Britain Favoured Summary Execution of Nazi Leaders over International Trial

Diaries of a wartime British spy, released a few days ago, provide further insight into the origins of the Nuremberg Trial. According to a report in Friday’s Guardian, Guy Liddell was supportive of a plan prepared by the Director of Public Prosecutions, Sir Theobald Mathew, whereby selected Nazis would be ‘bumped off’ rather than put on trial following a report from a commission of inquiry.

On 21 June 1945, Liddell dictated a diary entry to his secretary about a visit to his office by a British War Crimes Executive official, and representatives of MI6 and the Special Operations Executive, looking for evidence to support a war crimes prosecution.

"Personally I think the whole procedure is quite dreadful. The DPP had recommended that a fact-finding committee should come to the conclusion that certain people should be bumped off and that others should receive varying terms of imprisonment, that this should be put to the House of Commons and that the authority should be given to any military body finding these individuals in their area to arrest them and inflict whatever punishment had been decided on. This was a much clearer proposition and would not bring the law into disrepute.

"Winston had put this forward at Yalta but Roosevelt felt that the Americans would want a trial. Joe supported Roosevelt on the perfectly frank grounds that Russians liked public trials for propaganda purposes. It seems to me that we are just being dragged down to the level of the travesties of justice that have been taking place in the USSR for the past 20 yrs."

In July 1946, Liddell flew to Nuremberg with the deputy head of MI5, Oswald Harker, to watch the prosecution of 21 senior Nazis, including Hermann Göring ("considerably reduced in size") and Albert Speer ("probably one of the ablest in the dock").

There, he felt his fear that the tribunals would be little better than show trials had been confirmed. "One cannot escape the feeling that most of the things the 21 are accused of having done over a period of 14 years, the Russians have done over a period of 28 years. This adds considerably to the somewhat phoney atmosphere of the whole proceedings and leads me to the point which in a way worries me most, namely, that the court is one of the victors who have framed their own charter, their own procedure and their own rules of evidence in order to deal with the vanquished."

Liddell did not want the Nazis prosecuted for waging a war of aggression. "One cannot help feeling ... a dangerous precedent is being created," he said.

Liddell’s diary is interesting but the existence of such intentions in the British government is hardly some revelations. The records of the London Conference, edited by Robert Jackson and published by the US Government, and readily available (even on the internet, in pdf version) show a British aide mémoire to the United States on 23 April 1945:

1. H.M.G. assume that it is beyond question that Hitler and a number of arch-criminals associated with him (including Mussolini) must, so far as they fall into Allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war. It would be manifestly impossible to punish war criminals of a lower grade by a capital sentence pronounced by a Military Court unless the ringleaders are dealt with with equal severity. This is really involved in the concluding sentence of the Moscow Declaration on this subject, which reserves for the arch-criminals whose offences have no special localization treatment to be determined in due course by the Allies.

2. 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.

3. The central consideration for deciding this difficult choice must, in H.M.G.'s view, be reached by asking-what is the real charge which Allied people and the world as a whole makes against Hitler. It is the totality of his offences against the international standard which civilised countries try to observe which makes him the scoundrel that he is. If he were to be indicted for these offences in the manner that is necessary for reasons of justice in a criminal court, and if his fate is to be determined on the conclusion reached by the tribunal as to the truth of this bundle of charges and the adequacy of the proof, it seems impossible to conceive that the trial would not be exceedingly long and elaborate. He, of course, must have in such a trial all the rights properly conceded to an accused person. He must be defended, if he wishes, by counsel, and he must call any relevant evidence. According to British ideas, at any rate, his defence could not be forcibly shut down or limited because it involves a great expenditure of time. There is nothing upon which British opinion is more sensitive in the realm of criminal procedure than the suspicion that an accused person - whatever the depths of his crime - has been denied his full defence.

