Special Issue of Journal of International Criminal Justice on the Interaction between Refugee/Migration Law and International Criminal/Humanitarian Law

The Journal of International Criminal Justice (JICJ) invites submissions for a Special Issue provisionally titled ‘The Interaction between Refugee/Migration Law and International Criminal/Humanitarian Law'” to be co-edited by Fannie Lafontaine, Associate Professor, Law Faculty, Laval University, Member, Board of Editors, JICJ; Laurel Baig, Appeals Counsel, ICTY, Co-Chair, Editorial Committee, JICJ; and Joseph Rikhof, Part-Time Professor, Law Faculty, University of Ottawa.

The wording of four regional refugee instruments — the 1966 Bangkok Principles on Status and Treatment of Refugees, the 1969 Convention on the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration on Refugees — extends the definition of ‘refugee’ beyond what is contained in the 1951 Refugee Convention, and explicitly invite the consideration of an international humanitarian/criminal law. The reference to armed conflict in the context of subsidiary protection in the European Qualification Directive indicates a similar approach. In a similar vein, the UNHCR has commissioned a number of papers as part of its Legal and Protection Policy Research Series with mandate to include notions of armed conflict, foreign aggression and other terms used in these four regional instruments as well as related concepts such as forced displacement or persecution.

International humanitarian/criminal law has played a major role in the development of the definition of who should be excluded from the protections of the Refugee Convention. Naturally, international criminal law has been influential in determining if a refugee claimant meets the requirements of Article 1F(a), which permits exclusion if the claimant ‘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’. National courts and tribunals have tended to adhere to the parameters of the international crimes mentioned in Article 1F(a), especially regarding crimes against humanity, while also referring to international instruments and jurisprudence to circumscribe the defences of superior orders and duress. Recent domestic jurisprudence, notably at the highest levels in the UK and Canada, has also turned to international sources to determine the legal definition of complicity for exclusionary purposes. Courts have also looked to international humanitarian/criminal law to determine whether a claimant should be excluded pursuant to Article 1F(c) on the basis that he has ‘been guilty of acts contrary to the purposes and principles of the United Nations’. National courts have considered that most such ‘acts’ have been in the nature of human rights violations or terrorist activities. In some jurisdictions, such as the UK and Ireland, however, activities against international peacekeepers acting pursuant to a mandate of the UN Nations Security Council were brought within the parameters of this provision. Furthermore, international humanitarian/criminal law has also proven to be influential in relation to the issue of conscientious objectors.

International criminal law and international refugee law interact in a number of other ways, all of which raise issues related to the possible fragmentation of international law and the need for coherence while taking into account the different purposes of each legal regime: the post exclusion phase and its relationship with extradition and prosecution, including with the obligation aut dedere aut judicare; the consequences on exclusion of an acquittal or of the end of a served sentence following a criminal trial in a domestic or international court; the possible asylum claims of defendants or witnesses in international courts’ host states; and so on.

Some of the key questions to explore in this regard include:

*     is recourse to international humanitarian or criminal law an appropriate approach in defining a refugee or providing subsidiary protection?

*     are all aspects of international criminal and humanitarian law desirable for transposition into refugee law?

*     what are the parameters of exclusion and how far can reliance on international humanitarian or criminal law help or hinder the proper development of the concepts contained in these provisions?

*     could international criminal or humanitarian law provide answers to the dilemma of the inability of states to remove a person because of non-refoulement obligations or human rights concerns?

* are there jurisprudential or policy trends in refugee or migration law which could assist international humanitarian or criminal law?

*     to what extent is it appropriate for international humanitarian/criminal law concerning forcible displacement rely on refugee/migration law?

*     do recent international criminal law decisions raise concerns for refugee agencies working in the field?

The editors welcome submission of abstracts not exceeding 400 Words on any of the themes described above, or related areas of interest, on or before 28 February 2014, by email, at jicj@geneva-academy.ch. The abstract should contain the author’s name, home institution, and the title of the proposed paper.  Please also send a current CV.

13th Ratification of Aggresssion Amendments Due Tomorrow

There are now 12 ratifications of the amendments to the Rome Statute on the crime of aggression: Liechtenstein (8 May 2012), Samoa (25 September 2012), Trinidad and Tobago (13 November 2012), Luxembourg (15 January 2013), Estonia (27 March 2013), Germany (3 June 2013), Botswana (4 June 2013), Cyprus (25 September 2013), Slovenia (25 September 2013), Andorra (26 September 2013), Uruguay (26 September 2013) and Belgium (26 November 2013). Tomorrow, Croatia will deposit its instruments of ratification, making it number 13 in the list of ratifications.

According to the information available, government or parliamentary officials in at least the following States Parties are currently actively working on the ratification of the amendments on the crime of aggression: Argentina, Australia, Austria, Bolivia, Brazil, Burundi, Chile, Costa Rica, Croatia, Czech Republic, Dominican Republic, Ecuador, Finland, Georgia, Greece, Iceland, Italy, Lesotho, Madagascar, Malta, the Netherlands, New Zealand, Panama, Paraguay, Peru, Portugal, Romania, Senegal, Slovakia, Spain and Switzerland.

In Ghana, Guatemala, Ireland, Japan, Latvia, Macedonia (FYROM) and Venezuela, the process is in its early stages.

