Dr. Annabel Egan

From left, Jan Wouters, myself, Annabel and Ray Murphy.

Annabel Egan successfully defended her doctoral thesis yesterday on 'Constructive Engagement and Human Rights: The Case of EU Policy Towards China'. The external examiner was Prof. Jan Wouters, of the Catholic University of Leuven. The internal examiner was Prof. Ray Murphy, who is acting director of the Irish Centre for Human Rights. Congratulations, Annabel.

UN General Assembly Resolution Indicates Further Progress on Capital Punishment

The United Nations General Assembly adopted its fourth resolution calling for a moratorium on the death penalty on 20 December, by a vote of 111 votes in favour, with 41 votes against and 34 abstentions.

The resolution was first presented in 2007, then again in 2008, and subsequently on alternative years. The results show a consistent increase in support for the resolution.

                  2007        2008         2009       2012

In favour          104         106          109        111

Opposed             54          46           41         41

Abstain             29          34           35         34  

We get another picture by looking at this in terms of the percentage of the total number of votes:

                  2007        2008         2009       2012

In favour         55.6        57.0         58.9       59.7

Opposed           28.8        24.7         22.2       22.0

Abstain           15.5        18.3         18.9       18.3  

The ranks of the opponents have dwindled, in five years, from 54 to 41, which is a rate of 2.6 per year.  If the trend continues, they will be at 0 in 15.8 years, just in time for the 2028 resolution.

Attempts to adopt such a resolution in the 1990s, in 1994 and 1994, were unsuccessful. This shows how this debate has progressed over the years.

Death Penalty Moratorium in Thailand

I spent three days this week in Bangkok on a mission organised by the Office of the High Commissioner for Human Rights in order to explore issues of death penalty reform in Thailand and elsewhere in the region. My meetings involved several very senior government officials as well as NGO activists and academics. Before my departure, I delivered a lecture to post-graduate students at Thammasat University. It had been hoped that I would also be able to visit Singapore, but the trip did not take place and instead I had a two-hour skype meeting with several activists in that country who are working on reform of the death penalty.

Basically, the message is one of good news. Until about 2003, Thailand was regularly executing 8 to 10 people a year, with a focus on drug offences. From 2004 until 2009 there were no executions, but that year two convicted drug criminals were put to death. Since then, nothing.

Pol. Col. Dr. Naras Savestanan, who is Director General of the Department of Rights and Liberties Protection of Thailand's Ministry of Justice.

On Tuesday, I met with Wanchai Rujjanawong, who is Director-General of the International Affairs Department of the Office of the Attorney General. He assured me that the last execution in Thailand had taken place. Although he did not expect any legislative reform, he said that by 2019 we would be able to count Thailand as de facto abolitionist under the principle that a state that has not actually conducted an execution for ten years is deemed to have abolished the death penalty in fact.

I asked him if this was in writing anywhere, and he said that it was not. But he said ‘you can quote me’. And that is what I am doing.

Later that day I met the Permanent Secretary of the Ministry of Justice, Dr. Kittipong Kittayarak, as well as the Chair of the National Human Rights Commission and the Director General of the Department of Rights and Liberties Protection of the Ministry of Justice. Nothing they said suggested that Wanchai Rujjanawong had misread the situation.

My conclusion is that Thailand is now in a quite determined and intentional moratorium, although it is not yet prepared to declare so officially. It would be a step forward, I think, if they were prepared to state this and I suppose they will do so when they are ready.

There is a tendency when we talk about the global situation with respect to capital punishment to reduce this to simple numbers and a comparison of ‘abolitionist’ and ‘retentionist’ states. But among the dwindling number of states that still use the death penalty, there is huge variation in conduct. In many countries, the same progressive trend that we see in those states that have formally abolished capital punishment can be discerned.

It seems that the death penalty is disappearing with more of a whimper than with a bang.

With Ngudjolo Acquittal, Prosecutor is now Batting 50/50

In the second prosecution to reach the judgment stage, a three-judge Trial Chamber of the International Criminal Court has just acquitted Mathieu Ngudjolo of war crimes and crimes against humanity.

The judgment is straightforward and entirely accessible to those without legal training: the three judges didn’t believe many of the key witnesses called by the prosecution.

Most experienced lawyers will acknowledge that a unanimous acquittal rooted in the lack of credibility of the prosecution witnesses is relatively impervious to appeal. Although appeals are more or less de rigueur at the international criminal tribunals, the Prosecutor might be wise to decide to devote her precious resources to other pressing priorities rather than try to contest today’s findings by the Trial Chamber. She might decide quickly, and give Ngudjolo enough time to go home for Christmas.

Those who cherish justice should always welcome an acquittal, in the sense that it demonstrates a functional system where the presumption of innocence is applied genuinely. It hardly needs to be said that an acquittal in no way indicates that the crime was not committed, merely that the Prosecutor went after the wrong man.