4. There is a further consideration which, in the view of H.M.G. needs to be very carefully weighed. If the method of public trial were adopted, the comment must be expected from the very start to be that the whole thing is a "put-up job" designed by the Allies to justify a punishment they have already resolved on. Hitler and his advisers - if they decide to take part and to challenge what is alleged - may be expected to be very much alive to any opportunity of turning the tables. Public opinion as the trial goes on is likely to weary at the length of the process. It is difficult to think that anybody would in the course of time look on Hitler as an injured man, but it is by no means unlikely that a long trial will result in a change of public feeling as to the justification of trying Hitler at all. Will not some people begin to say "The man should be shot out of hand" ~ And if in the complicated and novel procedure which such a trial is bound to adopt-for Russian, American and British ideas must in some way be amalgamated-the defence secured some unexpected point, is there not a danger of the trial being denounced as a farce ~

5. There is a further point. Reference has been made above to Hitler's conduct leading up to the war as one of the crimes on which the Allies would rely. There should be included in this the unprovoked attacks which, since the original declaration of war, he has made on various countries. These are not war crimes in the ordinary sense, nor is it at all clear that they can properly be described as crimes under international law. These would, however, necessarily have to be part of the charge and if the tribunal had - as presumably they would have - to proceed according to international law, an argument, which might be a formidable argument, would be open to the accused that this part of the indictment should be struck out. It may well be thought by some that these acts ought to be regarded as crimes under international law. Under the procedure suggested this would be a matter for the tribunal, and would at any rate give the accused the opportunity of basing arguments on what has happened in the past and what has been done by various countries in declaring war which resulted in acquiring new territory, which certainly were not regarded at the time as crimes against international law.

6. H.M.G. earnestly hope that their Allies will consider the arguments set out above for they are most anxious that a very early agreement should be reached as to the method of dealing with Hitler and his chief associates, and that the method should be one in which the principal Allies concur. It would in any case be valuable if a document could now be drawn up giving the reasoned basis for the punishment of the men concerned.

Dr Mario Silva

Mario Silva was in Galway yesterday, where he was awarded his PhD. Mario is currently a member of the Task Force for International Cooperation on Holocaust Education, Remembrance and Research. Next year, he will be its Chairman. Here he is with Prof. Ray Murphy, who is currently directing the Irish Centre for Human Rights. Congratulations, Mario. Sorry I couldn't be with you.

Trend to Reduction and Abolition of Death Penalty is Even Apparent in Saudi Arabia

I have just received this report from Mark Warren:

JEDDAH: The Shoura Council has made a major decision toward reducing instances of capital punishment in the Kingdom by stipulating that a death sentence issued on the basis of a judge's discretionary power becomes final only if the verdict is unanimous.

"The ruling of an appeals court on a lower court's decision to kill by execution, stoning, amputation, or qisas (legally entitled retribution for a victim or his relatives) etc... will not be final except after it is endorsed by the Supreme Court. The court's endorsement of the death penalty on taazir (a judge's discretion in situations where no religious punishment is prescribed) should not be made final unless it is by unanimous agreement," the council stipulated while discussing recommendations on criminal regulations made by the Committee for Islamic & Governmental Affairs.

The council voted down the committee's recommendation that the implementation of taazir for death punishment can be implemented even if the decision is made without unanimity.

This is useful evidence that the trend to reduction and abolition of the death penalty manifests itself even in some countries that have the worst records on the subject.

Last week, I attended the Regional Conference on Capital Punishment held in Rabat, Morocco. Participating on the keynote panel, I expressed the view that by presenting the issue in terms of retentionist and abolitionist states there was a danger that we would conceal an important truth, namely that the death penalty is in sharp decline in the relatively small number of states that still employ it.

This week, the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions and the Special Rapporteur on Torture will be presenting their recent reports on capital punishment to the General Assembly. It will be interesting to see the response from some of the States that traditionally try to defend the death penalty on such occasions. Foremost among them are Egypt and Singapore. But political changes in Egypt may influence its tone. And Singapore’s rate of execution has declined dramatically in recent years. Let us see what happens.

Next month, the bi-annual resolution on a moratorium on capital punishment returns to the General Assembly. Two years ago, there were some slight changes in the vote (compared with 2008) that revealed a shift in the Arab world. A perceptive observer might have seen this as a sign of more dramatic developments, but I don’t think anybody did at the time. Yes only a few weeks after the resolution, the Arab Spring began.

The bi-annual resolution on capital punishment provides a way to take the temperature not only with respect to the status of the death penalty in the world but, in a more general sense, on progressive developments in the field of human rights.

