Crimes Against Humanity at the International Law Commission

The United Nations International Law Commission voted today to include an item on crimes against humanity as part of its long-term work programme. This is the latest stage in a project to prepare a Convention on Crimes Against Humanity which has been piloted by Prof. Leila Sadat of Washington University in St. Louis.
The idea of a crimes against humanity treaty has been around for many years. Of course there is the well-known Genocide Convention, which dates to 1948. But there has never been a corresponding instrument for crimes against humanity. Cherif Bassiouni wrote an article proposing this many years ago, a pioneering proposal like so much of what he has done throughout his distinguished career.
Then Prof. Sadat picked up the baton, organising a series of expert meetings that culminated in a detailed proposal published by Cambridge University Press.
The next stage in advancing the agenda has been to get the International Law Commission to take it on board, and that is what happened today. The Commission is subordinate to the General Assembly, so its approval of the initiative is required. Assuming all goes well later this year when the General Assembly meets, the Commission will take up the matter as part of its agenda in early 2014 and appoint a special rapporteur who will be in charge of the matter.
Congratulations to Leila Sadat and her team for their energetic efforts and their persistence.

Three Charters

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My inaugural lecture at Leiden University, The Three Charters: Making International Law in the Post-War Crucible, delivered in January of this year, has now been published: click here.

Complicity Judgment by Supreme Court of Canada

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Last week, one of the world’s most distinguished apex courts, the Supreme Court of Canada, issued a ruling on complicity under international criminal law: Ezokola v. Canada. It is a useful addition to the continuing ferment on the subject, a debate that has mainly taken place at the international criminal tribunals.

This is not a judgment based upon national criminal law nor is it a ruling interpreting the country’s constitution. It is pure international criminal law. The Court is interpreting article 1(F)a of the Convention on the Status of Refugees, the import of which is to exclude from the refugee status determination ‘any person with respect to whom there are serious reasons for considering that:(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes’.

The judges of the Court are right up to date with the latest case law on the subject, and even note ‘[t]o the extent that the ICTY Trial Chamber may be seen to have applied a more exacting standard in Prosecutor v. Jovica Stanišić, IT-03-69-T, Judgment, 30 May 2013 (ICTY, Trial Chamber I), it is not in accordance with prevailing appellate authority’.

Ultimately, however, their concern is with overly broad constructions of the notion of complicity under international criminal law that amount to ‘guilt by association’. To that extent, the judges of the Supreme Court would seem to be on the same wavelength as the majority in the recent Stanišić ruling.

According to the Supreme Court of Canada, complicity under international criminal law requires

a nexus between the individual and the group’s crime or criminal purpose. An individual can be complicit without being present at the crime and without physically contributing to the crime. However, the UNHCR has explained, and other states parties have recognized, that to be excluded from the definition of refugee protection, there must be evidence that the individual knowingly made at least a significant contribution to the group’s crime or criminal purpose.

They added that ‘neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity’.

The Court refers to a statement in the Federal Court of Appeal judgment, that was the subject of the appeal and that it overturned, holding an individual to be complicit ‘by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes’. The Supreme Court said that ‘the Federal Court of Appeal reasons should not be improperly relied on to find complicity even where the individual has committed no guilty act and has no criminal knowledge or intent, beyond a mere awareness that other members of the government have committed illegal acts’.

Refugee lawyers welcome this decision because of their concerns that persons fleeing persecution were being deprived of protection because of extravagant interpretations of international criminal law. There is an interesting tension here, because the judgment will probably not be too popular in some human rights law circles, where it will be seen as contributing to impunity.

The ‘exclusion clause’ in the Refugee Convention can be traced to article 14(2) of the Universal Declaration of Human Rights, where it is stated that the right to seek and enjoy asylum ‘may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations’. The language about international crimes was added by the drafters of the Refugee Convention.
A small footnote to the discussion. Earlier this week, US General Martin Dempsey, who is chairman of the Joint Chiefs of Staff, issued a statement about the dangers of military intervention in Syria where he said: 'Risks include extremists gaining access to additional capabilities, retaliatory cross-border attacks, and insider attacks or inadvertent association with war crimes due to vetting difficulties.' It is always gratifying to see that military people turn their minds to the possibility of involvement in war crimes.

Thanks to William Hartzog.