But as for the health of the institution, there is something troublesome about an Office of the Prosecutor with a batting average at trial of only 50%. To an extent, this might be written off as bad luck, were it not for its other failed efforts. The Ngudjolo case had passed the confirmation hearing stage, which is a preliminary type of hearing designed to eliminate cases where even substantial grounds for a conviction cannot be determined. But the Prosecutor has also stumbled in 4 of the 14 cases to get to the confirmation hearing stage. So the batting average could also be taken as 5 out of 14, which is not impressive, and which fails to take into account the fact that several of the 10 where ‘substantial grounds’ were determined have not yet reached the trial stage.

The Ngudjolo prosecution failed the ‘reasonable doubt’ test, but in a rather dramatic way, with the dismissal of the credibility of the testimony of several key prosecution witnesses rather than, as is the situation in where there is a close call, of a difficulty or ambiguity in the interpretation of testimony where the evidence is otherwise credible. It is the difference between saying ‘It was dark, and we are not convinced that the witness was able to identify clearly the defendant’ and ‘We think the defendant is not believable’. The Prosecutor’s witnesses are in the second category, according to the Trial Chamber.

In the ‘summary’ that was read out in Court today, the president judge, Bruno Cotte, made the point that the judgment means that ‘to declare that an accused is not guilty does not necessarily mean that the Chamber concludes he is innocent’. This seems a bit of a gratuitous statement, especially in light of the fact that its verdict is founded on the lack of credibility of the witnesses.

The judgment rests on an assessment of the facts, and while this is not meant to be a criticism of it at all, there is little of substantial legal interest in the findings of the Trial Chamber. It is more like the verdict of a jury, albeit a reasoned one, than an assessment that rests upon a controversial assessment of legal issues.

Where we get the law is in Judge Van den Wyngaert’s fascinating separate opinion. She uses the occasion to express her views upon the modes of participation in the Rome Statute. Her decision largely endorses the views expressed by Judge Fulford in his separate opinion in the Lubanga case earlier this year. Judge Van den Wyngaert rejects the importation of what is known as the theory of indirect co-perpetration. She insists that the Rome Statute contains a codification of the forms of participation and that it is simply not appropriate to enlarge or modify this as if the text itself did not really exist.

Some observers were perhaps tempted to dismiss Judge Fulford’s separate opinion as a rear-guard attempt of a common-law trained jurist. No longer. With the addition of Judge Van den Wyngaert’s eloquent voice, this becomes a harder contention. She is Belgian, and was trained in a system based upon continental theories of participation. Moreover, she comes with the immense credibility of an academic who has been specialised in international criminal law throughout her long and distinguished career.

Reduction of Death Penalty in China through Judicial Restraint

This past weekend, I was in Beijing participating in the launch seminar of a major project entitled ‘Judicial Restraints on Application of the Death Penalty in China, under the auspices of the College for Criminal law Science of Beijing Normal University. Those in attendance were some of the most senior academics in the country in the field of criminal justice, judges from courts around the country and other professionals from the criminal justice system. I was honoured to be the only non-Chinese participant in the meeting.

Over two days, the conference discussed a range of measures aimed at significantly reducing the use of capital punishment in China. Although the purpose of the project is not to campaign for abolition of the death penalty, many speakers made the point that this is the ultimate objective and that judicial restraint is one means of achieving it.

Speakers canvassed a range of techniques that could be used, including stricter evidentiary rules and a range of procedural measures. There was a recognition that such initiatives need to go on regardless of whether the applicable legislation in China is actually changed.

Speakers also expressed the need to have more precise information about the use of capital punishment. That total number of persons executed remains an official secret. However, after this meeting and many other encounters with experts in the Chinese criminal justice system, I feel confident in making a few very educated guesses. In the past year, China has probably executed about 3,000 people. This represents a decline of more than 50% from the number only five years ago. The vast majority of these executions are for homicide in one form or another, although China also uses the death penalty for a range of non-violent crimes including drug trafficking and corruption.

After more than a decade of participation in various conferences on capital punishment in China, I found this recent meeting to be the most encouraging event of all. Often, the sessions have a confrontational tone to them, with European experts lecturing Chinese colleagues, who inevitably feel defensive. But the recent meeting was an entirely Chinese affair, and I sat there quietly like a fly on the wall. It was a sincere and very productive exchange amongst the most senior Chinese experts in criminal justice about how to make dramatic reductions in the rate of execution.

On more than one occasion, speakers noted that the high rate of execution was an embarrassment to China at the international level. I have never before heard such candid comments. There seems to be a growing recognition in countries like China, where the death penalty is still retained, that the debate about capital punishment is over and that they are on the wrong side of history.

The project is led by the very dynamic dean of the College for Criminal Law Science of Beijing Normal University.

