by having made abolition of the death penalty a condition for accession to the Council of Europe.
2.       The European experience has shown conclusively that the death penalty is not needed to check violent crime and that political leaders who led the way towards abolition did not suffer any backlash from public opinion.
3.       The Assembly urges the United States of America and Japan, as observer states, and Belarus, which aspires to membership of the Council of Europe, to join the growing consensus among democratic countries that protect human rights and human dignity by abolishing the death penalty.
4.       As regards the United States of America, the Assembly:
    4.1.       congratulates those American states which have recently abolished the death penalty (in particular, New Mexico, New Jersey and New York State) and invites others, as well as the federal jurisdiction, to follow their lead;
    4.2. regrets that the arbitrary and discriminatory application of the death penalty in the United States and the public scandals surrounding the different methods of execution in use (lethal injection, electric chair, firing squad) have stained the reputation of this country, which its friends expect to be a beacon for human rights;
    4.3. considers that, particularly in the present time of budgetary constraints, scarce resources are better used to improve crime prevention and to increase the rate of clearance of serious crimes rather than to fight protracted legal battles in order to put to death individual perpetrators.
5.       Also, as regards the Avena (Mexico v. United States of America) judgment of the International Court of Justice, the Assembly urges that:
    5.1. the federal legislature pass legislation enabling those Mexican nationals condemned to death without having been provided with the consular assistance mandated by the Vienna Convention on Consular Relations to be retried following the correct procedures;
    5.2. all judicial authorities in the United States be given the possibility to ensure that in future foreign nationals who may be subjected to the death penalty are provided with appropriate consular assistance, in compliance with the international obligations of the United States under the Vienna Convention.
6.       As regards Japan, the Assembly:
    6.1.       is deeply disappointed by the missed opportunity of the presence in recent governments of openly abolitionist ministers of justice. De facto moratoria were unfortunately followed by a continuation of the atrocious practice of executions carried out under a shroud of secrecy and taking the death row inmates and their families by surprise;
    6.2.       expects the recent introduction of the lay judge system in Japan to contribute to increasing popular awareness both of the cruelty of the death penalty system and its fallibility, thus promoting its eventual abolition.
7.       As regards Belarus, the Assembly, recalling its Resolutions 1671 (2009) and 1727 (2010):
    7.1.       strongly condemns continued executions since 2008, which have caused much damage to the credibility of Belarus’ bid to move closer to the family of democratic European states which protect human rights and human dignity;
    7.2.       urges the competent authorities to declare a moratorium on executions without further delay and take the necessary steps to abolish the death penalty in law.

1 Assembly debate on 14 April 2011 (17th Sitting) (see Doc. 12456, report of the Committee on Legal Affairs and Human Rights, rapporteur: Ms Wohlwend). Text adopted by the Assembly on 14 April 2011 (17th Sitting).
Thanks to Mark Warren.

Parity of Women and Men in New Tunisian Electoral Law

The Tunisian electoral law adopted a few days ago provides for parity of women and men in the election of legislators. Article 16 of the Law which governs the 24 July elections requires equal representation of women and men on the lists for the proportional representation scheme so as to ensure parity in the constituent assembly.
A month or so ago, this blog lamented the results in the recent Irish elections, where women made up only 15% of those elected. Ireland should follow Tunisia's example in order to correct this situation.
The Tunisian legislation was praised by Catherine Ashton on behalf of the European Union.
It represents a great human rights dividend from the profound changes sweeping the Arab world, and a model that hopefully others in the region (and elsewhere) will follow.
The legislation also includes a more controversial provision by which those who were members of the previous government are excluded from running for office.
Thanks to Christine Chanet.

Friday, 15 April 2011

ICC Conference in The Hague in May

University of Leiden-Campus The Hague and the Grotius Centre for International Legal Studies are pleased to announce that a launch conference for the Post-Conflict Justice and 'Local Ownership' project will take place on 5-6 May 2011.  Panels will address the following topics:
- Conceptualizing 'Local' Justice at the International Criminal Court
- Political Implications of ICC Interventions
- Social Implications of International Criminal Justice
- Civil Society Roundtable
- Influence and Implementation of the Rome Statute
- Complementarity in Critical Perspective
- Keynote remarks by Ruti Teitel, Ernst C. Steifel Professor of Law at New York Law School
- Closing roundtable (moderated by Pierre Hazan)

A draft agenda and additional information may be accessed here.
The conference is free and open to all. To register, e-mail your name, professional affiliation, and contact information (phone and email) to Indicate whether you will be attending the first or second day of the conference, or both. Registration must be received no later than Friday 29 April. Because there is no registration fee, the organizers will not be able to provide lunch for conference attendees.