Comment on the Victims Decision of Trial Chamber V

Tatiana Batchvarova has submitted this most interesting comment on the recent decision of Trial Chamber V concerning particpation of victims in the proceedings of the International Criminal Court:

The Thin Line between Judicial Creativity and Arbitrariness:

Why does the Recent Jurisprudence of Trial Chamber V of the International Criminal Court set an Alarming Precedent as Regards Victims’ Participation?

In two identical decisions in the Ruto and Sang case and, respectively, the Muthaura and Kenyatta case in the Kenya situation of 3 October 2012 Trial Chamber V of the International Criminal Court makes an attempt to further elucidate article 68(3) of the Rome Statute and to streamline the victims’ participation procedure. Is this attempt successful?

The two decisions have a promising start endorsing the general understanding that while participation of victims in proceedings must be “meaningful” as opposed to “purely symbolic”, victims are not vested with an “unfettered right … to participate”. The subsequent paragraphs of the decisions, however, break the thin line between judicial innovativeness and arbitrariness. Whereas judicial discretion exercised within the letter and the spirit of the legal framework is a welcomed creativity, judicial disregard of the imperatives of law amounts to arbitrariness. The decisions raise both legal and practical concerns.

I. Legal concerns

● Fundamentally wrong interpretation of article 68(3) of the Rome Statute. Putting the cart before the horse

An assessment of the stages of proceedings and the manner of victims’ participation as envisaged by article 68(3) is contingent on the willingness of alleged victims to participate in the proceedings and their admission thereto. Consequently, the discretionary power of the Chamber (article 68(3)) comes into play provided that the eligibility criteria (rule 85 of the Rules of Procedure and Evidence) and the application procedure (rule 89 of the Rules of Procedure and Evidence) have been fulfilled.

Accordingly, only after victim-applicants are admitted as participants in proceedings does article 68(3) give leeway to the Chamber to consider whether the personal interests of victims are affected, the appropriate stages of the proceedings and the manner in which victims’ views and concerns are to be presented. Hence, the decision of the Chamber under article 68(3) does not precede or pre-condition but rather follows the judicial authorization of victims’ admission for participation in accordance with the Rules of Procedure and Evidence.

● Violation of the law under the guise of judicial creativity

The decisions under consideration raise concerns regarding at least two violations of the existing legal framework.

1. Firstly, the invention of an alternative procedure to that set forth in rule 89 not only violates the Rules of Procedure and Evidence but also the Rome Statute. Article 68(3) explicitly refers to the procedure to be followed delineated in the Rules of Procedure and Evidence. Thus, the procedure as provided in the Rules of Procedure and Evidence is in effect imperative and no room is left for an assessment of the appropriateness or the necessity of the procedure to be applied, let alone for an invention of a different scheme.

For the sake of argument, even if the relevant legal framework were not imperative as regards the applicable procedure, the Chamber’s practical considerations for the invention of an alternative procedure are utterly untenable. Neither the large number of victims, nor the security concerns in the present cases represent an unprecedented or unfamiliar scenario in the context of the ICC. On the contrary, the nature and the gravity of the crimes under the ICC’s jurisdiction entail by implication large number of victims, security concerns, atrocities of widespread nature, multiple charges, factual and legal complexity.

2. Secondly, the decisions provide for the admission of victim-participants without judicial determination of the requirements set forth in rule 85.

The admission of participants in proceedings in the absence of determination and authorization by the Chamber in charge of their standing as victims is an unprecedented scenario both in domestic and international criminal proceedings which runs afoul of universal criminal justice precepts.

The lack of individual judicial assessment and authorization further deprives persons who fall within the rule 85 victim definition of formal recognition of their victimhood and, accordingly, of the suffering they have endured.

Finally, vesting a legal representative with an absolute discretion to determine who qualifies as victim in the case, which can neither be challenged nor subjected to judicial review, is unheard of in the realm of criminal justice and violates universal precepts. The Chamber’s approach sets a dangerous precedent which may pave the way for precarious practices heading for the ICC.

II. Practical concerns

Although the alleged purpose of the decisions is to streamline victims’ participation in order to safeguard the interests of victims and to ensure expeditiousness of proceedings, the practical consequences of the Chamber’s findings may have quite the opposite effect.