At the twelfth session of the Assembly of States Parties in The Hague on 20 and 21 November 2013, Czech Republic and Slovakia stated their concrete commitment to ratify the amendments on the crime of aggression. Other States Parties made positive references to the Kampala Amendments on the crime of aggression, including Brazil, Democratic Republic of Congo and Guatemala.

In order to enter into force, the amendments require 30 ratifications. They cannot enter into force prior to 2017. There have been 13 ratifications over the past 17 months. If the pace continues, the thirty ratifications should be obtained well before 2017.

Swiss Genocide Denial Law Violates Freedom of Expression says European Court of Human Rights

The controversial Swiss genocide denial law has been held by the European Court of Human Rights to violate the protection of freedom of expression enshrined in article 10 of the European Convention on Human Rights. The case concerned prosecution by Swiss courts of Doğu Perinçek, a Turkish national who had described the Armenian genocide as an ‘international lie’. Two members of the seven-judge Chamber dissented. The Swiss government can apply for leave for the matter to be reconsidered by the 17-judge Grand Chamber.

The Swiss legislation makes it a criminal offence to violate the human dignity of a person or a group of persons because of their race, ethnic identity or religion by denying, grossly minimising or seeking to justify ‘a genocide or other crimes against humanity’. The Court said that reference to ‘a genocide’ may not be sufficiently precise (para. 71), although it said that under the circumstances of the case this did not raise a problem in terms of the foreseeability of criminal liability.

The European Court referred to the complexity of the legal debates about the definition of genocide. It disagreed with the Swiss Court that there was a ‘general consensus’ on this as far as the Armenian genocide is concerned. (para. 116). It went on to say that ‘il est même douteux qu’il puisse y avoir un « consensus général », en particulier scientifique, sur des événements tels que ceux qui sont en cause ici, étant donné que la recherche historique est par définition controversée et discutable et ne se prête guère à des conclusions définitives ou à des vérités objectives et absolues’ (para. 117).

Note that the decision is as yet only available in French. Google translate provides a pretty good rendition: ‘it is doubtful that there can be a "general consensus", especially scientific, on events such as those at issue here, since historical research is controversial and debatable definition does not lend itself to definitive conclusions or objective truths and absolute’.

The Court also noted that in prosecutions of other ‘deniers’, the debate had focussed on the facts, such as the existence of gas chambers, and not the legal qualification of them.

The Court cites with approval a paragraph in General Comment 34 of the Human Rights Committee that states: ‘Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.’ The footnote to this paragraph refers to the Faurisson v. France decision of the Committee which, as I read it, actually says the opposite. My suspicion is that the Human Rights Committee changed its mind on the point as it was debating General Comment 34.

Šešelj Gets a New Judge and Adds Another Few Years to his Pre-Trial Detention

Last Friday, a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia decided to continue proceedings in the trial of Vojislav Šešelj with a new judge. Here is the decision. Mandiaye Niang of Senegal has been designated to replace Fred Harhoff, who was recently disqualified as a consequence of the indiscrete publication of an apparently confidential letter that he sent to several dozen friends.

But the trial is really over. The closing arguments were heard in March 2012, nearly two years ago. Before Judge Harhoff’s departure, the Trial Chamber had already announced that the judgment in the case would be issued on 30 October. Vojislav Šešelj has been in pre-trial detention for more than a decade. The only precedents that I know of for such lengthy pre-trial detention in any national legal order can be found in countries like Iran and North Korea.

This is not the first time that a substitute judge has taken over in mid-trial. Rule 15bis of the Rules of Procedure and Evidence allows for this. But there has never been such a substitution after the hearings and submissions were closed and when the Trial Chamber had already announced a date of judgment.

Presumably the three judges on the old Trial Chamber had already made up their minds about the outcome of the case. Moreover, it is unthinkable that the two remaining judges might have been inclined to acquit; if so, how could they countenance such a procedure that will delay the verdict by perhaps another two years?

Now, the fiction is that they will start all over again with the new judge. In his separate opinion attached to Friday’s judgment, Judge Niang says he will start to familiarize himself with the transcripts, the video recordings and so on, and that he will take a minimum of six months to do this. He also says that if he is unclear about things, he will ask his colleagues to reopen the hearing, for new argument by the parties and even new testimony.

Then he is to declare whether he thinks it possible, under the circumstances, to proceed further. But there must also be the strong suspicion that if he has made up his mind to review the materials for six months, that he has also decided that the venture is feasible and that he will complete the task.

Then, will the three judges begin a second eighteen-month phase of deliberations? Or will Judge Niang either add his name to the final decision that must already have been in a definitive draft form when Judge Harhoff departed, or in the alternative decide to add a dissent? But that is not the same thing as saying that the judge takes over at the start of the deliberations, as is being contended.

If the Trial Chamber sticks with the implausible claim that it is indeed beginning the deliberations from the start, with the new judge, Šešelj should be looking for a judgment in his case sometime in mid-2016. If they move much faster, it will only strengthen the suggestion that the Substitute Judge was brought in to rubber stamp what the other two judges had decided.

In his separate reasons in last Friday’s decision, Judge Antonetti, who is the presiding judge in the Trial Chamber, says that it should be possible for ‘an international judge’ to become familiar with the material very quickly. (Judge Niang has great international experience, but it does not seem that he has never before been an international judge.) Judge Antonetti noted how Judge Bonomy, in the Milošević trial, was able to take over after the close of the prosecution phase of the trial and review the file in a matter of weeks. I don’t quarrel with the fact that Judge Bonomy was able to master the material quickly. He is a brilliant judge, with much trial experience.