Death Penalty Worldwide Database

A thorough and authoritative data base on death penalty law and practice throughout the world is now available at Northwestern University, thanks to the efforts of Prof. Sandra Babcock. Click here. Here is the statement issued at the time of the launch earlier this week:

Today marks our launch of the Death Penalty Worldwide database and website. We have been working on this project for more than two years, and it has been more work than we ever could have anticipated. Although we are just beginning to analyze the data, a few interesting facts have already emerged.
First and foremost, support for the death penalty around the world is waning, even in those nations that maintain a strong political commitment to state-sponsored executions. In fact, just as we had completed our research for Gabon a few months ago, we received word that the country had abolished the death penalty. There are serious and lively debates about abolition in virtually every retentionist nation. Even in states where abolition is unlikely in the near future, courts and legislators are steadily narrowing the scope of the death penalty’s application. This confirms what other NGOs and the UN Secretary General have previously reported: in all but a tiny handful of nations, support for the death penalty is tepid, at best.
Many nations have adopted unofficial moratoria, periodically commuting death sentences en masse. This is a welcome development, but it sometimes obscures the fact that many of these same nations prosecute indigent individuals under conditions that provide few guarantees of due process. In the vast majority of retentionist states, indigent defendants fail to receive quality legal representation, and many receive no lawyers at all. Lawyers are inexperienced and underfunded. In some countries, it is commonplace for lawyers to meet their clients for the first time on the day of trial. And in too many cases, convictions rest on “confessions” extracted by beatings or torture. There can be no doubt that many hundreds of innocent persons currently languish on death rows around the world in appalling conditions, deprived of any opportunity to meaningfully challenge their convictions and death sentences. We should not turn a blind eye to such injustice simply because a government has refused to carry out executions.
Some of you may wonder why we felt it was necessary to create the database. Although there are many excellent online sources of information relating to death penalty practices around the world – most notably, reports generated by Amnesty International and the database maintained by Hands Off Cain – none of these are devoted to academic and legal analysis of developments in this field. This resource is not intended to supplant those resources, but to supplement them. In the future, we hope to gather sample briefs on issues of international law and make them available to defense counsel seeking to challenge the application of the death penalty. We are keenly aware of the resource constraints facing defense counsel around the world, particularly in the global south, and hope that this website will provide much-needed information regarding legal arguments they can employ in their advocacy.
We hope that this information will inspire and facilitate further research into the application of the death penalty worldwide. We need more country and regional studies regarding the application of the death penalty, particularly in Asia and Sub-Saharan Africa. We need reliable data on the composition of death rows around the world, numbers of individuals sentenced to death, and death row conditions. We also hope that the database will help inform and enlighten the expanding network of individuals, advocates and organizations engaged in the debate over the application of the death penalty worldwide.

Monday, 11 April 2011

Shared Responsibility in International Law

The Research Project on Shared Responsibility in International Law (SHARES)  announces the official launch of the SHARES website: The website includes a detailed description of the SHARES project and its project members. The website also features news, events, publications, blog posts and resources on shared responsibility in international law.
The ambition of the SHARES project is to examine an unexplored and largely unrecognized problem: the allocation of international responsibilities among multiple states and other actors. It seeks to uncover the nature and extent of the problem of sharing responsibility in an increasingly interdependent and heterogeneous international legal order. The project addresses general issues of responsibility in international law, of States as well as other entities, such as international organizations, individuals and other non-State actors, which will impact various fields of law, such as refugee law, environemental law, human rights law or the laws of armed conflict. 
The SHARES project is a research project of the Amsterdam Centre for International Law, led by Professor André Nollkaemper, and funded by the European Research Council.