I’ve moved on from Beijing to Bangkok, where I am participating in a series of seminars on capital punishment in Thailand and in the region, including Singapore. A decade ago, Thailand was executing an average of 8 people per year, but since 2004 it has executed only 2 people. Singapore has also dropped dramatically in its use of the death penalty from very high levels more than a decade ago. The obsession in this part of the world is with the use of capital punishment for drug crimes.

Dave Brubeck

John Barrett writes wonderful pieces about Robert Jackson, the prosecutor at Nuremberg, and about the Nuremberg trial more generally. He circulates them by e-mail, and invites readers to share them, and that is what I am doing:

David Warren Brubeck was born in Concord, California, on December 6, 1920.  His father became a California cattle rancher.  His mother was a pianist and music teacher.  Not surprisingly, David’s older brothers and he became horsemen and musicians.  By his late teens, David was playing piano professionally.

After graduating from the College of the Pacific in 1942, Brubeck enlisted in the U.S. Army.  For two years, Private Brubeck played in an Army band in California.  In 1944, he was trained to be a rifleman.  Following D-Day, he was sent to northern France for combat service.

Luck then intervened.  After hearing Brubeck playing piano with a Red Cross traveling show, his commanding officer ordered that he not be sent into combat.  Instead, Brubeck and a few other soldiers, most of them decorated, formed a swing band that was trucked into combat areas to entertain troops.  Called “The Wolf Pack,” it was the first racially-integrated band in the U.S. Army.

After Germany’s surrender in May 1945, Brubeck and his band mates were stationed in Nuremberg as part of the occupation army.  They soon discovered the city’s Opera House and made it their rehearsal space.

On July 1, 1945, The Wolf Pack played in a United Service Organizations (“USO”) show that reopened Nuremberg’s Opera House.   Later that summer and through the fall, Brubeck and his fellow soldier-band mates served, roamed, rehearsed and performed, including in USO shows featuring sixteen members of the Radio City Music Hall Rockettes, in Allied-occupied Germany.

The Wolf Pack members were well aware of the IMT proceedings that began in November 1945 in Nuremberg’s Palace of Justice.  Brubeck did not attend the trial but he interacted with U.S., U.S.S.R., U.K. and French personnel who were parts of it, including at meals in a large mess hall that they shared.

In January 1946, Brubeck returned to the United States and was honorably discharged from the Army.

He then became, well, Dave Brubeck.  He lived a long, productive life of musical genius and international acclaim.  Although his time ended physically on December 5, 2012, Dave Brubeck lives on in his compositions, his recordings and, for those (I’m one) who got to see him play, in very special memories.   (For leading newspaper obituaries, click here and here.)

*          *          *

Across the years after 1945, Dave Brubeck never forgot World War II or Nuremberg.  In winter 2004, for example, he recorded a musical autobiography, the leading songs of his war years.  The album, Private Brubeck Remembers, contains twenty-four piano solos and, in CD editions with a bonus disk, a lengthy interview of Brubeck by Walter Cronkite.  In the interview, they share memories of 1945 Nuremberg, where Cronkite also lived as he reported on the IMT trial for United Press.

Around the time that he recorded Private Brubeck Remembers, Dave Brubeck discussed Nuremberg with a Nuremberg prosecutor.  In a St. Louis, Missouri, restaurant following a performance, Brubeck met and had a conversation with Whitney R. Harris, former U.S. assistant prosecutor before the IMT.  Brubeck and Harris were hosted that night by their mutual friend Georgia Frontiere—she made it a point to connect the men, two giants with Nuremberg in common.

In 2005, the City of Nuremberg, noting Dave Brubeck’s dedication throughout his musical career to toleration, peace and human rights and his personal history in Nuremberg, invited him to participate in the City’s commemoration of the 60^th anniversary of the start of the IMT trial.  Brubeck accepted—he and his band mates added Nuremberg on the front end of a concert tour that also took them to Austria, Switzerland, Spain and Poland.

On November 16, 2005, the Dave Brubeck Quartet played in Nuremberg’s Schauspielhaus (playhouse).  This modern venue is part of the Staatstheater (National Theater).  This complex includes the historic Opera House—for a guide book view, click here.  It is the same Opera House that The Wolf Pack helped to reopen to music, and that Justice Jackson then wisely declined to make a courtroom, in July 1945.

During Brubeck’s November 2005 visit to Nuremberg, the Lord Mayor thanked him “for liberating our City.”  In fact, with his music, he did.  And he liberated so much more.

*          *          *

A few more links—

• For video excerpts from a 2009 Dave Brubeck interview about his World War II service and his time in Nuremberg, click here.  (Hat tip:  Greg Peterson.);
• For Dave Brubeck explaining, in the same interview, what inspired him to compose his signature tune “Take Five,” click here; and
• For a 1966 Dave Brubeck Quartet performance, in Germany, of “Take Five,” click here.

Thanks as always for your interest, and please share this with others.