What I cannot understand however is why highly skilled and efficient international judges who seem able to take command of the facts of a case so quickly will nevertheless take so long to issue a judgment. Why are they so fast with one task and so slow with the other?

There has never been an adequate explanation at the ad hoc tribunals (or at the International Criminal Court, for that matter) for the lengthy delays that are required from the time of closing argument to the issuance of judgment. At Nuremberg, the judges issued a very fine judgment in less than two months from the close of the trial itself. It took Judge Cassese and his team about the same amount of time to issue the Tadić Jurisdictional Decision in October 1995. Admittedly that was not a trial decision, but it was a complex matter involving difficult and novel issues of law. In the first trials at the ad hoc tribunals, the judgments were issued months, not years, after the close of arguments by the parties.

If it is possible for a Substitute Judge to enter a case in this manner, joining only for the deliberations, we might ask why we need three judges to preside over the trial at all? Why not simply confer the gathering of evidence and the hearing of oral submissions by the parties to one judge, putting everything on videotape. Then, when it is all finished, bring in a couple of judges at the end to speed read everything and watch the You-Tube proceedings? This would surely be faster and cheaper than what the international courts and tribunals do now. Hopefully, the bean counters in the United Nations Secretariat and the Assembly of States Parties are paying attention.

Dr Olivia Martelly

Olivia Martelly successfully defended her doctoral thesis on 11 December at the Université de Montpellier I. The thesis examined the interaction between international human rights law and international criminal law. The degree was awarded with 'mention honorable et félicitations du jury'. Her research director was Prof. Olivier de Frouville, who is now at Université de Paris II. Olivia is in the centre of the photo surrounded by members of the jury. From left, Prof. Frédéric Sudre, Prof. Laurence Burgorgue-Larsen, myself, Olivia, Prof. de Frouville and Prof. Emmanuel Decaux.  Congratulations, Olivia.

Sixty-five years of the Universal Declaration: Good News!

Sixty-five years ago today, the United Nations General Assembly adopted the Universal Declaration of Human Rights. At the time, Eleanor Roosevelt described it as the Magna Carta of humanity. Its significance as a statement of generally accepted norms has continued to increase over the decades.
Today, the Geneva-based Academy of International Humanitarian Law and Human Rights will issue its ‘War Report’.
According to the announcement, the report finds that ‘at least 37 armed conflicts took place in 24 states and territories in 2012, resulting in the direct loss of at least 95,000 lives and many hundreds of thousands of wounded. A significant proportion of casualties resulted from use of indiscriminate weapons in populated areas, and 2012 also saw the pervasive incidence of rape and other acts of sexual violence.’
These figures are appalling, but let us put them in perspective. The figure of 95,000 over the year equates to about 260 persons every day.
In my recent book, Unimaginable Atrocities, I wrote the following:

Since 1945 the prohibition on the use of force has contributed to the effective prevention of world wars, and made the second half of the twentieth century considerably more peaceful than the first. Admittedly there have been terrible conflicts in the six decades since 1945, but nothing to compare with the two conflagrations that engulfed the planet in the first half of the twentieth century. Cherif Bassiouni has estimated the deaths attributable to armed conflict in the years since 1945 at about 92 million. That means an average of approximately 1.4 million every year or slightly less than 4,000 per day. It is an extraordinary and terrifying figure, a rather cold statistic that conceals within it imponderable personal tragedies at the individual level. But juxtapose the numbers with the Second World War, when somewhere between 62 to 78 million people perished in slightly fewer than six years, with most of the killing concentrated in four years. That’s an average of 10 to 13 million per annum, or between 28,000 and 35,000 every single day. When the two world wars are taken together, the total number of deaths is somewhere between 78 and 94 million, roughly equivalent to the figure for the entire period since 1945. The comparison is even more dramatic when note is taken of the world population in the first half of the twentieth century of around 2 billion, compared with seven million in 2011. In other words, the world is a far, far safer place today than it was before the United Nations was established. The Charter’s prohibition on the use of force without Security Council approval deserves some of the credit for this. It should not be discarded lightly.

The point is not that killing in conflict has become banal or unimportant. But to the extent that humanity, basically since the adoption of the Universal Declaration of Human Rights, has gone from 4,000 killings per day in conflict to 260 killings per day is quite astonishing. One conclusion might be that the estimate upon which the 4,000 per day was based upon is exaggerated. Or that the Geneva Academy has grossly underestimated the situation. But if the Geneva Academy has got it wrong, it should be easy enough to point to examples of large numbers of killings in conflict to disprove its figure. I think the Geneva Academy has got it right.
There is no doubt that there are fewer killings as a result of conflict in recent years than in the previous century, and perhaps ever, in human history. This can be seen by looking at the well-known mass killings in recent decades – 800,000 in Rwanda in the space of three months in 1994, for example, 200,000 in Darfur in 2002 and 2003, or 3,000,000 to 4,000,000 in the Democratic Republic of the Congo over a decade or so from the mid 1990s.
How can we explain this development? Better protection of human rights. More robust mechanisms of monitoring, like the Universal Periodic Review. The International Criminal Court and its deterrent effect. The prohibition of the crime of aggression. United Nations Peacekeeping. The number of 95,000 would surely have been higher if Cameron and Hollande had managed to pursue their plans for military intervention in Syria in August, but international civil society and its memories of the invasion of Iraq in 2003 prevented that.
The sixty-fifth anniversary of the Universal Declaration of Human Rights is no time to be complacent. But it is an occasion to recognise progress. Article 28 of the Universal Declaration states that 'Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized'. This is not the only message in the Declaration about the importance of peace.
The Geneva Academy’s report is, in one sense, a terrible message about human suffering resulting from war. Yet in another it is actually good news, and cause for celebration on 10 December 2013.
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South African Judgment on Universal Jurisdiction, Torture and Zimbabwe

