Why is the Practice of Amnesty not Condemned by the General Assembly Declaration on the Rule of Law?

-->

At its current session, the United Nations General Assembly held a special session entitled on ‘the Rule of Law at the National and International Levels’. It is the latest in a number of initiatives taken within the United Nations, including a 2004 report by the Secretary-General, a 2011 follow-up report, and a special session of the Security Council held in January 2012.

The General Assembly session concluded with the adoption of the ‘Declaration of the High-level Meeting of the GeneralAssembly on the Rule of Law at the National and International Levels’. It represents an comprehensive statement of the views shared by Member States on this important issues.

The absence of any reference to amnesty is very striking.

In the 2004 report, the Secretary-General called for the rejection of ‘any endorsement of amnesty for genocide, war crimes, or crimes against humanity, including those relating to ethnic, gender and sexually based international crimes’. These views were repeated in his 2011 follow-up report on the subject.

When the Secretary-General spoke to theSecurity Council in January of this year, he called upon it to ‘reject any endorsement of amnesty for genocide, war crimes, crimes against humanity or gross violations of human rights and international humanitarian law’.

Some international courts and tribunals have even gone so far as to suggest that amnesty should not only be discouraged, as a matter of policy, but that it is prohibited as a question of international law. This has always struck me as an overly extreme position, that cannot be defended either by legal reasoning or on policy grounds. I develop the arguments in a chapter of my recent book Unimaginable Atrocities. Moreover, the proposition that customary international law prohibits amnesty seems inconsistent with State practice.

Hence, the interest in the Declaration by the General Assembly precisely because it does not condemn amnesty.

Is this simply an oversight? Did the Secretary-General, who has insisted upon the issue in his earlier reports and representations before the Security Council, simply forget to mention the matter to the General Assembly?

To be sure, there is language in the Declaration that speaks to the issue of impunity. Here are the most relevant paragraphs:

21. We stress the importance of a comprehensive approach to transitional justice incorporating the full range of judicial and non-judicial measures to ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system and restore confidence in the institutions of the State and promote the rule of law. In this respect, we underline that truth-seeking processes, including those that investigate patterns of past violations of international human rights law and international humanitarian law and their causes and consequences, are important tools that can complement judicial processes.

22. We commit to ensuring that impunity is not tolerated for genocide, war crimes and crimes against humanity or for violations of international humanitarian law and gross violations of human rights law, and that such violations are properly investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice, through domestic mechanisms or, where appropriate, regional or international mechanisms, in accordance with international law, and for this purpose we encourage States to strengthen national judicial systems and institutions.

But why is there no outright condemnation of amnesty? My suspicion is that it would be impossible to reach consensus on such an absolute prohibition. The absence of an outright condemnation of amnesty speaks volumes about the status of this question from the standpoint of international law and practice of States. States prefer a more nuanced approach to the issue, leaving the door open for amnesty - even for core international crimes - when this may assist in peacemaking. It is wise that they do so, and dangerous to try to remove it from the toolbox of those who are trying to bring an end to violent conflict.
In the future, when judges are tempted to opine that amnesty is prohibited as a matter of customary law, they might explain why the General Assembly, in what is surely the most authoritative statement of principle by the international community on a range of rule of law issues, neglected to speak directly to this point.

Palestinian Statehood and the International Criminal Court: A Curious Condition from Whitehall

Britain is prepared to join other EU countries in support of Thursday’s vote in the General Assembly to recognize Palestine as a full observer State of the United Nations, but subject to an interesting condition, according to today’s Guardian.

‘Whitehall officials said the Palestinians were now being asked to refrain from applying for membership of the international criminal court or the international court of justice, which could both be used to pursue war crimes charges or other legal claims against Israel’, writes Ian Black, the newspaper’s Middle East editor.

Article 125 of the Rome Statute declares that ‘all States’ may accede to it. Such a formulation is used so as to enable non-member States of the United Nations to join the International Criminal Court. It was adopted at a time when Switzerland was not yet a member of the United Nations.

Recognition of Palestine as a full ‘Observer State’ by the General Assembly would then enable it to accede to the Rome Statute. This would also clarify any doubt about the validity of the declaration formulated by Palestine in January 2009 giving jurisdiction to the Court (but without joining it, something permitted by article 12(3) of the Statute).

What is so intriguing about the British ‘condition’ is the suggestion that membership in the Court might be bargained for recognition. The United Kingdom is a member of the Court, and would be expected to encourage States to join, not discourage them.