● Concerns originated by the invention of “categories of victims’ participation”

1. To begin with, the decisions in question establish two “groups of victim-participants” in the absence of clear criteria. If the “wish” of the alleged victims to appear individually and in person before the Court were to serve as a criterion, this approach could entail an alarming scenario whereby all alleged victims or a huge number of them would decide for attendance in person. The result - Chambers could be flooded with victims wishing to appear in person in proceedings. This would compromise the expeditiousness of proceedings and prejudice the fair trial rights of the accused.

Regrettably, the solution of the above scenario suggested by the Chamber, namely through the authorization of a limited number of individuals out of all wishing to appear in person, fails to set any guidelines or criteria which would inform its judicial determination. Hence, concerns arise as to the predictability and possible arbitrariness of the Chamber’s findings in this respect.

2. The “all inclusive” approach under the second “category of victims’ participation” raises equally serious concerns.

In particular, virtually anyone could be afforded victim standing in proceedings. In so far as the decisions leave it with the legal representative to unilaterally determine the victim participants of this group, their number could turn into an avalanche. Furthermore, mindful of the fact that even the suggested registration of such victims is merely an option, not an obligation, practically anyone may partake in proceedings. As a result, scenarios could unfold where under the guise of victimhood entire communities if not even whole populations may potentially participate in proceedings through a legal representative.

Apart from the real danger of blocking the proceedings, the approach advanced by the Chamber promoting an “as inclusive as possible” victims’ participation will certainly have implications on the rights of the accused who would be facing the views and concerns of (an) amorphous group(s) claiming to be victimized by his or her conduct.

3. The two “groups of victim-participants” established by the Chamber are not placed at an equal footing. According to the decisions, in assessing any submissions or requests on behalf of victims under the “second category of participation” the Chamber will be mindful of the lack of judicial assessment of their victim status. In all likelihood, this clarification made by the Chamber could motivate victims to apply for a “direct individual participation” instead, in order to avoid a purely symbolic participation and underestimation of their views and concerns. Consequently, the victims’ participation procedure invented by the Chamber may have an adverse effect on the expeditiousness of the proceedings and on the meaningful participation of victims.

● Problems related to the legal representation scheme

The suggested scheme whereby the legal representative who is best acquainted with the personal interests and the individual circumstances of his or her clients remains in the field instead of being present at trial may likewise inimically impact the meaningful participation of victims and equally the expeditiousness of the proceedings.

Although, according to the decisions, the legal representative is allowed to participate in “critical junctures involving victims’ interests”, such as making opening and closing statements, he or she has to rely mainly on the assessment of the OPCV - present in the courtroom - whether the personal interests of his or her clients are affected by the conduct of the proceedings. This regime is problematic, given that the legal representative who is in direct contact with the victims is best suited with the necessary information enabling him or her to best represent the victims before the Court. Endorsing a reversed approach which mandates the OPCV to do so is entirely unrealistic. The same holds true with respect to the Chamber’s ruling pursuant to which the OPCV will be the one examining evidence by conducting the questioning (if authorized) of witnesses and/or the accused while the legal representative will be the one presenting evidence (if authorized). Such division of tasks is, first, illogical and, secondly, untenable. According to it, the OPCV will observe the presentation of evidence and thereafter will inform the legal representative. The latter, on his or her part, will then seek the views of victims and, subsequently, will request interference on behalf of the victims (via the OPCV) in ongoing or already past proceedings which could cause repetition or suspension of the hearings. Given the direct interaction with the victims, the legal representative would indubitably be best placed to partake in the fact-finding process by examining and presenting evidence alike (subject to the Chamber’s authorization).

Over and above the budgetary implications, the division of tasks between the OPCV and the legal representative introduced by the Chamber could lead to disruption of proceedings, postponements and unwarranted delays. This is by and itself prejudicial to the rights of the accused, the victims and the interests of justice as a whole.

III. To conclude

Judicial innovativeness is commendable unless it goes against the law or instead of resolving, creates practical problems. The arbitrary approach of the Trial Chamber towards victims’ participation erodes the solid premises of the victim-related legal framework laid down by the drafters. Judges should better use their power as provided in article 51 of the Rome Statute to initiate amendments to the Rules of Procedure and Evidence in order to establish, if need be, a more simplified application procedure whereby the expeditiousness of the proceedings as well as the interests of the accused and victims will not be compromised.