An interesting judgment from the Supreme Court of Appeal of South Africa deals with the exercise of universal jurisdiction and the obligation on prosecutors to investigate crimes committed outside the country. It quashes a decision by the public prosecutor who had refused to initiate an investigation into acts of torture perpetrated in Zimbabwe on the ground that there was no connection with South Africa, such as the presence in South Africa of alleged perpetrators.

Congratulations are in order to Max du Plessis and Gilbert Marcus SC of Doughty Street Chambers, who argued the case the Southern Africa Litigation Centre.

The judgment poses the question as follows:

[5] To those unfamiliar with International Criminal Law, the following instinctive question arises: What business is it of the South African authorities when torture on a widespread scale is alleged to have been committed by Zimbabweans against Zimbabweans in Zimbabwe? It is that question that is at the heart of this appeal. Put simply and hopefully concisely, this appeal concerns the investigative powers and obligations of the NPA and the South African Police Service in relation to alleged crimes against humanity perpetrated by Zimbabweans in Zimbabwe. It involves a consideration of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act). Put jurisprudentially, this appeal concerns the exercise of jurisdiction by a domestic court (and the logically antecedent exercise of investigative powers by the relevant authorities) over allegations of crimes against humanity – in particular, the crime of torture – committed in another country.

The Court concludes:

3.2 It is declared that, on the facts of this case:

3.2.1 the [South African Police Service] are empowered to investigate the alleged offences irrespective of whether or not the alleged perpetrators are present in South Africa;

3.2.2 the [South African Police Service] are required to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 into the alleged offences.

There is an interesting discussion in the judgment about whether presence on the territory is a prerequisite for the exercise of universal jurisdiction. Noting that legislation and practice in various countries is inconsistent, this judgment holds that it is not.

The judgment may well be correct in concluding that presence is not a requirement for the exercise of universal jurisdiction, and to this extent the Court is justified in correcting the misunderstanding of the prosecution service. It is rather thin, however, in explaining how the right to exercise jurisdiction in this way is transformed into an obligation.

If the South African prosecution service have an obligation to investigate torture in Zimbabwe committed by Zimbabweans who have never set foot in South Africa, does it also have an obligation to investigate Sri Lankans, and North Koreans, and, why not, Donald Rumsfeld and Dick Cheney? Where does this obligation stop? It seems absurd to suggest that it is absolute and without limits, providing the alleged crime takes place somewhere on the planet or in that part of the universe over which earthlings exercise sovereignty.

The other question, that did not directly arise in this case so the Court cannot be faulted for failing to speak to it, is how the prosecution service is to establish its priorities if indeed the obligation exists but is subject to some sort of reasonable limitation. Would the South African Supreme Court view the matter in the same way if this was a case of torture in North Korea, or Sri Lanka, or Guantanamo? There are obvious reasons to link Zimbabwe and South Africa, including a common border. But if the obligation to exercise universal jurisdiction is subject to limits, it seems that a common border may not be the ideal criterion. Should the requirement be that the crimes take place in the region, on the same continent, in the same hemisphere? This is all very vague and not easily subject to formulation of a legal norm that is both logical and viable.

Ultimately, this is the proverbial problem of selectivity, so familiar at the international criminal tribunals but also a feature of the exercise of universal jurisdiction. Presence on the territory or indeed custody of the accused, as is the case in some national legislation, seems to make sense. Moreover, it is consistent with the adage aut dedere aut judicare (prosecute or extradite), which is premised on the notion that the accused is in some way under the control of the state that seeks to prosecute.

It seems that there is lots of judicial energy for the prosecution of torture, as long as it occurs in places like Zimbabwe and Chad. I’m going to be more impressed when we see some international indictments about the torture perpetrated in Iraq and Guantanamo. Senior US officials at the time were responsible. Maybe the South African Supreme Court could do that case next.

Thanks to Max du Plessis.

René Cassin Thesis Prize

The International Institute for Human Rights, in Strasbourg, has announced the René Cassin Thesis Prize for 2014. Submissions are invited. It is awarded for doctoral theses in human rights, written in English, that were defended in 2013. The deadline for submission is 15 January 2014. Full information is available on the website of the Institute.

UK Marine Sentence to Life Imprisonment for Murdering Taliban Combatant

      A Court Martial in the United Kingdom has sentenced Sergeant Alexander Blackman, a member of the Royal Marines, to life imprisonment for murdering an enemy combatant in Afghanistan. It is said to be the first conviction of a British soldier for such a crime since the Second World War.

      In imposing the sentence, Judge Advocate General Jeff Blackett said Blackman had shown contempt for the Taliban fighter, who had been severely wounded by a helicopter strike. Instead of providing him with medical assistance, he ‘murdered him in cold blood’. The entire episode was filmed by a helmet camera. Before delivering a fatal shot, Blackman said: ‘"Shuffle off this mortal coil, you cunt. It's nothing you wouldn't do to us.’ The unusual language comes from the famous ‘to be or not to be’ speech in Shakespeare’s Hamlet.