Sincerely,

John

Professor John Q. Barrett

St. John’s University School of Law

Homepage

Elizabeth S. Lenna Fellow

Robert H. Jackson Center, Inc., Jamestown, NY

Archive of selected Jackson List posts

Administrative details:  I send Jackson List notes, which do not display recipient identities or email addresses, to readers who are interested in Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics.  To read archived copies of some past Jackson List posts, click here.  If you received this note indirectly and wish to join the Jackson List, send a “subscribe” note to barrettj@stjohns.edu.  If you wish to leave the Jackson List, just send an “unsubscribe” note.

Sixty-Four Years Ago

Rohingya Persecution in Burma is Subject of Al Jazeera Documentary

See the Al Jazeera documentary on the ongoing persecution of the Rohingya minority in Burma. The documentary will be broadcast the evening of 10 December, but it should be available on the internet for the next four days. Already, it has been fiercely attacked by the Burmese government.

Here is the announcement from the Al Jazeera website:

Earlier this year a Buddhist woman was raped and murdered in western Myanmar. The authorities charged three Muslim men.

A week later, 10 Muslims were murdered in a revenge attack. What happened next was hidden from the outside world.

Bloodshed pitted Buddhists against minority Rohingya Muslims. Many Rohingya fled their homes, which were burned down in what they said was a deliberate attempt by the predominantly Buddhist government to drive them out of the country.

"They were shooting and we were also fighting. The fields were filled with bodies and soaked with blood," says Mohammed Islam, who fled with his family to Bangladesh.

There are 400,000 Rohingya languishing in Bangladesh. For more than three decades, waves of refugees have fled Myanmar. But the government of Bangladesh considers the Rohingya to be illegal immigrants, as does the government of Myanmar. They have no legal rights and nowhere to go.

This is a story of a people fleeing the land where they were born, of a people deprived of citizenship in their homeland. It is the story of the Rohingya of western Myanmar, whose very existence as a people is denied.

Professor William Schabas, the former president of the International Association of Genocide Scholars, says: "When you see measures preventing births, trying to deny the identity of the people, hoping to see that they really are eventually, that they no longer exist; denying their history, denying the legitimacy of their right to live where they live, these are all warning signs that mean it's not frivolous to envisage the use of the term genocide."

Dancing Around Genocide?

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Kenneth Roth, the director of Human Rights Watch, has been the victim of a very nasty attack by anti-Muslim extremists who charge that he is ‘dancing around genocide’ by refusing to condemn Iran and its president for incitement to genocide. David Feith savages Ken Roth in the Wall Street Journal in an article that speaks of ‘a bitter behind-the-scenes battle [within Human Rights Watch] over Iran's calls to annihilate Israel'.

(David Feith shouldn’t be confused with Douglas Feith, who was the under-secretary of state in the first George W. Bush administration, a sabre-rattler for war with Iran, an as yet unpunished director of the Abu Ghraib torture prison, and a neo-conservative ideologist who thinks ‘terrorists’ aren’t entitled to protection of the Geneva Conventions. David is the son of Douglas.)

Ken Roth is correct, and he is very wisely rejecting such demagogic appeals. Iran and its president have said many outrageous things. With respect to Israel, the common denominator of Ahmedinijad’s comments on the subject, when read in their context and bearing in mind the vagaries of translation, certainly amount to a call for the elimination or destruction of the state of Israel. But this is not at all the same thing as calling for the extermination of the people of Israel, or the Jewish population of Israel. A reasonable reading of Ahmedinijad's statements cannot support such a conclusion.

There is nothing unprecedented about calling for the destruction or elimination of a State. Decades ago, Cold Warriors wanted to destroy the Soviet Union and Yugoslavia (they succeeded). In Ireland, many republicans want to destroy the ‘state’ of Northern Ireland. Presumably advocates of the ‘one state solution’ for the Israel-Palestine conflict are also calling for the annihilation of Israel, in the sense that the result will be a secular state with a potentially Arab majority. These are political views, and whether we disagree with them or not, they have a right to be expressed.

Those who charge Ahmedinijad with inciting genocide, including Feith, generally muddle their claim with provocative references to Iran’s possible nuclear capacity. They equate the alleged efforts of Iran to obtain nuclear weapons with an intent to perpetrate genocide against Jews in Israel.

This is a problematic charge for a couple of reasons. First, were Iran to get nuclear weapons, it would not be the first in the region to do so. It very arguably has a claim to require them for defensive purposes, given that its enemies already have nuclear weapons. Why won't Feith call for nuclear disarmament in the Middle East region as a means to prevent genocide?

Second, it doesn’t require very much intelligence to understand that Iran is unlikely to be able to build a nuclear weapon that can distinguish between Jews and Arabs on the territories of Israel and Palestine. Use of nuclear weapons there would be likely to kill as many Palestinians as it would Jewish Israelis. Does any sane, rational person really think that mass destruction of the inhabitants of Israel and Palestine using an indiscriminate weapon can be Iran’s objective?