Euston Road Cemetery

Driving back to London from Paris today, we stopped in Picardie near Arras at the Euston Road Commonwealth military cemetery. This was the heart of trench warfare during the First World War and there are military cemeteries every one or two kilometres. The Euston Road Cemetery is where my great uncle Duncan Fairley is buried. As his tombstone indicates, he was killed on 1 July 1916, the first day of the first Battle of the Somme, on of history's greatest and most devastating engaements.
Duncan was a lieutenant in the Second Barnsley Pals Regiment of the British army. The British took 60,000 casualties that day, and Duncan was one of them. He was 26 years old and like his father he had been a schoolteacher in Barnsley, the Yorkshire town where he was born and raised.
The Euston Road Cemetery is about a kilometre from Beaumont Hamel, a name well-known in Canada because an entire Newfoundland regiment was wiped out there on 1 July 1916.
The Commonwealth military cemeteries are beautifully maintained, a moving but sombre tribute to the futile deaths of the men who are buried there. On either side of Duncan's tombstone is the grave of an unknown soldier. There is lovely rosebush, and a fragrant plant that attracts a lot of bees, signs of life in this very melancholy place. About 1,000 British soldiers are buried there, most of them from Yorkshire and Lancashire, along with several hundred New Zealanders and a few from Canada, Australia and India. Duncan died only a few kilometres from the cemetery where he is buried.
Approximately 17 million people, 10 million of them combatants, lost their lives in the First World War. That is about 12,000 people every day. We should bear in mind that at the time the population of the world was about 2 million. In today’s terms, this would be the equivalent of about 43,000 deaths every single day. I don’t think there has been anything comparable since 1945.
We may not be able to thank international law for this but we can certainly recognise that it has codified the fact. Aggressive war was not prohibited by international law in 1916, as it has been since the United Nations Charter was adopted in 1945, nor was aggression an international crime, as it has been since Nuremberg.
My great uncle Duncan died because he was a soldier in a war of aggression. A British subject, he was fighting in France to prevent it being invaded by Germany. At the time, nobody spoke about the ‘right to life’, a fundamental human right enshrined in article 3 of the Universal Declaration of Human Rights. But Duncan, as well as his parents – my great-grandparents – and his brothers, one of whom was my grandfather, were victims of a violation of the right to life.
The prohibition of war must be a central theme in the struggle for human rights. This is why it is so important to strengthen recognition of the human right to peace and to entrench the crime of aggression within the Rome Statute of the International Criminal Court.

Dr Christina Szurlej

Christina Szurlej, who was my assistant in the preparation of The Universal Declaration of Human Rights, The Travaux Préparatoires, successfully defended her doctoral thesis today at Middlesex University School of Law. The thesis was on the Universal Periodic Review process of the Human Rights Council. Christina was examined by Prof. Andrew Clapham of the Academy of International Humanitarian Law and Human Rights, in Geneva, and Dr. Nadia Bernaz of Middlesex, with Prof. Anthony Goodman in the chair. Congratulations, Christina.

From left, Dr. Bernaz, Professor Clapham, Christina Szurlej and myself.

Appeals Chamber Reinstates Genocide Charge

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has overturned a ruling by the Trial Chamber that acquitted Radovan Karadzic of genocide with respect to charges relating to the 1992-1995 war. About a year ago, in a decision known as a ‘Rule 98bis ruling’, the Trial Chamber dismissed the genocide charges against Karadzic with the exception of those concerning the Srebrenica massacre. This week, the Appeals Chamber reinstated them.

The ‘Rule 98bis ruling’ is a rather classic procedural step following the close of evidence by the prosecution when the defence argues that even if it produces no evidence in rebuttal the charges cannot stand because the proof is insufficient. In other words, there is ‘no case to answer’. It is rare for someone to be totally acquitted at the 98bis stage and I don’t believe this has ever occurred at the international criminal tribunals. And of course Karadzic only managed to remove one of the genocide charges. The rest of the indictment – genocide in Srebrenica, crimes against humanity and war crimes everywhere else – stands untouched and has never really been in doubt. It seems inconceivable he could be acquitted altogether given that so many of his henchmen have been convicted and are serving their sentences.

Probably this week’s genocide ruling is being heralded in Bosnia as an important development. It shouldn’t be. Essentially, the three judges of the Trial Chamber said in their ‘Rule 98 ruling’ last year that there wasn’t enough evidence for a conviction, even if they had believed everything the prosecution had tendered. Now the judges of the Appeals Chamber, after spending many, many months deliberating on the point, have told them that the evidence ‘taken at its highest’ might sustain a conviction. Of course, that is not taking into account the defence evidence, which is now being presented and that presumably will weaken, not strengthen, the prosecution case.

Is it very likely that after thinking there is no evidence and then being told there is a little bit of evidence they will now conclude that there is enough evidence to convict beyond a reasonable doubt? In the annals of criminal justice, I cannot think there would be many cases where three judges would say, effectively, there is no evidence. Then, after being told by the Appeals Chamber that there is a wee bit of evidence, they change their minds and convict. Anything is possible, of course. But if Bosniaks think that some huge reversal is afoot, I fear they will be woefully disappointed.

No wonder some of the members of the Security Council express frustration at the slow pace of the tribunals as they complete their work. Here we have three judges at the Trial Chamber helpfully clearing the decks by reducing the charges in their Rule 98bis ruling. Then the Appeals Chamber, after consuming considerable judicial energy and resources, replies that actually there may be a bit of evidence that might sustain a conviction. The Appeals Chamber judges may be correct in a technical sense. But isn’t this just a big waste of time, in the end?

