Fairness Conference at Middlesex

Summer School on Children and Human Rights

Chemical Weapons: Is it a Crime?

The conflicting reports about Syria’s alleged use of chemical weapons raises an interesting point about international crimes. It is being widely reported that the use of chemical weapons is a war crime. But is it?

The Rome Statute contains four relevant provisions, in article 8, where a complete and exhaustive list of war crimes is set out:

(xvii) Employing poison or poisoned weapons;

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

These provisions only apply to international armed conflict and are therefore not applicable to the Syrian civil war. And it isn’t really complete or exhaustive. But it is what the Rome Conference could agree upon.

At the Kampala Review Conference, held in June 2010, amendments were adopted extending the same provisions to non-international armed conflict. The amendments have only been ratified by a few States and obviously not by Syria, which is not a State Party to the Rome Statute, nor by some of the States that are accusing Syria of committing war crimes through the use of chemical weapons in a non-international armed conflict. But they also haven’t been ratified by some of the States that are now condemning Syria.

Even assuming that these provisions do apply, in a general sense, to the conflict in Syria, - the consequence of a Security Council resolution, for example - do they prohibit chemical weapons? The issue was certainly debated at the Rome Conference where the relevant paragraphs in article 8 were adopted. In the course of negotiations, only a week before the conclusion of the Conference, the Bureau proposed a text that was the ancestor of article 8 containing six paragraphs dealing with prohibited weapons, not four as in the final version. The two that did not make it to the final draft read as follows:

iv) Bacteriological (biological) agents or toxins for hostile purposes or in armed conflict;

(v) Chemical weapons as defined in and prohibited by the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction;

The penultimate draft that contained reference to bacteriological and chemical weapons also contained a broad prohibition on weapons that cause unnecessary suffering and superfluous harm and that are indiscriminate. Indeed it was broad enough to cover nuclear weapons.

The removal of an explicit reference to bacteriological and chemical weapons coincided with a removal of the broad general provision capable of covering nuclear weapons. This was a compromise designed to appease some non-nuclear states, who felt that excluding nuclear weapons alone smacked of hypocrisy. After all, chemical weapons were the ‘poor man’s’ weapon of mass destruction.

By an exercise of interpretation, it is possible to view chemical weapons as falling under the category of ‘poison or poisoned weapons’ or ‘asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices’. Of course it is also arguable that nuclear weapons are also ‘poison weapons’.

Perhaps the most likely place to find chemical weapons is in the fourth paragraph of the relevant provision in article 8 of the Rome Statute, paragraph xx, with its reference to ‘weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate’. That provision refers to an annex to the Statute. But alas, there is no annex. In preparation for the Review Conference, Belgium initially proposed the adoption of such an annex but there was insufficient interest from other States.

Of course, there should be an annex. And it should contain both chemical and nuclear weapons. That is the only position consistent with the general principle set out in 1869 in the St. Petersburg Declaration. And the vast majority of States Parties to the Rome Statute would have no difficulty with such a prohibition.

The deficient provisions in the Rome Statute on prohibited weapons are best explained by the fact that the most powerful States possess important stockpiles of weapons of mass destruction that are potentially far more harmful to humanity than isolated chemical weapons used on the battlefield. Not only do they merely retain nuclear weapons; these States continue to develop them, in defiance of their obligations under international law and in particular under the Non-Proliferation Treaty. And all the while, they continue to lecture Iran and North Korea and any other rogue upstart.

Also of interest in this discussion is the observation that the two United Nations ad hoc tribunals established to deal with essentially non-international conflicts, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, do not have any jurisdiction over the use of prohibited weapons. Only the Statute of the International Criminal Tribunal for the former Yugoslavia has a text on the subject. Article 3 of its Statute lists as a crime the ‘employment of poisonous weapons or other weapons calculated to cause unnecessary suffering’. It has not been prosecuted, however, nor has the Tribunal ever had to decide whether this war crime, whose text is drawn from rather archaic instruments that only concern international armed conflict, may also apply to non-international armed conflict.

Finally, the Chemical Weapons Convention of 1993 requires a mention. It of course prohibits the use of chemical weapons, but it does not make their use an international crime. It has been widely ratified, but I did not find either Syria or Israel on the list of States Parties.

The point here is not to suggest that Syria’s use of chemical weapons, if that is indeed the case, constitutes innocent or excusable behaviour. If the allegations are true, Syria has perpetrated an appalling atrocity. But the rather facile manner by which political leaders in powerful states that possess and continue to develop nuclear weapons describe the use of chemical weapons as a war crime does indeed smack of hypocrisy. One of the States condemning Syria on the matter of chemical weapons possesses a substantial arsenal of nuclear weapons, some of them aimed at Syria itself.