The attacks on Ken Roth and Human Rights Watch feed off those who are genuinely concerned about the possibility of genocide taking place somewhere in the world. Iran gets presented as yet another example of a mass atrocity waiting to happen, another Rwanda. That is a huge distortion that is pumped up by right-wing ideologues with an anti-Muslim agenda who think that the two greatest genocidal threats in the world just happen to be Muslim states in the Middle East that don’t happen to like Israel, namely Sudan and Iran. These people don’t get nearly as excited about threats of mass atrocity in places like Burma and Sri Lanka.

Some amateurish international lawyers are also engaged in the anti-Ahmedinijad campaign. They invoke article 3(c) of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide and link it to article 9 of the same treaty in a proposal to bring the case before the International Court of Justice. Politicians have been sucked into endorsing this notion. In the last American election, Mitt Romney wasn’t smart enough to see the flaws in such a position, and lent his voice to the campaign. Kenneth Rudd in Australia did the same thing a few years earlier. Perhaps this got them a few votes (though not enough) which was no doubt the purpose of the preposterous exercise.

Article 3(c) makes punishable ‘direct and public incitement to commit genocide’. It is one of the so-called inchoate acts of genocide, in that it does not require that anyone is actually incited or that genocide itself actually take place for the incitement crime to be perpetrated. The reason for the words ‘direct and public’ is to distinguish this from incitement in general, which would be a form of complicity in genocide if there was evidence that people were actually incited and that they actually carried out genocide.

There have been some convictions for ‘direct and public incitement to commit genocide’ at the International Criminal Tribunal for Rwanda, but they present a confused legal message because there is no doubt that in Rwanda individuals were actually incited and genocide took place. I know of no example anywhere where someone has been charged and convicted of ‘direct and public incitement to commit genocide’ in the absence of evidence that people were incited and that those people carried out genocide.

When they implement the provisions of the Genocide Convention (and the Rome Statute, which is to the same effect), most states indicate an understanding that ‘direct and public incitement’ is not a crime on nearly the same level or of the same gravity as genocide itself. For example, in the United States, the so-called Proxmire Act provides a fine of $500,000 and a maximum sentence of five years for the crime of direct and public incitement. And that is assuming it would survive constitutional scrutiny under the First Amendment were a prosecution ever to take place.

It should be pretty obvious that cavalier charges of ‘direct and public incitement to commit genocide’ have the potential to encroach upon freedom of expression. Indeed, isn’t that the real purpose behind the attacks on Ahmedinijad and, for that matter, Ken Roth and Human Rights Watch by Feith and the anti-Muslim chorus?

They want Ahmedinijad to acknowledge Israel as a State, and to back off its alleged efforts to obtain nuclear weapons. Incidentally, just as Ahmedinijad wants to see the end of Israel as a state, they too want to see the destruction and annihilation of the ‘Islamic Republic of Iran’. And they also want to muzzle Ken Roth and Human Rights Watch because of the courageous positions they have taken on human rights violations perpetrated by Israel and its armed forces against the people of Palestine.

Dr. Noémie Turgis

Noémie Turgis successfully completed her doctoral defence at the Université de Paris I (Panthéon Sorbonne) on 6 December. The thesis was entitled Transitional Justice and International Law, and the jury gave it the highest accolade possible: mention très honorable avec félicitations du jury, and recommendations for publication and for a prize.
From left: Prof. Vincent Chetail (Institut des Hautes Études Internationales et du Développement), myself, Prof. Denis Simon (Paris I), Dr. Turgis, Prof. Xavier Philippe (Paul Cézanne Aix- Marseille III) and Prof. Jean-Marc Sorel, who was the supervisor.Professor Sorel is not wearing his gown, having passed it to Noémie after she had successfully finished the defence.
This is the doctoral defence à la française, which is held publicly and is generally attended by fellow doctoral students, friends and family, as was the case here. The defence takes several hours - in this case, about three - and includes substantial statements or speeches by the members of the jury. Although it is generally a foregone conclusion that the thesis will be accepted, the important issue concerns the conclusion of the jury and the recommendations, which can have a decisive effect on the candidate's career.
Traditionally, when it is all over the candidate hosts the members of the jury and the guests at a reception that involves good food and champagne, a nice tradition that universities in other countries should encourage.