Acknowledgment of Atrocities Perpetrated Against Indigenous Peoples in Amazonia

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Colombia's President Juan Manuel Santos has issued an official apology to indigenous communities in the Amazon for deaths and destruction caused by the rubber boom beginning a century ago. From 1912 to 1929 the Peruvian firm Casa Arana, led by rubber baron Julio César Arana with British backing, exploited rubber near La Chorrera in what is now Colombia's Amazonas department. Up to 100,000 people were killed and communities devastated in the operations, with indigenous rainforest dwellers forced into slave labor and slain or displaced if they resisted. The situation was brought to the world's attention following an investigation by Roger Casement, an Irishman, who had previously documented similar atrocities in the Belgian Congo. A few months ago, this blog reported on the wonderful book by Mario Vargas Llosa about Casement’s remarkable life.

In his official statement, President Santos said: ‘Today, in the name of the Colombian State, I ask forgiveness from the communities of the Uitoto, Bora, Okaina, Muinane, Andoque, Nonuya, Miraña, Yukuna and Matapí peoples for your deaths, for your orphans, for your victims’. He said he hoped his statement would 'contribute to healing the wounds that this has left in your lives and in the memory of our nation'.

Why Didn’t the Council of Europe get the Nobel?

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The award of the Nobel Peace Prize to the European Union was an inspired choice. After centuries of civil wars, culminating in the most devastating conflict the world has ever seen, Europe has been largely at peace for nearly seventy years. Many deserve credit for this. Focussing on one of the central institutions of the ‘European project’ is fine. Nevertheless, it risks distorting our understanding of the peaceful Europe that the Nobel award appears intended to underscore.

The European Union began as an organization premised upon economic integration, although the dreams of many of those who were engaged in the process was for full-blown political union. Nevertheless, until the 1990s the focus within the European Union was probably more on a shared interest in material prosperity than any broader vision.

The larger perspective on Europe’s future was more he work of the Council of Europe. Founded in 1949, a year before the European Coal and Steel Community which is the ancestor of the European Union, the Council of Europe’s mission is the construction of a common democratic and legal area throughout the continent, based upon ensuring respect for human rights, democracy and the rule of law.

At the heart of the Council of Europe is the European Convention on Human Rights and its primary implementing organ, the European Court of Human Rights. It has provided the forum for the development of a shared European understanding rooted in respect for human dignity, pluralism and equality.

The Council of Europe has always had a larger catchment than the European Union. Today, it numbers 47 member states, whereas the European Union has only 27 members. A poor country can join the Council of Europe as long as it shares the organizations values. While the European Union, too, imposes political requirements for membership, it has always been and remains a club for wealthier countries.

Today, the Council of Europe and the European Union are joined at the hip. The Nobel committee might well have made a joint award as it has often done in the past. It is a pity that yesterday’s announcement leaves the Council of Europe (and the European Court of Human Rights) in the shade.

Today’s papers point to complaints in Greece, which sees itself victimized by the European Union and especially its common currency. A spokesman for the leftist party Syriza said: ‘In many parts of Europe, but especially in Greece, we are experiencing what really is a war situation on a daily basis…’ He should ask his grandparents to remind him about Greece in the 1940s, when millions died a violent death, before making even implied comparisons with Europe when it was really at war.

Still, the people of Greece would probably have understood better the message that the Nobel committee wished to communicate if the prize had been centred on the Council of Europe rather than the European Union. The story about the permanent peace that emerged in the course of what the late Eric Hobsbawm called the ‘short twentieth century’ has more to do with human rights than it does with the euro.

For several months, I have been meaning to write about Stephen Pinker’s brilliant book The Better Angels of our Nature. This is a good occasion, because Professor Pinker may well have influenced the Nobel committee. His thesis is that the world has become less and less violent. He makes a very compelling case in his erudite analysis of many centuries of human behaviour. One of the chapters is entitled ‘The Long Peace’. He writes:

The international entity with the best track record of implementing world peace is probably not the United Nations, but the European Coal and Steel Community, an Intergovernmental Organization founded in 1950 by France, West Germany, Belgium, the Netherland, and Italy to oversee a common market and regulate the production of the two most strategic commodities. The organization was specifically designed as a mechanism for submerging historic rivalries and ambitions – especially West Germany’s – in a shared commercial enterprise. The Coal and Steel Community set the stage for the European Economic Community, which in turn begot the European Union.