Sunday, 10 April 2011

Eichmann Trial Began Fifty Years Ago

The trial of Adolf Eichmann began on 11 April 1961. It was an event of great legal importance. The Israeli courts interpreted and applied the provisions of the 1948 Genocide Convention for the first time.
There is a huge secondary literature on the trial, of which Hannah Arendt's Eichmann in Jerusalem is certainly the most famous contribution. A new study of the trial by Deborah Lipstadt, The Eichmann Trial, has just been published, as well as the English translation of a book on the trial that was first published in Dutch in the early 1960s, Criminal Case 40/61, the Trial of Adolf Eichmann by Harry Mulisch. A book published in Germany this week claims Eichmann tried to surrender to German authorities - who knew where he was as early as 1952 - in 1956.
Films of the entire trial are being uploaded onto Youtube by the Yad Vashem Museum. Here is the link to the English language version, some 400 hours of them. For the transcripts, click here. For something more concise, see the film by Eyal Sivan, The Specialist.
The two judgments, of the District Court of Jerusalem and the Supreme Court, are available here.
Thanks to Douwe Sikkema and Joe Powderly.

Wednesday, 6 April 2011

More on Inherent Powers at the International Criminal Court

The issue of ‘inherent powers’ is full of interest and the law on this matter remains unsettled, as a recent decision demonstrates. An item on the point was posted on the blog about a year ago.
In the Lubanga trial at the International Criminal Court there was a dispute about the numbering of defence exhibits. There was a misunderstanding between the Trial Chamber and defence counsel about admission of certain documents. When this became apparent, the defence asked that the documents not be listed in the record.
The substance of the dispute is not as interesting as the bigger legal issues, as described in the majority opinion :
First, whether a Chamber is able to vary its case-management decisions or orders - those that are essentially administrative in nature - and, second, the circumstances when (if at all) a Chamber is entitled to depart from a decision on an issue of substance {viz. as regards the law or the facts of the case).

There is nothing in the Rome Statute or the other applicable legal instruments allowing for reconsideration of a decision once deadlines for filing an appeal have expired. According to the majority, ‘The jurisprudence of the ad hoc tribimals supports the interpretation that in certain circumstances a Chamber is entitled to depart from its decisions on matters of substance as regards the law or the facts of the case.’ The majority adopted a test whereby ‘irregular decisions can be varied if they are manifestly unsound and their consequences are manifestly unsatisfactory’.
Judge Blattmann wrote a separate opinion because he disagreed with the reasoning of the majority. Noting the reliance by the majority on case law of the ad hoc tribunals, he said ‘the transference into the ICC framework of this jurisprudential development which allows for broad judicial law-making powers requires some analysis’ and he said he disagreed with the majority on the matter. He resisted the idea of an ‘inherent discretionary power’ of the judges, although he found that the matter could be resolved in the same way as the majority without resorting to such a power.

Côte d'Ivoire and the International Criminal Court

The Security Council Resolution on Côte d'Ivoire (S/RES/1975) has an interesting reference in the preamble to the International Criminal Court.
Considering that the attacks currently taking place in Côte d’Ivoire against the civilian population could amount to crimes against humanity and that perpetrators of such crimes must be held accountable under international law and noting that the International Criminal Court may decide on its jurisdiction over the situation in Côte d’Ivoire on the basis of article 12, paragraph 3 of the Rome Statute...
Years ago, Côte d'Ivoire made a declaration accepting the jurisdiction of the Court in accordance with article 12(3). What I don't understand about the paragraph is the idea that the Court 'may decide on its jurisdiction'. I think it already has jurisdiction, as an automatic result of the declaration.
During the Security Council debate on the Resolution, India said the following:
We want to reiterate that India is not a member of the International Criminal Court (ICC). Of the 192 Members of the United Nations, only 114 are members of the ICC. Five of the 15 members of the Security Council, including three permanent members, are not parties to the Rome Statute. It is also important to note that there are clear legal provisions concerning States parties to the Rome Statute. There are also guidelines
 for States that are not parties to the Rome Statute to accept the exercise of jurisdiction by the ICC. These provisions and guidelines should be followed without exception. It merits underlining that there is no mandate in resolution 1975 (2011) for the Security Council to refer the situation in Côte d’Ivoire to the ICC.
It is a fact that the situation in Côte d'Ivoire has not been referred. A declaration under article 12(3) is not the same thing as a referral. So the jurisdiction of the Court must still be triggered. The Council has not done this. A State party can do it, under article 14 of the Statute. And the Prosecutor can act proprio motu, under article 15, without any referral at all. But it will go faster if a State party refers the situation. It's about time that a State part refers a situation against a State other than itself!
The Resolution has several other interesting features, including a  paragraph on hate propaganda. The references to both the International Criminal Court and the Human Rights Council are very striking. It is as if they have become part of a holistic approach to conflict and human rights violations.