US Senate Rejects Disability Convention

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 There are already 126 States that have ratified the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. This important human rights treaty entered into force in 2008.
This week, the United States Senate rejected a motion to approve ratification of the treaty by a vote of 61 in favour and 38 opposed. Under the United States Constitution, the Senate must authorize ratification of international treaties by a two-thirds vote. This weeks initiative fell short  of the 66 required affirmative votes by 5.
The opposition to the Convention was led, predictably, by right-wing republican senators who are still pandering to the Tea Party types. There are some fine accounts of this in the Washington Post and the New York Times. These writers express far better than I can the outrage that we should all share about the Senate vote.
Erstwhile presidential candidate Rick Santorum mobilized opposition by focussing on the provision in the treaty that recognizes the primacy of the best interests of children when they are concerned. Apparently the Tea Party crowd fear that such a principle will threaten the right of parents to ‘home school’ their children, which is something that seems to be a peculiarly American obsession predicated on the perverse consequences that result when children are educated under the authority of the state.
There is nothing new here. Back in the 1950s, the Republican administration that took office in 1953 proclaimed its indifference to international human rights law. The Senate blocked ratification of the 1948 Genocide Convention. That Convention was not ratified until the late 1980s. Other important human rights treaties remain unratified by the United States, including the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination Against Women and the International Covenant on Economic, Social and Cultural Rights.
Students who have studied human rights law with me will know the importance that I attach to the right to equality and to non-discrimination. It is set out at the beginning of the Universal Declaration of Human Rights, in article 2: ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Disability is not listed as a prohibited ground of discrimination. In my recent research on the drafting history of the Universal Declaration of Human Rights, I did not find any evidence that disability was even considered at the time.
But this is what is so fascinating about the right to equality. Perhaps more than other rights, it evolves and develops as our collective understanding is enriched. Those who drafted article 2 of the Universal Declaration intended this. That is why the words ‘without distinction of any kind, such as…’ appear before the enumeration of prohibited grounds.
The most compelling evidence that disability belongs, by implication, in article 2, and that disability now sits very much at the centre of the right to equality, is found in the Convention and its widespread acceptance. In this respect, the rejection this week by the United States Senate is a bizarre anomaly. Under the circumstances, including clear indications that the majority of Americans support the Convention and its goals, this recent development can hardly threaten the claim that discrimination based upon disability is prohibited by international human rights law and more specifically by article 2 of the Universal Declaration.
The Senate vote this week is grotesquely inconsistent with the view that the United States communicates internationally about the right to equality, both in a symbolic sense – manifested in the election and the re-election of President Obama – and in the positions it takes in bodies like the United Nations. Here is a relevant excerpt from the report submitted by the United States to the United Nations Human Rights Council in 2010 as part of the Universal Periodic Review process:

III.2  Fairness and equality

29.    The United States has always been a multi-racial, multi-ethnic, multi-religious society. Although we have made great strides, work remains to meet our goal of ensuring equality before the law for all.  Thirty years ago, the idea of having an African-American president would not have seemed possible; today it is our reality.  Our Attorney General, the nation’s top law enforcement officer, is also African-American.  Three of the last four Secretaries of State have been women, and two of the last three have been African-American.  We have recently appointed our first Hispanic Supreme Court Justice, as well as several LGBT individuals to senior positions in the Executive Branch.  And while individual stories do not prove the absence of enduring challenges, they demonstrate the presence of possibilities.

30.    In 1947, W.E.B. DuBois testified before the UN General Assembly on the continued pervasive discrimination against African Americans in the United States.  In the ensuing decades the U.S. civil rights movement emerged as a quintessential example of citizens using principles of non-violence, law, protest, and public debate to hold their government accountable and to demand that it deliver on their right to equal and fair treatment.  The movement led to critical new laws prohibiting discrimination and seeking to ensure equal opportunity for all individuals. The progress in the decades since is a source of pride to our government and to our people. Indeed, our nationís struggle to banish the legacy of slavery and our long and continuing journey toward racial equality have become the central and emblematic narrative in our quest for a fair and just society that reflects the equality of all.

31.    The United States aspires to foster a society in which, as Dr. Martin Luther King, Jr. put it, the success of our children is determined by the ‘content of their character’. We are not satisfied with a situation where the unemployment rate for African Americans is 15.8%, for Hispanics 12.4%, and for whites 8.8%, as it was in February 2010.  We are not satisfied that a person with disabilities is only one fourth as likely to be employed as a person without disabilities.  We are not satisfied when fewer than half of African-American and Hispanic families own homes while three quarters of white families do.  We are not satisfied that whites are twice as likely as Native Americans to have a college degree.  The United States continues to address such disparities by working to ensure that equal opportunity is not only guaranteed in law but experienced in fact by all Americans.

32.    In addition to our continuing quest to achieve fairness and equality for racial and ethnic minorities across our society, we wish to call attention to the following groups and issues.