We should express outrage on the existence of such appalling illegal weapons. But rather than echo the United States, the United Kingdom and Israel, who themselves stockpile horrible weapons of mass destruction, we should insist that they put their money where their mouths are.

Ashgate Research Companion

Leiden University Wins International Criminal Court Moot

A team of Leiden University students has won the International Criminal Court moot, held at the the Court. Leiden's team consisted of: John Doyle, Sophie Beelaerts van Blokland, Uzay Aysev, Alexander Wills, Joe Holt, Daniel Huck and Adrian Plevin. Thirty-seven teams from twenty-seven countries competed in the moot. For the Court's press release and a photo of the team with Judge Howard Morison, who presided over the final, see here.

 

Irish Famine Tribunal

The Irish Famine Tribunal is being held this weekend at Fordham University School of Law, in New York City. It is a bit of a cross between a Russell Tribunal and a student law moot. The Tribunal is considering whether the responsibility of the United Kingdom – acknowledged by Prime Minister Tony Blair in 1997 (‘Those who governed in London at the time failed their people through standing by while a crop failure turned into a massive human tragedy’) – can be examined using modern-day definitions of genocide and crimes against humanity.

From left, Adam Assahli, Elaine Marum, Justice Hardiman, Judge Ingram, myself and Conor Campbell.

The case was presented as a simulated application by Ireland against the United Kingdom before the International Court of Justice. The three-judge panel consisted of Justice Adrian Hardiman of the Supreme Court of Ireland, Judge John G. Ingram of the Kings County Supreme Court in Brooklyn, and myself. Written submissions are to follow and a decision will be issued in the future (don’t worry, we won’t take as long as the International Criminal Tribunal for Rwanda or the Special Court for Sierra Leone).

The issues raised are quite fascinating, and are not without relevance to the attribution of international criminal responsibility in other situations of famine, such as the Ukrainian famine of the 1930s and the massive deaths from disease and starvation under the Khmer Rouge in the 1970s. The discussions also looked at the responsibility of a government to assist its own people when circumstances that are not of its making bring terrible hardship. In 1846, the prevailing Whig policy applied by the United Kingdom Parliament seemed rooted in the view that it was not the government’s responsibility to care for its people, and that if they wanted to survive the crisis they would have to give up their possessions and work for their food. Yesterday’s discussion was reminiscent of some of the Tory drivel we hear today about welfare reform.

Another fascinating issue concerns the application of the international criminal law framework to the 1840s. The United Kingdom government today takes the view that the notion of genocide cannot be applied to events prior to 1948, when the Convention was adopted, but its cynical justification is driven by a fear of angering Turkey were it to label the 1915 attacks on the Armenians with the ‘g-word’. Yet in 1915, when it was at war with Turkey and not concerned about irritating a NATO ally, the United Kingdom condemned ‘these new crimes of Turkey against humanity and civilisation’. If the United Kingdom recognised the concept of crimes against humanity in 1915, why not in 1846?

Even if the crimes themselves can be deemed applicable to events 170 years ago, that still leaves the question of whether the United Kingdom’s neglect of the Irish people during the famine was actually intentional conduct intended to destroy the Irish people, in whole or in part, and therefore genocide according to the modern definition, or whether it constituted a ‘widespread or systematic attack’ on the Irish people, and therefore crimes against humanity. I expect these issues to be addressed in the final judgment.

An interesting discussion of the historiography of the Irish famine was published by Breandán Mac Suibhne last week in the Dublin Review of Books.

Drafting history of the Universal Declaration of Human Rights

My new book on the drafting history of the Universal Declaration of Human Rights will be published officially by Cambridge University Press on Thursday. It actually consists of three books and 3,150 pages, and comes in a box. I hope everyone will buy the books, but they are expensive so I won't begrudge friends for not laying out the dosh, but librarians should certainly be informed about getting them for their collection. Information on the books is available here. It is possible to buy them at a significant discount using the discount code of the recent American Society of International Law conference: ME3ASIL.

Celebrating arrival of the book. Cambridge editorial director Finola O'Sullivan came down to London with an advance copy, where we met at the Parcel Yard to toast the birth of the new baby. From left: Penelope Soteriou, myself, the book, and Finola.