Kenyans Sue UK for Torture Under Colonial Regime

Four Kenyans who participated in the anti-colonial movement during the 1950s are suing the United Kingdom for torture and other abuses while they were detained. The case is based on newly-discovered documents. There is an article on this in yesterday's Guardian.

Tuesday, 5 April 2011

Essays on Drones: Competition at Goettingen Journal

The Goettingen Journal of International Law, a student run journal, is launching a call for papers for this year's essay competition whose title is: ‘Wanted Dead or Alive? The Use of Unmanned Drones in Current Conflicts as a Legal Challenge’. Here is how the title is described:
Since his inauguration, US President Barack Obama has ordered over 120 drone attacks on Pakistani territory. Targeted killings and the use of drones by the US administration raise serious questions of international law. Are the killings covered by the right to self-defense under the UN Charter? Is the lack of a judicial trial justified under human rights law? Are states allowed to concede the right to kill to other states? These are just a few of the numerous questions you can address in your essay. We are looking forward to your ideas!
Essays of 3,000 words are requested, to be sumitted no later than 29 July 2011. The best essay will be published in the Journal.
For more information, click here.

Monday, 4 April 2011

Richard Goldstone did not Retract the Report

It is being widely reported that Richard Goldstone has retracted the allegations in the report of the Commission he chaired into Operation Cast Lead, the Israeli attack on Gaza in December 2008 and January 2009.
I have read Richard Goldstone’s statement in the Washington Post. While the tone is certainly more indulgent towards Israel, I do not see it as a retraction of the primary allegations in the report.
The central element in Judge Goldstone’s statement in the Washington Post last Friday is his conclusion, based upon information he says was not available when the Commission issued its Report, that ‘civilians were not intentionally targeted [by Israel] as a matter of policy’.
The discussion of intentional targeting of civilians was only one component of the Report and, in my view, it was never at the core of the Commission’s conclusions. It is discussed in paragraphs 704-885 of the 1,979 paragraph report. It consists of one heading among thirteen dealing with violations of international law perpetrated by Israel. Israel is now calling upon the Human Rights Council to retract the Report. Even if it were to retract paragraphs 704-885 of the Report, this would change nothing about the fundamental conclusions of the Commission.
In the Report, the Commission examined eleven incidents of alleged intentional targeting of civilians. I have reread the Commission’s Report in light of Judge Goldstone’s statement. I do not believe that the Commission ever alleged that there was an Israeli policy of intentionally targeting civilians. The furthest it goes, I think, is to talk of a ‘low threshold for the use of lethal fire against the civilian population’ (para. 44), which is not the same thing as intentionally targeting civilians. Judge Goldstone could not retract a conclusion that the Commission did not make.
We are talking here of targeting in terms of firing upon civilians in order to kill them. Elsewhere in the Report, the Commission speaks of various other measures that were aimed at civilians, but I do not read Judge Goldstone’s statement last Friday as being a reference to this part of the Report.
There are a couple of ambiguous passages in the Report that might be taken as a charge that Israel intentionally targeted civilians for killing. Thus, at para. 1215, it says that ‘disproportionate destruction and violence against civilians were part of a deliberate policy’. Similarly, at para. 1887, it refers to ‘a deliberate policy of disproportionate force aimed not at the enemy but at the “supporting infrastructure.” In practice, this appears to have meant the civilian population.’
But these statements have to be read in the context of the entire report. It is a condemnation of the attacks upon the civilian infrastructure and the objective of Cast Lead, which was to punish the civilian population. For example, para. 1884: ‘In this respect, the operations were in furtherance of an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support.’ Judge Goldstone did not in any way retract this part of the Report.
At various points, the Report speaks of Israeli policy and its impact upon civilians. Thus, at para.1027, it notes the ‘overall policy of disproportionate destruction of a significant part of Gaza’s infrastructure’. Also, at para. 1891: ‘1891. the destruction of food supply installations, water sanitation systems, concrete factories and residential houses was the result of a deliberate and systematic policy by the Israeli armed forces. It was not carried out because those objects presented a military threat or opportunity, but to make the daily process of living, and dignified living, more difficult for the civilian population.’
None of these conclusions of the Report are at all affected by Judge Goldstone's statement in the Washington Post.
The analysis of the Goldstone Report referred to the so-called ‘Dahiya Doctrine’ that was developed in Lebanon in 2006. It consists of brutal counter-attack that in effect punishes civilians. In this respect, the Report cited Israeli foreign minister Tsipi Livni, at para. 1206, who said: ‘Israel is not a country upon which you fire missiles and it does not respond. It is a country that when you fire on its citizens it responds by going wild – and this is a good thing.’ Also, Deputy chief of staff, Maj. Gen. Dan Harel, who said (para. 1212):
This operation is different from previous ones. We have set a high goal which we are aiming for. We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings. […] We are hitting government buildings, production factories, security wings and more. We are demanding governmental responsibility from Hamas and are not making distinctions between the various wings. After this operation there will not be one Hamas building left standing in Gaza, and we plan to change the rules of the game.
In his statement last Friday, Richard Goldstone also noted the final report of the follow-up commission chaired by Judge McGowan David, which found that Israel had devoted significant resources to investigate allegations of misconduct, whereas Hamas had done nothing. He said he shares the concerns of the McGowan Davis report that few of Israel’s inquiries have been concluded.
Richard Goldstone’s statement is being greeted with glee in Israel and dismay in Palestine. The extent of what he said should not be misunderstood. He did not repudiate the substance of the Report nor did he cast doubt on most of its conclusions, which are very damning.
It has always been my view that the reaction to Cast Lead was distorted by a focus on violations of international humanitarian law. Both Israel and Hamas write their own rules in this respect, and both sides are in the wrong. That obvious fact emerges from the Goldstone Report. But the real issue, and the real reason why there was such outrage about Cast Lead, is that after more than sixty years the Palestinian people are still being denied their right to self-determination. The conflict in Gaza brings with it terrible human suffering but it is a sideshow to the main act. The violations of humanitarian law are unacceptable, but they should not distract  the focus from Palestinian self-determiantion.
My earnest hope is that the current turmoil in the Middle East will be a catalyst. The autocratic regimes in the Arab countries are an anachronistic blot on the world. Their days are clearly numbered. That will leave only one anachronistic blot on the region left to be resolved.