Fairness, equality, and persons with disabilities

33.    United States law and practice provide broad and effective protections against, and remedies for, disability-based discrimination.  The most notable of these is the Americans with Disabilities Act of 1990 (ADA), the first national civil rights legislation in the world to unequivocally prohibit discrimination against persons with disabilities, which was amended in 2008 to ensure broader protections.  The intent of these laws is to prohibit discrimination on the basis of disability and remove barriers to the full and equal inclusion of people with disabilities in U.S. society.  These laws cover areas of life including education, health care, transportation, housing, employment, technology, information and communication, the judicial system, and political participation.  To ensure implementation of these laws, a variety of technical assistance and remedies have been supported with federal funds.  For example, training has been provided to the public and private sectors on implementation of the ADA; parent training information centers empower families to understand and claim their rights; and federally funded centers for independent living support the empowerment of individuals with disabilities to live where and with whom they choose in their communities.  The Department of Justice and other federal departments and agencies have the authority to enforce these laws and, in this regard, receive complaints and utilize mediation and litigation as appropriate.  On July 30, 2009, the United States signed the UN Convention on the Rights of Persons with Disabilities and is pursuing the necessary steps toward ratification, which the Administration strongly supports. Upon the 20th anniversary of the ADA, President Obama further demonstrated the nation’s commitment to continued vigilance and improvement by announcing new regulations that increase accessibility in a variety of contexts and commit the federal government to hiring more persons with disabilities.  Although we recognize that discrimination and access problems persist, which we are actively striving to address, the substantive equality of persons with disabilities in the United States has improved enormously in the past few decades.,.

Fairness and equality in education

47.    The United States is committed to providing equal educational opportunities to all children, regardless of their individual circumstances, race, national origin, ethnicity, gender, or disability…

48.    Additionally, the Departments of Justice and Education enforce numerous laws, including the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Patsy T. Mink Equal Opportunity in Education Act of 1972 (Title IX), and the Rehabilitation Act of 1973, that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age with regard to education.  In this capacity, the Justice Department is a party to more than 200 court cases addressing equal opportunities for students, and is involved in numerous out-of-court investigations, many of which have led to settlement agreements.  The Department of Education investigates and resolves civil rights complaints filed by individuals, resolving 6,150 such complaints in the most recent fiscal year, and initiates compliance reviews where information suggests widespread discrimination.  The  Individuals with Disabilities Education Act (IDEA) requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs...

Senator John Kerry apparently said ‘we’ll be back soon’, with a renewed attempt to obtain the required votes in the Senate. The composition of the Senate will change in January in accordance with November’s rejection of the conservative Republican vision of America. But the fact that 38 Senators could reject such an initiative is yet another scary reminder of the bizarre ideas that seem to prevail among a significant section of the population in the United States and that the rest of the world finds so hard to understand.
Thanks to David Scheffer.
 

Serious Fairness Issues Raised by New Ruling in Katanga Case

In mid-November, delegates to the Assembly of States Parties were told how the Court would conclude its second trial with a judgment before year-end (see the Report on the Activities of the Court, ICC-ASP/11/21, para. 10). This is the case of Katanga and Ngudjolo, dealing with a massacre that took place in the Democratic Republic of the Congo.

But the Assembly had not anticipated a ruling issued on 21 November that severs the case into two, and may have as a consequence the prolongation of the Katanga case by perhaps a year or even more. Judgment in Ngudjolo will be delivered on 18 December.

In a ruling based upon Regulation 55, the Trial Chamber decided to recharacterise the mode of liability upon which Katanga’s trial was based and to proceed on the basis of a different provision of the Rome Statute.

Nothing like this can take place at the ad hoc tribunals, because there is no equivalent to Regulation 55.

Regulation 55
Authority of the Chamber to modify the legal characterisation of
facts 

1. In its decision under article 74, the Chamber may change the legal
characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal
characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular,
ensure that the accused shall:
(a) Have adequate time and facilities for the effective preparation of
his or her defence in accordance with article 67, paragraph 1 (b); and
(b) If necessary, be given the opportunity to examine again, or have
examined again, a previous witness, to call a new witness or to present other
evidence admissible under the Statute in accordance with article 67,
paragraph 1 (e).

Most criminal lawyers in national systems will also be astonished that this can happen (well, perhaps it is possible in places like Iran, or Zimbabwe). The Regulations of the Court are crafted by the judges and then tacitly confirmed by the Assembly of States Parties, which may object if it is not content but which has not done so. Although the conformity of Regulation 55 with the Rome Statute itself has already been confirmed by the very judges who adopted it, it is not the idea of reframing the charges but rather the consistency of its interpretation with fair trial principles that is at the heart of the decision.

Judge Van den Wyngaert issued a very strong dissenting opinion that most persuasively protests the decision of her two colleagues to recast the legal debate because of the unfairness it creates for the defendant. The majority decision and the dissent represent one of the most profound debates about fairness in the Court’s proceedings to have taken place to date.

Reading between the lines, one may see that the majority judges concur that the mode of liability upon which both prosecutor and defendant have based their case, and on which evidence was led, is likely to lead to an acquittal. So they have found another mode of liability that they find more suitable and that will, presumably, result in a conviction. Of course, the parties can insist on making new submissions, and even on calling new evidence.