      During the proceedings, Blackman was known as ‘Marine A’, a measure that had been taken out of concern that he or his family might be targeted in revenge attacks. An application to maintain the anonymity of the conviction was rejected by a three-judge panel that said it would undermine the principle of open justice.

      According to the account in The Guardian, ‘the judge general advocate said the court had to deal with him severely to show the international community that battlefield crimes by UK troops would not be tolerated’.

      Reference does not seem to have been made to the Rome Statute of the International Criminal Court. But a failure by British authorities to prosecute and punish Blackman adequately would have invited prosecution before the International Criminal Court. It has jurisdiction over the crime committed by Blackman because it took place in Afghanistan, which is a State Party to the Rome Statute, and it was perpetrated by a national of the United Kingdom, which is also a State Party to the Rome Statute.

Nelson Mandela

As we reflect on Nelson Mandela’s life, especially his courage, determination and dignity, a few modest words might be devoted to how this great man added to the development of ideas. Among many important facets of his contribution, two stand out for special attention.

First is the centrality of racial equality. His life places the movement to end racial discrimination as one of the most important themes, possibly the most important, in the progress of human thought.

The claim that one race is superior to another is a most noxious and destructive notion, but it is one that has afflicted humanity for several centuries, like a lingering disease without a cure. It was the underpinning of such atrocities as chattel slavery and the slave trade, but also of colonialism, and of Auschwitz. And, of course, of apartheid.

In 1948, South Africa abstained in the vote to adopt the Universal Declaration of Human Rights because its delegate had choked on the opening words of article 1: ‘All human beings are born free and equal in dignity and in rights.’ But South Africa was not the only country at the time with a form of legal apartheid. It was not the only country to deny the noble principle of equality, despite the words of the Universal Declaration.

Early in the history of the United Nations, racial discrimination was placed at the centre of human rights initiatives. This was manifested in the first great treaties: the Genocide Convention, in 1948, and then the International Convention for the Elimination of All Forms of Racial Discrimination, in 1965. Initial inroads in the historic resistance of the United Nations to genuine intervention in domestic human rights matters came from the pressure of newly freed states in Africa and elsewhere to compel the organisation to deal with South African racism. It is sometimes forgotten that it was the south, not the north, that began to push human rights up the agenda of the United Nations.

When Nelson Mandela was born, 95 years ago, racism featured in the policies of many if not most states in the world. Think of Jim Crow in the United States, residential schools in Canada and Australia, King Leopold’s Ghost in central Africa, to mention only a few examples. Within months of Mandela’s birth, as the new League of Nations was being constructed, Japan proposed a resolution condemning racial discrimination. It was rejected, apparently vetoed by President Woodrow Wilson. Today, the man who occupies Wilson’s old office is one of the great contemporary symbols of, as well as an eloquent voice for, racial equality.

It is premature, perhaps, to say that racism is a thing of the past. It lingers on in many ways and forms. But the progress over the past century has been immeasurable. In the span of this great man’s life, racism went from being accepted policy, enshrined in law, to an international prohibition whose stigma no State can now bear. Many great individuals deserve credit for this, but perhaps they should remain nameless for a few more days as a tribute to the greatest one of them all.

Nelson Mandela’s other important contribution is in the area of what is called ‘transitional justice’. There are reports, studies, UN resolutions, doctoral theses and countless books and articles on the subject. Mandela delivered what others talk about. His gamble was that justice might be tempered in order to ensure a transition without unbearable violence. Two decades later, South Africa, despite its many problems, remains at peace.

Three years ago, at the Kampala Review Conference of the International Criminal Court, some speakers said that ‘amnesty is no longer an option’ and that ‘amnesty is off the table’. Nobody explicitly condemned the South African model of transitional justice, but the implication is obvious. Indeed, I have often heard conference speakers insist that because of the contemporary commitment to prosecution of those responsible for heinous crimes, a South African-style transition is no longer viable.

But Nelson Mandela never renounced the approach he took to transitional justice. Of course there were those in South Africa who were unhappy about the amnesty provisions. Some victims could claim legitimately that they had not received full justice. Mandela’s profound understanding was that justice should not trump peace.

His message, despite many pronouncements to the contrary in academic, judicial and political circles, has been broadly accepted. If this were not the case, we would expect to see attempts by hyperactive prosecutors in European countries to prosecute South Africans under universal jurisdiction for the crime against humanity of apartheid, and to take legal and political action against South Africa for failing to honour its international obligations to prosecute the crime. But there has been nothing of the sort. Mandela did not deliver a Pinochet-style self-amnesty, but it was an amnesty nevertheless, and it led to ‘impunity’. One of the great crimes against humanity of the twentieth century has gone essentially unpunished. Yet nobody is clamouring to change this. That is because of our immense respect for the path that Nelson Mandela identified.

Some years ago, the International Committee of the Red Cross published a study that suggested there should not be an amnesty for international crimes. It said this was ‘a norm of customary international law’ established by ‘State practice’. In the discussion of this point, Nelson Mandela was not mentioned. His practice in the South African transition, as well as that of the many States that have accepted the South African approach without objection, obviously stands for the opposite point of view. Ultimately, Mandela’s flexible and nuanced understanding of the relationship between peace and justice is so much more productive than the inaccurate claims in some quarters that amnesty is unlawful or, at the very least, that it should always be rejected by peacemakers.