Many historians believe that these organizations helped keep war out of the collective consciousness of Western Europe. By making national borders porous to people, money, goods, and ideas, they weakened the temptation of nations to fall into militant rivalries, just as the existence of the United States weakens any temptation of, say, Minnesota and Wisconsin to fall into a militant rivalry. By throwing nations into a club whose leaders had to socialize and work together, then enforced certain norms of cooperation.

Professor Pinker’s analysis would be even stronger were he to focus more upon the role that shared values, of human rights, democracy and the rule of law, have played in European unification. Historically, that has been more the work of the Council of Europe than of the European Union.

I suppose that it will be the President of the European Council, Herman Van Rompuy, who goes to Oslo to accept the prize in December. But maybe the honour should go to Cyprus, which has the Presidency of the Council of the European Union. It is to be hoped that the acceptance speech will recognize the Council of Europe, the European Court of Human Rights and the European Convention on Human Rights.

When he learned he had won the Nobel Prize for literature, William Butler Yeats famously said: ‘How much?’ It is now about a million dollars. This is unlikely to make a significant impact on the fortunes of the euro. Maybe the European Union could earmark the prize money in a way that would symbolically underscore the importance of human rights and also acknowledge the contribution of the Council of Europe. It should give the money to the International Institute for Human Rights, which is located in Strasbourg just next to the European Court of Human Rights.

The Institute was founded in 1969 by René Cassin with the Nobel prize money he received in 1968, largely in recognition of his work in the drafting of the Universal Declaration of Human Rights. At the time he received the award, Cassin was president of the European Court of Human Rights. The Institute has been plagued with financial problems for many years, and the Nobel prize money would make a difference.

Another Comment on l'affaire Sow

Michael Bohlander was not the only person to have difficulty posting on the blog. Deborah Forbes has written a comment on his post, which was published here a few days ago:

Dear Professor Bohlander,

Like you, I have been unable to post comments on Prof. Bill's blog.  I however wanted to draw your attention to the following:-

1. SCSL Rules required that Judge Sow participates in all deliberations.  If the other three Judges held deliberations without him, that is problematic.  He is a very deligent Judge, the only one who is said not to have missed a single sitting of the case.  If he says there were no deliberations, we have to believe he means what he says, there were no deliberations.  If there were deliberations, then the other three must come out and either prove it or say so.

2. Volume of the Judgment: If you look at the first 750 pages closely, you will notice that it is a cut and paste job from previous judgements.  In case you are not aware, the formating of the original judgement told it all.  You will notice that the judgement was issued, posted on the Court's site, withdrawn from the SCSL site and refiled.

3. If rules are important, then Justice Julia Sebutinde of Uganda was unavailable from the date she took office at the ICJ.  ICJ rules do not allow her to continue sitting at SCSL and neither do UN rules allow her to hold any other judicial office other than the SCSL, except with the permission of the appointing authority.  As far as Judge Sow was concerned, he had become a substantive Judge from the date Sebutinde became unavailable.  He is convinced that it was within his remit to make the statement that he made.  He was technically a substantive Judge with a right to dissent.

Lastly, before you get tough on the Defence and Sow, find out why it was so important that Julia Sebutinde of Uganda remained in Office for the Taylor Judgement at all costs, against all rules and odds. Who is flouting the rules here, Judge Sow or The Court and Sebutinde.

Consider unprecedented 14 rounds of voting for ICJ Justice Sebutinde, she gets the majority in the GA but the SC (read America) says no.........remember wikileaks, Sebutinde and the Americans at war with each other, then suddenly, she bags the ICJ job but she must remain on the Taylor Bench?

Why did we have an alternate Judge at all?  He could have taken over her role on the Taylor .  She missed many Court sessions but Judge Sow did not?

In summary, perversion of justice, Taylor was guilty before his trial began. This is what we human rights activists should abhor, using International systems to endorse political agendas.

Sow did human rights a great favour, the rules we love and respect are destined to fail if we continue this way.

Student Research Conference in London

University of London is hosting a one-day interdisciplinary research conference on 20 November for postgraduate students in human rights. Here are the details: School of Advanced Study, University of London,?Room S261 (Second floor),?Senate House (South Block),?Malet Street,?London WC1E 7HU. There is a very modest registration fee.

Please send abstracts of up to 300-350 words to HRC@sas.ac.uk by 26 October 2012. Presenters will be asked to speak for 15-20 minutes on their research proposal and work to date.