What is so astonishing about the decision is that it takes place not at the close of the prosecution’s case, or even in the midst of the defendant’s case, but more than a year after the evidentiary phase of the trial was completed and six months after the judges had received the final submissions from the parties.

Critics of the judgment will be tempted to point out that the two majority judges of the Trial Chamber, both of whom have already passed the expiration of their terms of office, have now extended their own employment contracts with the Court and, in the case of one of them, increased the pension entitlement. Two recently elected judges will have to wait still longer before taking office, and will have their own terms of office reduced accordingly.

As Judge Van den Wyngaert notes in her eloquent and compelling dissent, part of the unfairness is due to the fact that the recharacterisation of the liability of Katanga is based in part upon his own testimony. Katanga took the stand in his own defence on the belief that he was to answer upon one form of liability, but now finds himself charged based upon another form of liability that results in part from what he himself said in Court.

If this decision is allowed to stand, it will have a very significant impact upon defence strategies in future trials. Defence counsel will have to advise their clients that should they choose to testify, the evidence they give may be used not only in defence to the charges but also in what amounts to a new trial, on a new charge. For the Prosecutor, cross-examination of a defendant who chooses to testify will have the potential to become a fishing expedition where new charges and forms of liability will be explored. The notion of ‘relevance’ may take on a whole new meaning.

For the two majority judges, who come from a culture of inquisitorial proceedings, the idea of reframing a mode of liability in this way is perhaps not as unusual as it might be for a judge from a background in adversarial proceedings. They are more comfortable with procedure where it is the judge rather than the parties who drives the proceedings. But they may not have taken into account the unfairness that results when there are adversarial proceedings, like those prescribed by the Rome Statute, where the scope of the judicial debate is set at the outset of the trial and where the parties produce evidence pursuant to such an agreed understanding.

Regulation 55 allows the judges to intervene and propose changes to the charges, but this is not really that different from a situation where the prosecutor proposes an amendment to the charges. It is acceptable – within reasonable bounds – while the trial is underway, and especially before the defence has played its hand, but it becomes increasingly intolerable from the standpoint of fairness as the trial advances.

To allow this a year after the trial itself has concluded was surely not adequately contemplated by the judges when the adopted Regulation 55 or by the Assembly of States Parties when it confirmed the Regulations of the Court. Surely many of them believed at the time that this was something that would take place early in the trial, and in a manner fully respectful of the rights of the accused. If the majority of the Trial Chamber thinks this should be possible, it should proceed by proposing an amendment to the Regulations (which obviously could not apply in a pending trial in a manner designed to ensure conviction, as seems to be the case with Katanga) rather than ambush the defendant in this way.

The decision is available in French only at this point, which may explain why it is not getting the attention it deserves. But Judge Van den Wyngaert’s dissenting opinion, which is annexed to the ruling itself, is in English.

Important Anniversaries in Siracusa

Cutting the cake.

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The International Institute of Higher Studies in Criminal Sciences celebrated its 40th anniversary on 1 December. Based in Siracusa, in Sicily, it has played a seminal role in the progressive development of criminal justice generally, but especially in the areas of human rights and international criminal law.

With respect to the International Criminal Court alone, the Institute held 19 international conferences, seminars and government expert meetings as the Rome Statute was being developed. At an early stage, delegates to the Preparatory Committee sessions held by the United Nations discussed what was known as the ‘Siracusa Draft’. During the Rome Conference itself, two of the three chairmen of the Diplomatic Conference were members of the Institute’s Board: Giovanni Conso, president of the Conference, and Cherif Bassiouni, president of the drafting Committee.

Sofia, Antonio and their proud grandfather.

The International Criminal Court is only one of the areas in which the ISISC has made enormous contributions. Since its foundation, the Institute has hosted 513 activities on a huge range of criminal law issues. Every year, it holds an intensive course for Young Penalists. Many who are now judges of international and national tribunals, senior officials, and other distinguished professionals are the graduates of the course for Young Penalists.
One cannot speak of the ISISC without also speaking about the individual who has led the Institute since its beginnings, in 1972: Professor M. Cherif Bassiouni. At yesterday’s ceremony, held in the Institute’s glorious new premises in the old Jewish quarter of ancient Siracusa, prominent Italian jurists and international personalities paid homage to Prof. Bassiouni’s immense contribution to international law and justice.

Receiving an original edition of L'Esprit des Lois .

Later in the evening, friends and family gathered at the Villa Politi for a celebration, both of the Institute’s anniversary but also of another important date, Cherif’s 75th birthday. Accompanied on the piano by his six-yearold granddaughter Sofia, we all sang ‘Happy birthday’.

Stephen Rapp, Eduardo Vetere and Giovanni Pasqua, with musicians.

Cherif's colleagues in the Association internationale de droit pénal presented him with a portrait and an original edition of Montesquieu's L'Esprit des lois.

Cherif being serenaded, accompanied by family and friends.