Similar thoughts concerning conditions that might be associated with recognition of Palestinian statehood or even a peace agreement between Palestine and Israel were expressed a few weeks ago at the Washington University conference by Ambassador David Scheffer. He suggested that a final peace agreement might include a clause by which the parties agreed not to appeal to the International Criminal Court with respect to past allegations.

Earlier this year, the Prosecutor of the International Criminal Court refused to act upon the January 2009 declaration by Palestine saying that he lacked authority to determine whether Palestine was a State. He said that this was to be decided by the General Assembly or, possibly, by the Assembly of States Parties.

The Prosecutor does not have the power to set the agenda of the Assembly of States Parties. However, one might think that when he or she suggests it might consider an issue that this would at the very least come up for discussion. Professor John Dugard and myself, along with several other academics, wrote to the President of the Assembly of States Parties several weeks ago urging that this question be addressed at the recent Eleventh Session.

It was not. A few days ago, Professor Dugard received a letter from the President of the Assembly of States Parties, explaining that ‘for any items to be included on the agenda of the Assembly they would have to be proposed by a State Party, the Court or by the United Nations’. One can only conclude that the failure of any of these bodies to proceed on the basis of the Prosecutor’s suggestion amounts to rejection.

The Prosecutor was indeed wrong to think this was a matter for the Assembly of States Parties. That no State Party took up the issue confirms this. Whether or not any particular entity is actually a ‘State’ for the purpose of applying article 12(3) of the Statute is a jurisdictional fact to be assessed and debated within the Court, at various stages of the procedure. It may be raised by the Prosecutor, by the judges and even by a defendant. For example, the Holy See is an ‘Observer State’ at the United Nations, but would it not be possible for an accused person to question its status as a State, as Geoffrey Robertson QC did in his recent book the Case Against the Pope?

Be that as it may, even if the vote in the General Assembly is not necessary for the Statute to operate, confirmation that Palestine is indeed a State will dispel any ambiguity and throw the ball back into the Prosecutor’s court. She should then examine the Goldstone report, with its credible and serious allegations of war crimes and crimes against humanity perpetrated in Gaza in early 2009.

Brierly's Law of Nations

From left, Russ Clapham, Andrew, Maya Sikand, Sandy McBride and Ben Emmerson QC.

Thursday I attended the launch of Brierly’s the Law of Nations, a classic of international law written by Prof. Andrew Clapham. The launch was held at Matrix Chambers, of which Andrew is a founding member. Elizabeth Wilmshurst of Chatham House did a wonderful presentation of the book.

Brierly’s law of nations was first issued in 1928, and over the course of the next thirty-five years it was revised five by the author. But since the early 1960s it had lain untouched until Andrew brought his considerable talents to bear on modernizing the text. He told us how he had attempted to learn about the art of revising the work of an early writer by studying the writings of Ian Fleming. Andrew may not have shaken international law with this book, but he has certainly stirred it. It is an immensely accessible volume and the perfect introduction to international law, at a very affordable price in soft cover (although purchase of the hard cover, as a keeper, is strongly recommended).

Judge Sow Interviewed on Taylor Trial

The alternative judge in the trial of Charles Taylor, Malick Sow, has given an extraordinary interview to the magazine New African where he sets out his views about the quality of the evidence, the nature of the deliberations and other aspects of the proceedings. Nothing comparable has ever appeared in the history of international criminal justice.

Further Progress on Death Penalty Shown by Vote in Third Committee of General Assembly

The Third Committee of the United Nations General Assembly yesterday adopted a resolution calling for a moratorium on the death penalty. This is the fourth such resolution since 2007. Each time, the number of States voting in favour of the resolution has increased.
Yesterday, 110 States voted in favour, compared with votes in the Third Committee of 107 in 2010, 105 in 2008 and 99 in 2007. The number of States opposing the resolution yesterday was 39, up one from 2010, but still dramatically down from 48 in 2008 and 52 in 2007. Niger and Tunisia joined the Yes camp yesterday, while Papua New Guinea, Afghanistan and Indonesia abstained. South Sudan, which only joined the United Nations last year, voted Yes.
Here are the full results of the votes in the Third Committee in 2007, 2008, 2010 and 2012.
The next stage in the process is a vote in the plenary General Assembly in December. Based on previous experience, it is to be expected that the number of Yes votes will increase yet again.
This is all further evidence of the global trend towards reduction and abolition of the death penalty.