Capital Punishment in Serbia

Here is an interesting new website on capital punishment in Serbia.

More on Judge Sow and the Special Court for Sierra Leone

Prof. Michael Bohlander has been trying to post a comment on the affaire Sow, but without success for what must be technical reasons. He has asked me to put his criticisms on the blog, something I am more than happy to do. I often receive comments that are critical of my own views and, as readers of this blog will know, am always pleased to publish them.
Before we get to Michael's comments, however, I want to point out that I must have been misunderstood.
I am not particularly concerned about whether or not Judge Sow (or his colleagues) behaved properly. The apparent attempt to remove him from office seems a disproportionate response, in any case, although it seems largely theoretical given the fact that the work of the Trial Chamber is finished. Probably it is not a good idea for judges to be left to discipline themselves. I don't think most national judicial systems do this, no doubt for good reason.
It is of course a fact that two judges are enough to convict, although the examples where one of the three judges believes guilt is not proven beyond a reasonable doubt are extremely rare. Perhaps it is not a good idea to allow two out of three judges to convict, at least on issues of fact. If one out of three (or one out of four) professional judges, elected at the highest level, has reasonable doubts about the guilt of an individual, perhaps that should be enough to make a verdict insecure. That is my only concern here.
Here is Michael's comment:

Dear Bill,

Unlike Dr Mezyaev I cannot support your criticisms.  What Judge Sow did was unprofessional and may very well constitute judicial misconduct of a grave nature.  

There are a few points I’d like to make:

Procedure and rule of law:

Procedural rules and their observance are an integral and often neglected part of the concept of the rule of law. A former ICTY judge once likened their relationship to the task of the court as that of the handmaiden, not the mistress.  Such a view can only have come from a common law judge, but I digress. These rules have to do with a core area of the rule of law, namely judicial conduct and ethics, and I thus fail to see how one can view this as secondary.  One should always start by assuming that issues such as the individual judge’s right to state their view and the need for an effective functioning of the administration of justice have been carefully balanced when the rules were made. One cannot just push them aside if in an individual case they lead to a result unpalatable to an observer. 

Judge Sow was a non-activated alternate judge. He was not called to decide upon the case. He did thus not even have the right to declare a dissenting opinion. His views were and are in law irrelevant.

How do we know, as Dr Mezyaev says, that Judge Sow spoke out “against injustice”? Have we seen the evidence in the case ourselves?  Were we present at the deliberations or did we witness their absence? Is it not  close to arrogance to second-guess the majority’s view and label  it with such strong words from the armchair view?

Majority vote in collegiate panels:

The concern of the other ICTY judge you mention who was apparently flabbergasted that his own doubts did not lead the other judges to have the same doubts, is evidence of a fundamental misconception of the workings of collegiate panels. It is a banal fact that the very notion of a majority verdict by necessity implies that the judges may disagree on reasonable doubt. In my own 13 years of judicial experience I encountered such situations from time to time.  Naturally, being outvoted is not a pleasant experience, especially if one feels strongly about a point, but unless your legal system allows you to write a dissent, that must be the end of it.

What Judge Sow actually said was this:

"The only moment where a Judge can express his opinion, is during the deliberations or in the  courtroom, and pursuant to the Rules, where there is no deliberations, the only place left for me in the courtroom. I won't get - - because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I'm afraid the whole system is under grave danger of just losing all credibility, and I'm afraid this whole thing is headed for failure. Thank you for your attention." (public  Annex A to the Defence Motion of 19 July 2012).

 Taken at its highest, this could be interpreted as an accusation of the majority of perverting the course of justice by not deliberating (at all). That apparently is the thrust of the defence motion. 

Use for the defence

Judge Sow’s aperçus from the bench  seem to insinuate that the Trial Chamber did not deliberate on the verdict. Deliberations are secret. Disagreeing judges can write dissents. Judge Sow was not entitled to a dissent because he was not called upon to decide the verdict. So he made his concerns known in the courtroom, albeit rather nebulously. The other communications in the disciplinary proceedings, including the email from Judge Sow responding to the charges, are confidential, apparently.