The three volumes contain all of the United Nations documents related to the drafting of the Universal Declaration of Human Rights. It is a project that has been dear to my heart for more than 15 years. In 1998, some students made for me a set of photocopies of the relevant documents, but it was not complete and moreover it was not indexed in any way. And I lost the copies when I moved to Ireland a few years later.
There is also, on the website of the United Nations, a collection of scanned documents related to the drafting of the Declaration. But it too is not really complete, and there is no way of searching the materials by keyword or article.
For the first time, then, the relevant materials are assembled in a comprehensive and systematic way, and they are thoroughly indexed. There are also detailed annotations to assist the reader.
My belief is that this will make the drafting history of the Universal Declaration of Human Rights much more accessible to scholars and researchers. And this may lead to new understandings and insights.
The Universal Declaration of Human Rights is a hugely important document whose significance has often been understated by statements like 'it's not binding'. The Declaration is one of the bases of the Universal Periodic Review undertaken by states at the Human Rights Council. It is also a source of common understandings of human rights that contributes to our appreciation of customary international law and 'fundamental principles of humanity'. These ideas are developed in the lengthy introduction to the three volumes.
Besides the bound volumes, Cambridge will issue this soon in an electronic version.

General Assembly Debate on International Justice

The United Nations General Assembly held a controversial ‘debate’ last week on the subject of international criminal justice and reconciliation. I was invited to participate in one of the expert panels, and a copy of my prepared remarks can be found here. For the General Assembly, check here.

Arriving at United Nations headquarters in New York on Wednesday morning, I was taken by surprise to learn about a storm that had been brewing around this event. When I had been invited to participate several weeks earlier, by the President of the General Assembly, panellists listed for the expert sessions included Kenneth Roth, former head of Human Rights Watch, David Tolbert, former deputy prosecutor of the International Criminal Tribunal for the former Yugoslavia, and Tiina Intelmann, President of the Assembly of States Parties of the International Criminal Court. There was nothing to suggest that eloquent advocates favouring the international criminal justice institutions would not be present.

But by Wednesday morning, Ken, David and Tiina had all withdrawn. I was told that others, like President Meron of the International Criminal Tribunal for the former Yugoslavia, had declined an invitation to participate. Moreover, a European diplomat I met before the meeting started told me that the EU would be boycotting the afternoon session. In its statement during the morning session, the EU cast aspersions on the integrity of the panellists, something that I did not particularly appreciate. I was told that Canada was staying away, but I certainly saw someone take the nameplate for Canada and attend the morning session.

The General Assembly debate was opened on Wednesday morning by Ban Ki Moon. The morning portion of the meeting consisted of statements by members of the General Assembly, with priority given to the two heads of state in attendance: Tomislav Nikolić of Serbia and Nebojša Radmanović of Bosnia and Herzegovina. Predictably, the two presidents were very critical of the International Criminal Tribunal for the former Yugoslavia. There was much talk about bias in the selection of defendants and in the length of sentences that have been imposed, as well as complaints about the recent acquittal of Croatian general Gotovina and Kosovar politician Haradinaj. I don’t think either of them mentioned the more recent acquittal of Serb general Perisic. They were followed by a number of other speakers, some of them very supportive of international criminal justice, like the EU and some of the Latin American and Caribbean states, and others more sceptical, like Namibia and China. I had some satisfaction seeing the nameplate of the ‘State of Palestine’ and listening to the remarks of its delegate.

Rwanda was represented by its minister of justice, Tharcisse Karugarama, who had his own critique of international justice, although his arguments were hardly the same as those of the two Serb presidents. The Rwandan minister claimed that the International Criminal Tribunal for Rwanda had not contributed to reconciliation, although how he could know this is a mystery to me. He seemed to think that there was reconciliation in Rwanda, but that it was due to the gacaca trials. Perhaps. But perhaps both the International Tribunal and the gacaca trials contributed to the process. It is interesting that Minister Karugarama seems to think that there has been a degree of reconciliation, something the Serb presidents denied entirely. But the latter seemed to confuse reconciliation with anger about the Gotovina acquittal.

There was also much discussion of the International Criminal Court. Several delegates singled out problems with the Security Council referrals to the Court, noting that this did not contribute to the independence and impartiality of the institution. Illegal clauses in the resolutions concerning funding of the Court and immunity for certain categories of individual were mentioned specifically.

When the time came for my panel, late in the day, I felt compelled to adjust my prepared remarks on reconciliation in order to answer much of the unreasonable and unfair criticism that had been made of international justice. I was left largely alone, because those who were most friendly to international justice, not to mention representatives of the International Criminal Court and the International Tribunals, were absent. The panellists were a mixed bag, and some of them strayed far from the topic at hand. There was some unproductive harping on oldarguments that are no longer of any significance, like the now irrelevant grumble that the Security Council has no authority to create tribunals.