The ICC at Ten

The Centre for International Law and Justice of the University of Copenhagen hosted a conference this week to mark the tenth anniversary of the International Criminal Court. My lecture is available in podcast together with the full programme of the conference and information about the Centre.
Congratulations to  Professor Jørn Vestergaard and Assistant Professors Iryna Marchuk and Martin Mennecke for organizing such a great conference.
We all went to the Opera here in Copenhagen this evening for a marvellous performance of Madame Butterfly.

Whitney Harris

The late Whitney Harris 

and Judge Hans Peter-Kaul.

Earlier this week, Judge Hans-Peter Kaul of the International Criminal Court delivered a wonderful lecture at a conference held at Washington University commemorating the 100th birthday of Whitney Harris, the Nuremberg Prosecutor who passed away two years ago. Judge Kaul's tribute to Whitney Harris highlighted his great determination to see the creation of the International Criminal Court, and his conviction that the institution should have jurisdiction over the crime of aggression. Judge Kaul also added many personal touches about the friendship he and his wife Elizabeth developed with Whitney and Anna Harris and their family, including their dramatic first meeting at the Rome Conference in 1998.
The St. Louis Conference, organized by Prof. Leila Sadat, brought together a host of interesting speakers who reflected on the development of the International Criminal Court in the course of its first decade.

Palestine and the International Criminal Court

Earlier this year, the Prosecutor of the International Criminal Court declined acting upon the January 2009 declaration by the Palestinian Authority recognizing the jurisdiction of the Court pursuant to article 12(3) of the Rome Statute. The Prosecutor said that the issue of Palestine's status as a State was to be resolved either by the United Nations General Assembly or by the Court's own Assembly of States Parties. The Assembly of States Parties meets in a few days, but consideration of Palestine's status has not been put on the agenda for discussion.
Nevertheless, Palestine is proceeding with a request to the United Nations General Assembly to be given full observer state status. Here is the request. Should Palestine be successful, the concern of the Prosecutor will be adequately addressed. Then, the Prosecutor can either request authorization of the Pre-Trial Chamber to proceed with an investigation, pursuant to article 15 of the Rome Statute, or wait to be requested to proceed by a State Party (article 14) or by the Security Council (article 13b).

Trinidad and Tobago to Ratify Aggression Amendment

Later this morning, Trinidad and Tobago is expected to deposit its ratification of the amendments to the Rome Statute adopted at the Kampala Conference, one of which enables the International Criminal Court to exercise jurisdiction over the crime of aggression. That will bring the total to three. Thirty ratifications are required for the amendment to enter into force.

11/11

Remembrance Day is an occasion to think about the importance of peace. It commemorates the end of the First World War, which lasted four years and resulted in the deaths of an estimated 20 million people. It was followed barely twenty years later by the Second World War, which caused the death of an estimated 65 million people.

These figures are difficult for us to comprehend today. Consider that this means an average of about 23,000 deaths every single day over the ten years of the two conflicts. Also bear in mind that in the first half of the twentieth century the population of the globe was about 30 to 35% of what it is today. In other words, in equivalent 2012 numbers, there were about 70,000 deaths daily.

That is more than double the number reported to have died in the Syrian conflict since February 2011. This is not to suggest that the number of killings in Syria is not appalling, merely to put the overall amount in perspective.

The point – something Stephen Pinker has made so eloquently in his book The Better Angels of Our Nature – is that the world is less violent than in was. The likelihood of dying a violent death continues to decline, even if there are still parts of the world that are very dangerous indeed.

Why is this? International law has made an important contribution. The Charter of the United Nations prohibited resort to force to settle disputes. The judgment of the International Military Tribunal recognized crimes against peace to be an international offence.

Very recently, after some hesitation, the States Parties to the Rome Statute completed the necessary codification of the crime of aggression. When the amendments enter into force in 2017 the International Criminal Court will be able to prosecute the crime of aggression. This is an important process that fits squarely within the progressive law making of the past 65 years aimed at the prohibition of war.

Peace is fundamental to the protection of human rights. Freedom from fear is the fourth of Roosevelt’s famous four freedoms. Unfortunately, the place of the right to peace within human rights law is still contested.

Recently, I was contacted by a former high school friend who is organising a reunion of the class of 1968. He sent me a list of those I was at secondary school with, and I was saddened to see that several of them had passed away. Perhaps ten out of 230. Contrast that with the schools attended by my parents and my grandparents, where an entire generation was decimated by world war.