The Prosecutor might have made a useful contribution by accepting the Trial Chamber ruling instead of filing an appeal. Perhaps the Prosecutor filed the appeal without enthusiasm and was responding to political pressures. He knows the case law goes against him. Nobody has been convicted at the Tribunal for genocide with the exception of the Srebrenica massacre. His predecessors made many attempts but none of them succeeded. The failure to convict for genocide by the Tribunal – with the exception of Srebrenica, of course - was endorsed by the International Court of Justice in the 2007 judgment in the Bosnia v. Serbia case.

Rwandan Acquitted in Canadian Universal Jurisdiction Trial

Jacques Mungwarere, who has been prosecuted for genocide committed in Rwanda in 1994 before Canadian courts, has been acquitted in a judgment issued by Ontario Superior Court Justice Michel Charbonneau.
Mungwarere was a 22-year-old teacher working in Kibuye prefecture when genocide began in Rwanda. He left the country and obtained refugee status in Canada. At his trial witnesses testified that he had been involved in planning attacks and distributing weapons, and that he had killed a child.  Judge Charbonneau disbelieved most of the witnesses, including Mungwarere himself.
The prosecution may appeal, although the chances of success where the trial judgment is based on an assessment of the credibility of witnesses is unlikely.
Canada has invested considerable time, energy and money in prosecutions on the basis of universal jurisdiction over the past 25 years but with rather meager results. The trial is one further example of the huge difficulty such remote prosecutions involve. Sometimes they may be the only option, but that is not the case with Rwanda, where extradition is a realistic possibility and has, in fact, been conducted recently.
Another Rwandan trial before Canadian courts resulted in a conviction. The case is on appeal.

Louise Arbour Thinks Bashir Prosecution a Mistake

Louise Arbour, former Prosecutor of the International Criminal Tribunal for the former Yugoslavia and United Nations High Commissioner for Human Rights, considers that it was a mistake for the International Criminal Court to charge Sudan’s President, Omar el-Bachir. In an interview with Montreal journalist Yves Boisvert, published in La Presse, shesaid the charge ‘weakened’ the Court. ‘I participated in the Commission of Inquiry (into the Darfur massacres), I appeared before the Security Council so that the case would be referred to the Court; but in hindsight, I realize that it was a very bad idea’, she said.
Referring files of countries that have not joined the Court ‘discredits’ the Court, according to Louise Arbour. Furthermore, the Security Council refers situations but provides ‘no political or operational support’ to arrest the accused.
Noting that soon the tribunals for the former Yugoslavia and Rwanda will conclude their work, ‘comparisons are invited’. Despite criticisms, the two temporary institutions produced very concrete results: more than 200 accused, many judgments, leaders who were charged, and so on… By comparison, according to Louise Arbour, the International Criminal Court has issued one judgment in ten years. The coming years will be critical for the Court, she admits.
Thanks to Nicolaos Strapatsas.

Dignity in Death

A very recent judgment of the European Court of Human Rights finds that there was a violation of the European Convention on Human Rights when the authorities did not return to the family the body of a terrorist who had been killed by security forces. Sabanchiyeva and Others v. Russia concerned the death of one of the insurgents killed in a battle in the Republic of Kabardino-Balkariya in 2005. The government justified its decision not to return the bodies with reference to applicable legislation:

Pursuant to section 14(1) of the Federal Interment and Burial Act (Law no. 8-FZ): “the interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.”
Pursuant to part 3 of Decree no. 164, “On interment of persons whose death was caused by the interception of terrorist acts carried out by them”, approved by the Government of the Russian Federation on 20 March 2003, “the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...”

The terrorists were cremated although the families did not learn this until the proceedings at the European Court of Human Rights.
Recourse to the Constitutional Court of Russia was unsuccessful, although a dissenting judge, A.L. Kononov, wrote:

“... The impugned norms, banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial, are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ...
The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...”

Before the European Court of Human Rights, the applicants noted that although no such practice existed elsewhere in the Council of Europe states, there was something similar in Israel where the practice was condemned by the Israeli High Court of Justice in a 2002 decision. The applicants said that in 2004 the Israeli authorities announced that they were putting an end to the practice of refusing to return the bodies of Palestinians ‘except in exceptional circumstances’. Decisions of other international human rights institutions were also referred to.
The European Court concluded that there was a violation of the right to private and family life, enshrined in article 8 of the Convention. Unfortunately, nothing in the judgment of the Court compares with the eloquence of Judge Kononov in the Russian Constitutional Court.

Dr Yvonne McDermott

Yvonne McDermott successfully defender her doctoral thesis at the National University of Ireland Galway today. The external examiner was Prof. Andrew Ashworth of Oxford University; he is in the centre in the photo, with Yvonne to his right. At the far left of the photo is Dr Noelle Higgins, who was the internal examiner. Prof. Ray Murphy, second from the right, chaired the examination.
Yvonne's thesis is entitled The Right to a Fair Trial in International Criminal Law.
Yvonne is a lecturer at Bangor University School of Law in Wales. Congratulations, Yvonne.