If he is alleging not just a difference of opinion (in which case he should have remained silent in the first place) but an absence of deliberations and as such a fundamental breach of procedure and possibly a perversion of the course of justice, one wonders why he did not go public with an explicit statement to the press etc. if he took the step of announcing such a thing in open court in such awkward words, with the obvious risk of disciplinary consequences. He might even be justified in doing so under general aspects of the necessity defence, yet that would need a lot more specification of his insinuated allegations.

The defence apparently pins its hopes on those five words “where there is no deliberations”.  Unless Judge Sow supports this  with more specific and testable allegations, it seems a bit difficult to believe that such a voluminous judgment was arrived at without any deliberation.  Judge Sow’s comment may just mean no more than that he felt aggrieved that his views were not shared by the others or possibly given short shrift because he was a non-activated alternate judge.

I am also somewhat bemused by the fact that the defence accepts that the judges are not actually biased, but then proceeds to base its disqualification motion on the “appearance of bias” gound. By their own admission of absence of actual bias they destroy the ground based on mere appearance. Logically, the latter is normally meant to be used if one suspects bias even if one cannot prove it, it is then that an appearance based on a fair-minded informed observer is sufficient. The disqualification procedure is, however, not an end in and of itself: If there is no actual bias, as the defence admits, then such a motion should not be filed; it is frivolous.

Dr Evelyne Schmid

From left, Prof. Chetail, Dr. Schmid, Prof. Clapham and myself.

Evelyne Schmid successfully defended her doctoral thesis, entitled 'Violations of Economic, Social and Cultural Rights in International and Transnational Criminal Law', on Thursday at the Graduate Institute of International and Developments Studies, in Geneva. Dr Schmid is now working as a lecturer at the University of Bangor, in Wales. Her work was supervised by Prof. Andrew Clapham. I was the external examiner and Prof. Vincent Chetail was the internal examiner. Congratualations, Evelyne.

Interesting Decision on Victim Participation at the International Criminal Court

An interesting decision on victim participation has been issued by Trial Chamber V of the International Criminal Court, which is hearing the Muthuara and Kenyatta case in the Situation in Kenya. One of the members of the Trial Chamber, Judge Van den Wyngaert, has already made her views known about witnesses and their participation in public lectures and in an article in the Case Western Journal of International Law.
One of the interesting features of the decision is the adoption of an innovative approach that may not be entirely in line with what is prescribed in the Rules of Procedure and Evidence. There is a discussion of the relationship between the Statute and the subsidiary legal instruments.

European Advocacy Centre to Join Middlesex

Middlesex University is a very dynamic place right now. A few months ago, the new School of Law was created. This week, its new dean, Professor Joshua Castellino, announced that the European Human Rights Advocacy Centre, formerly based at London Metropolitan University, will be moving to the Middlesex School of Law, where it will re-constitute itself as a separate Centre and sit alongside the Social Policy Research Centre.
The five-member Centre, directed by Professor Philip Leach, will pursue its focus on human rights litigation before the European Court of Human Rights. Its most recent work has focused on the human rights violations in Chechnya and elsewhere in the region that can broadly be described as the former Soviet Union, where they work very closely with the well-known Russian NGO Memorial. This is a great addition to Middlesex that should provide our students with an opportunity to gain internships and valuable experience.
Professor Philip Leach is a scholar of international repute with an outstanding research profile, which includes his highly acclaimed Oxford University Press book Taking a Case to the European Court of Human Rights.

Benjamin Ferencz Honoured in Nuremberg

Ben Ferencz in 1948 in the Nuremberg courtroom.

Ben Ferencz, taken yesterday in the Nuremberg courtroom. Behind him is the door through which the Nazi defendants entered.

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On Thursday evening in Nuremberg’s Grand Hotel, Benjamin Ferencz was honoured as the first recipient of the Nuremberg Lecture for Peace and Justice award. The honour was presented in conjunction with a conference organized by the new Nuremberg Peace Through Law Academy which was held in the famous Courtroom 600, where the Nuremberg trials took place.

Ben Ferencz, who is now in his early 90s, is an indefatigable campaigner for international justice, and in particular for its role in preventing aggressive war and promoting peace. He was the prosecutor in the Einsatzgruppen trial held from 1947 to 1948.

Judge Hans-Peter Kaul, left, at Chautauqua in August.

The award was delivered by Judge Hans-Peter Kaul of the International Criminal Court in a wonderful tribute, available here.