Finally, I didn’t need to change that much of what I had planned to say, because the main point in my prepared remarks was that reconciliation is only one of several objectives of international justice. There is much evidence that the other purposes – principally peace and deterrence – have been achieved. International justice can’t take sole credit for the fact that the former Yugoslavia, Rwanda and Sierra Leone have been at peace for more than a decade. But nor is it reasonable to gainsay the contribution that the institutions have made. As for reconciliation, this is something that takes much longer, probably many decades and generations. It is plainly wrong to dismiss the significance of the international criminal tribunals by claiming that they have failed to achieve reconciliation.

At the close of the day, the President of the General Assembly said there had been unprecedented interest in the debate, and that the session would continue at least into the next day because many delegations had requested the right to speak. I could not stay in New York, but there is a press release on the remainder of the debate. For the press release on Wednesday's meeting, see here.

I’m not a big fan of boycotting debates, especially when they take place in a forum of such importance as the United Nations General Assembly. The expression of views that took place last Wednesday was unprecedented. What did it show, finally?

The voices that might be characterised as truly hostile to international justice were not really very numerous. The criticisms that were made on Wednesday tended to be too harsh and one-sided, and this certainly undermined their credibility. The Serb president, for example, might have acknowledged the acquittal of General Perisic. For that matter, he might have recognised that Serbia as a state has not generally had responsibility attributed to it for the atrocities that took place during the war in Bosnia and Herzegovina. I suppose that had Bosnia and Herzegovina been represented by a Bosniac president instead of a Serb president, we might have heard a different complaint about the Tribunal. As for Rwanda, to the extent it wants to claim that there is indeed a degree of justice and reconciliation, some recognition of the contribution by the Tribunal might be in order.

Criticism is good for the international tribunals and for the International Criminal Court. Many supporters of this movement rarely hear the voices of the sceptics, most of whom come from the global south. The objections need to be taken seriously and they need to be addressed rather than ignored or dismissed.

The President of the General Assembly will be preparing a report on the debate.

Human Rights Summer Schools in Galway

The Irish Centre for Human Rights at the School of Law at the National University of Ireland, Galway is pleased to announce the updated details of their summer school programmes for 2013.

The International Criminal Court summer school 2013

17-21 June 2013, NUI Galway, Ireland

The annual International Criminal Court summer school at the Irish Centre for Human Rights is the premiere summer school specializing on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject and by legal professionals working at the International Criminal Court. The summer school is attended by legal professionals, academics, postgraduate students and NGOs. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Participants are also given the opportunity to network with the speakers throughout the week. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, universal jurisdiction, immunities, and the role of victims.

For more information and to register please visit our website at http://conference.ie/Conferences/index.asp?Conference=199 or email iccsummerschool@gmail.com.

The closing date for applications is 31 May 2013.

Summer School in Cinema, Human Rights and Advocacy

27th June to 6th July 2013, NUI Galway, Ireland

Following the success of the last seven years in Venice and Galway, this is the fourth year that this summer school is hosted in Galway jointly by the Irish Centre for Human Rights and the Huston School of Film & Digital Media, NUIG. Elements of the summer school include information on the fundamentals of human rights, how to raise awareness of human rights on camera, the development of ideas and how these ideas should be pitched. This year’s programme will feature the Human Rights Cinema Event on 5th and 6th July, organized in collaboration with Amnesty International, Ireland and Galway One World Centre, in order to give participants the chance to assist human rights films which forms a basis for critical discussion.

The closing date for applications is 30th April 2013. Limited scholarships available!

 For faculty and speakers, this year's program, and more information please visit www.chra.ie or email to info@chra.ie. All events associated with the summer school could be followed from our Face Book page, http://www.facebook.com/pages/Summer-School-in-Cinema-Human-Rights-and-Advocacy/128962737217375.

Summer School on Human Rights, Migration and Globalization

8 to 12 July 2013, NUI, Galway

The Irish Centre for Human Rights will host its inaugural Summer School on Human Rights, Migration and Globalization from 8 to 12 July 2013. The inaugural year’s subtopic is Defining and Promoting Human Rights of Migrants in an Era of Globalization. The five days of intensive sessions will be led by leading specialists including Professor Francois Crépeau, the UN Special Rapporteur on the Human Rights of Migrants. The Summer School will familiarise participants with the sources of migrants’ rights and the available protection mechanisms. It will also provide participants with an understanding of the major tensions underlying the issue of the protection of migrants’ rights and of how globalization shapes these tensions. The programme will include social activities that will allow participants to network with each other and the panel in a relaxed environment. The Summer School is open to anyone interested in the contemporary challenges of migration and human rights protection. Participants will have an opportunity to propose their research ideas for discussion.

For more information, please visit:  http://www.nuigalway.ie/human_rights

Please address any additional queries to: hrandmigrationsummerschool@gmail.com

The closing date for applications is 31 May 2013.