Mandela has helped humanity to think differently. Perhaps that is his greatest legacy.

Kristallnacht

Seventy-five years ago, on 9-10 November 1938, Nazi persecution of the Jews took an ominous turn. Reacting to the assassination of a German diplomat in Paris by a Jewish man whose family had already suffered terribly under the Nazi regime, a pogrom took place in Germany and Austria during which scores of Jews were murdered, tens of thousands were arrested and taken to concentration camps, and many synagogues were burned and destroyed. It is known as die Kristallnacht because of the broken glass that littered the roads and footpaths next to Jewish-owned shops and synagogues.

No convictions were ever registered for the Kristallnacht atrocities by either the International Military Tribunal or in the subsequent proceedings held by American military tribunals at Nuremberg. The reason is the approach taken by these courts to the scope of crimes against humanity. Pursuant to the Charter of the International Military Tribunal, where crimes against humanity were first codified, a link with the aggressive war was required as an element of the crime. Indeed, there were no convictions by these tribunals for any crimes against humanity committed prior to September 1939.

As I noted in an article published a few months ago in the Leiden Journal of International Law, one of the significant features of the Eichmann trial held in Jerusalem in 1961 (for those readers who have not seen it, the current film on the trial, ‘Hannah Arendt’, is highly recommended) was the first conviction for crimes against humanity committed prior to the outbreak of the war. The judgment contains the following passages that are of relevance to Kristallnacht.

57. On 27 October 1938 the Germans for the first time carried out an act of mass expulsion against Jews. Thousands of Jews of Polish nationality living in German cities were arrested simultaneously, transported by rail to the Polish border in the region of Zbaszyn and cruelly expelled and forced to cross the border (Session 14, Vol. I, p. 207; Session 17, Vol. I p. 226). Amongst them was the witness Zyndel Grynszpan, who had been living in Hanover since 1911, with his wife and two of his children. Another of his sons, Hirsch Feivel Grynszpan, shot the Counsellor of the German Embassy in Paris, vom Rath. After this act, the wave of persecution swelled up against the Jews in general.

On 9 November 1938 news came that vom Rath had died of his wounds, and immediately the signal was given for pogroms against the Jews on the same night (the eve of 10 November 1938), known as “Crystal Night.” In the cities of Germany organized gangs burst into Jewish shops and apartments on orders from above, committed acts of violence against Jews, destroyed and plundered everything that fell into their hands. One hundred and ninety-one synagogues went up in flames and another seventy-six synagogues were demolished. The day after, throughout the Reich, there began the arrests of thousands of male Jews, who were brought to concentration camps.

On 12 November 1938, Goering, who was in charge of the Four Year Plan, issued an order for the payment by the Jews of Germany of a billion marks as “expiation money.” This order was carried out by levying twenty-five per cent of the value of Jewish property (T/634). He also issued a second order on the same day forbidding Jews, inter alia, to maintain retail establishments and to work as independent craftsmen (T/76).

During the same period regulations were issued for the “Aryanization” of Jewish businesses and other assets, that is to say, for their forced transfer to non- Jews at unrealistic prices (T/79). Simultaneously with the persecution of the Jews as individuals came the control by the German state over their autonomous institutions. In March 1938, their status as public bodies was withdrawn from the Jewish communities, which thereby lost their authority to levy taxes, and on 4 July 1939 the Jews were organized compulsorily in the “Reich Association of the Jews in Germany” (Reichsvereinigung) which was placed under the control of the Minister of the Interior (T/81).

The minister was also authorized to disband existing Jewish organizations or to merge them in the Reich Association. Such a merger of an organization involved a transfer of its assets to the Reich Association. Thus a convenient instrument was created for total control by the Reich Government of the public property of German Jewry.

64. … It has not been proved to us that [Eichmann] took part in organizing the Crystal Night pogroms, on the eve of 10 November 1938, in Austria (behind which were the Gestapo and the SD), though the very same night information about the events was transmitted to him through service channels (T/138, T/140, N/34). But it is a fact that he exploited for his own purposes the panic which reigned amongst the Jews because of these events, in order to speed up the process of forced emigration. Mr. Fleischmann described the speech made by the Accused to the Jews who crowded into the Palestine Office in Vienna on the day following Crystal Night:

. “He (the Accused) spoke about the unsatisfactory rate of the disappearance of Jews from Vienna. He said that entirely different ways and measures would have to be used, and that he would see to that.” (Session 17, Vol. I, p. 262.) And so we read in the general report describing the activities of Dr. Loewenherz about a conversation which took place in March 1939, when the Accused said to him, “that the number of applications for emigration had gone down considerably in the last few days, and if the number of applications did not go up within two days, he would propose the adoption of measures which could take on the same form for everyone as in November 1938” (T/154, p. 9; Session 90, Vol. IV, pp.xxxx15, 16; with regard to the authentication of the report, see Mr. Zidon's affidavit, T/37 (233)).

. A similar threat was uttered by the Accused to the representatives of German Jewry after their visit to Vienna, when it displeased him that, while there, they contacted the Jews of Vienna of their own accord.

. “ “If this happens again, you will go to the Konzertlager” (instead of Konzentrationslager - concentration camp). (Session 15, Vol. I, p. 228.)