Friday, 1 April 2011

Plagiarism Charges at Rwanda Tribunal

First it was the German minister, then Gadaffi’s son at LSE. Now, it seems, the plagiarism bug has spread to judgment writers at the International Criminal Tribunal for Rwanda.
It appears that in a recent judgment, several paragraphs were lifted from well-known international criminal law textbooks and reproduced without attribution, including a paragraph from my own book on the Genocide Convention. The judges who signed the decision have blamed the legal officer responsible for drafting; in turn, the legal officer has blamed an intern to whom drafting of certain paragraphs was assigned.
The plagiarism was actually detected at the Irish Centre for Human Rights as part of our normal process of verification of student submissions. We systematically run our student essays through the famous Turn-it-in software. One of our LLM students quite innocently cited portions of the judgment in question at length, and the software detected the problem.
Faced with the embarrassing evidence of plagiarism, the judges have issued a revised judgment, which is an unprecedented event, together with a statement of explanation and apology. This is available on the Tribunal's website.
Consideration is being given to charging the intern with contempt of court. Apparently the judges are also examining the possibility of an amendment to the Rules of Procedure and Evidence so as to give them explicit jurisdiction to prosecute the crime of plagiarism. Members of the Security Council have expressed concern that if the Tribunal engages in plagiarism prosecutions, this will only further extend the long-delayed completion of its work.

Georgian Application Against Russia is Dismissed

The International Court of Justice has dismissed, by ten votes to six, the application filed by Georgia against Russia under the International Convention for the Prevention of All Form of Racial Discrimination.
Georgia’s application against Russia related to the conflict in South Ossetia in 2008. As a basis of jurisdiction, Georgia invoked article 22 of the Racial Discrimination Convention, which says:
Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.
The summary of today’s judgment of the Court says:
The Court refers back to its earlier comment that Georgia did not claim to have used, prior to the seisin of the Court, the other mode of dispute resolution contained at Article 22, namely the procedures expressly provided for in CERD. Considering the Court’s conclusion that, under Article 22 of CERD, negotiations and the procedures expressly provided for in CERD constitute preconditions to its jurisdiction, and considering the factual finding that neither of these two modes of dispute settlement was attempted by Georgia, the Court finds that it does not need to examine whether the two preconditions are cumulative or alternative.
The decision and the individual and dissenting opinions do not yet seem to be posted on the Court's website. Presumably they will appear in the hours to come.