The photo shows a plaque that was unveiled last week in the Cooper Gallery, in Barnsley, Yorkshire. The building once housed Holgate Grammar School, where my maternal grandfather and his brother went to school. Seventy-five of the boys lost their lives in the First World War, including my great uncle Duncan Fairley, whose name is on the plaque. Duncan was a second lieutenant who was fatally wounded on the morning of 1 July 1916, the opening day of the Battle of the Somme, in northern France. That day, the British army suffered 60,000 casualties, the largest in its history, as waves of young men, my great uncle among them, marched across the muddy fields to be mown down by artillery and machine gun fire. I am grateful to Sally Hayes for the photograph.

Death Penalty Developments

It was tempting to entitle this ‘Los Angeles Votes to Abolish the Death Penalty’. That was indeed what happened in Tuesday’s vote on Proposition 34, a referendum on amendment to the California constitution intended to abolish capital punishment.

The people of Los Angeles voted by 1,191,545 or 54.04% in favour to 1,013,477 (45.96%) against. However, when the votes for the rest of the state were considered, the amendment was rejected, by 47.2% Yes to 52.8% No.

The result, then, was indeed very close, and shows that when the death penalty is put to a popular vote as was the case in California, it cannot be said that Americans massively support the death penalty. I suppose some will say that California is not typical of the United States, and no doubt the support for capital punishment would have been higher if the referendum had been held in Utah or Idaho, just as it would have been lower were it held in Vermont or Massachusetts.

It seems that the message in Tuesday's election is that the population of the United States is changing, and that ethnic minorities, younger people, and women, all of whom tend to be more progressive, are increasingly effective in exercising their democratic rights. That would suggest that if the referendum is repeated in California in five or ten years, the result will improve. It doesn't need to improve much for it to succeed.

Two new publications on capital punishment:

From the European Union, a study by Prof. Roger Hood on enhancing EU action in Asia with respect to capital punishment

From the Office of the High Commissioner for Human Rights, Moving Away from the Death Penalty, which is a report on a panel discussion held in New York earlier this year.

Seventy-five Years Since Adoption of First International Criminal Court Statute

Seventy-five years ago, from 1 to 16 November 1937, the International Conference on the Repression of Terrorism convened in Geneva under the auspices of the League of Nations. It concluded with the adoption of the Convention for the Creation of an International Criminal Court.

The Conference also adopted a Convention for the Prevention and Punishment of Terrorism which criminalized various terrorist offences.

The Convetion was signed on 16 November 1937. It was only open to signature and ratification or accession by States that had already accepted the primary substantive treaty on terrorism. Ten States signed the Convention at the conclusion of the Conference: Belgium, Bulgaria, Spain, France, Greece, the Netherlands, Romania, Czechoslovakia, Turkey and Yugoslavia.

The international criminal court was to be a permanent body but one that would only sit when an offence had been charged. It was to have five regular and five deputy judges, chosen by the Permanent Court of International Justice. Although the Convention was adopted at a League of Nations conference, there was to be no formal connection between the Court and the League.

States Parties would have the option of referring an individual to trial before the international court instead of trying them by courts of their own jurisdiction or extraditing them. An accused could not demand the right to be tried by the international court.

As a comment in the British Yearbook of International Law in 1938 explained: ‘It is possible that in a moment of political embarrassment a government may find it convenient to make use of the court, if and when it is instituted.’

According to the British Yearbook,

The question what law the court is to apply seems to have given rise to considerable discussion; as nothing in the nature of an international criminal law, proper to such a court, is in existence, some municipal system had to be chosen. Ultimately it was decided that as between the municipal systems of the country where the terrorist act was done and the country which committed the accused for trial, "the substantive criminal law to be applied by the court shall be that which is the least severe" (Article 21); the court decides which law answers to that description. As it is possible that the court will not include any judge who is a national of the state whose law is to be applied, the convention provides for the invitation of an assessor "who is an acknowledged authority on such law". The convention does not apparently contemplate the presence of a jury, a jury being regarded, so it seems, as part of the law of procedure in a municipal system, and not (O shades and myths of Runnymede!) of its "substantive law" (loi pénale de fond).

The idea of the court, and of the corresponding anti-terrorist convention had emerged following the assassination in 1934 of King Alexander of Yugoslavia and Louis Barthou, at Marseilles on 9 October 1934 (for a contemporary newsreel, click here). The French government urged the League of Nations to intervene. Its proposal included the idea of establishing an international criminal court.

Only India ratified the Convention. Today, India stands outside the International Criminal Court. It would be useful to remind India of the pioneering role that it once played in this area.