The judges of the District Court of Jerusalem did not find that Eichmann had any direct role in Kristallnacht. In their conclusions, they wrote:

184. With regard to the period up to the outbreak of war, the acts specified in section (d) of the third count were not yet part of the programme for the Final Solution by way of complete physical extermination. Accordingly, we have to consider separately each of these series of acts - for example, the events of the Crystal Night. If so, there is, in our view, grounds for saying that the mass acts of violence, committed by the National Socialist regime up to the outbreak of the War, as for instance the dispatch of thousands of Jews to concentration camps, were already committed with intent to destroy the Jewish People in part, and therefore they already come within the definition of “crime against the Jewish People,” within the meaning of Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law; for it was clear from the outset to those who sent the Jews to the concentration camps because of their being Jews, that the prisoners would be placed there in such living conditions as would cause many of them to die - and this was the purpose of those who sent them there.

But there is no need for us to decide this question finally, because, in our view, it has not been proved that, until his transfer to Vienna in 1938, the Accused had already taken an active part in the mass persecutions mentioned in section (d) of the third count. We have explained above (in section 62) that up to that date the Accused was engaged in intelligence work and not on executive measures. We have also found that it has not been proved that the Accused participated in the organization of the Crystal Night in Austria (Section 64).

185. With regard to the activity of the Accused in the Central Office for Emigration in Vienna, Prague and Berlin, designed to bring about the forced emigration of Jews, we have found that here the Accused exerted pressure and used threats of terror (Section 65). Amongst other things, he also threatened to send Jews to a concentration camp if emigration were not speeded up as he wanted. We have come to the conclusion that these threats do not amount to active participation in dispatching Jews to concentration camp or in what occurred inside these camps. The organization of forced emigration itself was not yet accompanied by intent to destroy the Jewish People, but there is no doubt that in the circumstances that have been described these were acts of expulsion of a civilian population which fall within the definition of “crime against humanity.”

Thus, although Eichmann was not convicted for direct involvement in the Kristallnacht, he was convicted of crimes against humanity that were part of the aftermath of that terrible night. Eichmann 'exploited for his own purposes the panic which reigned amongst the Jews because of these events, in order to speed up the process of forced emigration'.

Albert Camus

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Today is the 100th anniversary of the birth of Albert Camus. He was awarded the Nobel Prize for literature in 1957. Others will write about the immense contribution of Camus to literature and philosophy. A few words should be said about his engagement in favour of the abolition of capital punishment. The same year that he was awarded the Nobel Prize, Camus published, with Arthur Koestler, Réflections sur la peine capitale (‘Reflections on the death penalty’). The contribution by Camus, entitled Réflections sur la guillotine, is available in French on the internet.

It is also available in English as Reflections on the Guillotine.

Here are the immortal words of Camus:

But what then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.

Thanks to Diane Amann and  Jean-François Loyant

The ICC and Tunisia: Speech by Judge Hans-Peter Kaul

Readers of the blog may be interested in reading this speech by Judge Hans-Peter Kaul of the International Criminal Court, delivered a couple of weeks ago in Tunis. It is in French, so some readers may need to resort to Google Translate. It is of general interest and deserves to be widely circulated.

New Approach to Investigations at the International Criminal Court

The Prosecutor of the International Criminal Court has announced that her office is making important changes in its approach to investigations. She spoke about the change in remarks delivered at the Free University of Brussels on Thursday on the occasion of an award to her of an honorary doctorate. Prosecutor Bensouda said that a document explaining the changes is about to be posted on the website of the Office of the Prosecutor.

There was a strong sense in her remarks that the current approach to investigations, developed by her predecessor Luis Moreno-Ocampo, had not delivered the sort of results that were expected. More than once she referred to the fact that the judges had set higher standards and expectations about the amount and quality of evidence than the Office was in a position to provide at various stages in the proceedings.

She said that the Office of the Prosecutor plans to move away from the ‘focussed investigations’ that were the hallmark of the first nine years of activity. For example, in the Lubanga prosecution the scope of the prosecution was ‘focussed’ on the child soldier offences whereas, she indicated, many other charges might have been considered but were not. In the future, she said that more alternatives would be considered at early stages in the investigations.

Prosecutor Bensouda said that future investigations might not be directed at those ‘most responsible’ for atrocities in a given situation. Rather, the Office might try to start at the base, and build up. This is an approach reminiscent of that developed by Richard Goldstone when he was Prosecutor of the International Criminal Tribunal for the former Yugoslavia in the mid-1990s.

She also said that there would be a move away from the very heavy reliance upon eye witness testimony.

The Prosecutor said that rather than prepare investigations in stages, depending upon the procedural requirements of the Statute, the Office will now endeavour to have its cases as close to trial ready as possible as early as possible. This has been a source of frequent criticism from judges of the Court.

This report is based upon notes taken during her remarks. Probably the document setting out the new approach will complete our understanding of what the Office proposes to do.

The new prosecutorial approach is a welcome development. At the very least, there is a recognition that something within the Office has failed and needs to be changed. What remains to be seen is whether these changes will be effective and whether they will be adequate. In particular, the difficulties of the Office of the Prosecutor, and of the Court more generally, may well go beyond the approach to investigations. In her remarks in Brussels on Thursday, the Prosecutor did really address what may be a far more important source of difficulty for the Court, namely its relationship with the African Union, African States more generally and the political forces that are at work there and elsewhere. On this point, she said only that she would ‘not consider broader matters concerning peace and security’ and that she would ‘respect the mandates of others’.

As always, she presented her views in a modest and accessible manner. Her personal style is a sharp contrast with the hectoring, arrogant and very over-confident manner of the previous Prosecutor.

Appeals Chamber Rules on Presence of Kenyan Leaders During Trial

The ruling of the Appeals Chamber on the issue of presence at trial by the Vice-President of Kenya (and, by implication, the President) was delivered Friday. The Appeals Chamber confirms the reading of article 63 as permitting absence from trial. The wording appears to be peremptory and absolute. The Prosecutor had argued that the only exception was that provided in the Statute concerning removal of a disruptive accused.

The argument for the strict and literal construction of article 63 relies in part on the observation that it is not there to protect the right of the accused to be present, something that is already found in article 67 dealing with the rights of the accused. The fact that there are two provisions dealing with presence at trial certainly raises a problem of interpretation.

Bismarck once said that if you love laws and sausages it is better not to see how they are made. His observation is probably applicable to the Rome Statute. It is difficult to discern any profound purpose in the decision of the drafters to specify presence at trial in two places and not one. According to the Appeals Chamber in the recent ruling, ‘part of the rationale for including article 63 (1) of the Statute was to reinforce the right of the accused to be present at his or her trial and, in particular, to preclude any interpretation of article 67 (1) (d) of the Statute that would allow for a finding that the accused had implicitly waived his or her right to be present by absconding or failing to appear for trial’. The more flexible view adopted by the Appeals Chamber that presence at trial is a right to be exercised by the accused that can be waived is surely the correct one.

In the Trial Chamber, much attention was devoted to the application of article 27. A quite imaginative suggestion was advanced that the prohibition of the defence of official capacity meant that it was improper to take into consider the special functions of Vice-President Ruto in applying article 63. The Appeals Chamber ignores this point entirely.

After acknowledging that the Trial Chamber has discretion to excuse the accused from presence at trial, the Appeals Chamber goes on to find that the discretion of the Trial Chamber was not exercised properly. This is the unconvincing part of the judgment. It seems as if we leave the legal environment, where the Appeals Chamber reaches conclusions based upon interpretation of the text in light of the drafting history and the case law, and move onto the terrain of the individual opinions of its members.

The Appeals Chamber doesn’t agree with the way the Trial Chamber used its discretion. It sets out a number of criteria for applying article 63. Where these come from is a mystery. Confronted with such a problem, the late Antonio Cassese would have canvassed the sources of applicable law in order to see if rules and guidelines could be derived from, for example, ‘general principles of law’ found in national court decisions. But here the Appeals Chamber does nothing of the sort. The final portion of the judgment in which it develops the standards for applying article 63 is exceedingly brief and does not seem to be rooted in any recognised sources of law.

I suppose the Appeals Chamber devised the criteria to be applied in its wisdom, based upon ‘common sense’. But then so, presumably, did the Trial Chamber. That’s the whole point of discretion. If legislation leaves a judge with discretion, then the exercise of that discretion should be respected absent evidence that it has been exercised in a grossly abusive manner or for improper motives, which has never been suggested in this case.

It is probably not helpful to the proper administration of justice for the Appeals Chamber to intervene with the Trial Chamber merely because in its view the latter ‘interpreted the scope of its discretion too broadly and thereby exceeded the limits of its discretionary power’, as the Appeals Chamber says. As things stand right now, we simply have a disagreement amongst judges about the use of discretion. Why should that be a matter for appeal?

Belfast Guidelines on Amnesty and Accountability

Yesterday the Belfast Guidelines on Amnesty andAccountability were released.

They are the product of a series of expert meetings convened by Louise Mallinder and Tom Hadden at the University of Ulster. The document represents a consensus of the experts who participated.

The Guidelines reject the view that amnesty is prohibited by international law. They set out a series of principles that may be applied during peace negotiations in balancing a range of competing interests. In particular, they note that ‘prosecution and punishment are not the only forms of accountability; amnesties can be used to facilitate selective prosecution strategies, or made conditional on participation in truth commissions, public inquiries, restorative justice, and reparations.’

Versions of the Guidelines are available in the six official languages of the United Nations.

Moving Away from the Death Penalty in South East Asia

Participants in the Bangkok conference.

I'm on my way home from an important meeting in Bangkok organised by the Ministry of Justice of Thailand and the UN Office of the High Commissioner for Human Rights entitled 'Moving away from the death penalty in South East Asia'. Most of the States in the region were represented by government officials, academics and other representatives of civil society. We considered such issues as the role of public opinion, the 'most serious crimes' question and the use of the death penalty for drug crimes. There is a sense that the entire region is 'moving away' from capital punishment, with some States being fully abolitionist (Cambodia, Philippines), others de facto abolitionist (Myanmar, Brunei Darussalem, Laos), still others with an unofficial moratorium (Thailand), some manifesting important reductions in numbers of executions and other reforms (Singapore, Malaysia), and some where the direction seems uncertain (Indonesia, Vietnam). Fundamentally, it is a positive picture and one consistent with the worldwide trend. See

Robert Badinter, Sandra Babcock and myself in Paris last week.

Sandra Babcock's blog on the meeting.

Last  week, I was at a fascinating meeting in Paris on capital punishment, held at the École normale supérieure. It was an intersection of philosophy and law, with much discussion of the recent book of lectures by Jacques Derrida on the death penalty, published posthumously.