More on the Permanent Premises of the International Criminal Court.

Compare the two photos. The one on the left is the permanent premises of the International Criminal Court, currently under construction. The one on the right is, well, you know. It was taken at the National University of Ireland Galway a few days ago. What I'm trying to figure out is who copied whom. Was the Court's architect inspired by a visit to Ireland, or is the Irish tile-layer an admirer of the International Criminal Court?

Wigmore and I

Over the past year or so, I have developed something of an obsession with John Henry Wigmore's 1913 tome, The Principles of Judicial Proof, as given by Logic, Psychology and General Experience (because the copyright has passed, it is available as a free download here.) According to William Twining, the book received little acclaim during its author's lifetime. But in recent years, 'neo-Wigmoreans' like Twining, Terry Anderson, and David Schum have staunchly advocated Wigmore's method of charting inferences leading to judicial proof, and a number of scholars have taught courses on proof and evidence based on the method. 

In a paper I am currently working on, I use a modified form of the Wigmorean charting method to analyse findings of fact that have been overturned on appeal in international criminal judgments. In this way, I try to quantify when exactly a finding of fact becomes one that 'no reasonable trier of fact' could have reached, as the standard of review mandates. In undertaking an preliminary textual analysis, my initial sense was that the Appeals Chambers occasionally overstepped the mark by replacing the Trial Chamber's analysis of the evidence with its own. In Krnojelac, for example, the accused was acquitted of murders committed by KP Dom guards while he was warden of that detention centre. The Trial Chamber was convinced that murders had indeed occurred, but not satisfied beyond reasonable doubt that the accused had sufficient information at his disposal to put him on notice that his subordinates were murdering detainees (para. 348). The Appeals Chamber, in overturning this decision, was 'of the opinion that Krnojelac was in a position to see the blood stains spattered along the corridors of the KP Dom and the bullet holes in the walls of the entrance to the administration building' (para 179), and thus felt that no reasonable trier of fact could have reached the conclusion of innocence reached by the Trial Chamber.

When constructing my chart of the above charge and all of the relevant evidence/inferences, it became clear to me that the Appeals Chamber decision was not the de novo evaluation of the evidence that a reading of the judgment would leave one to believe it to be. The beauty of Wigmorean analysis is that it requires the user to formulate 'an ultimate probandum' (i.e. the final thing that needs to be proven); 'penultimate probanda' (usually the elements of the crime at hand) and interim or secondary inferences that would lead to those conclusions. By setting out a top-down approach, it allows the user to slot the evidence into a logical 'tree', and illustrates gaps where the inference is not supported by sufficient evidence. In my analysis of Krnojelac, the chart illustrated the fundamental error of the Trial Chamber in the case - it neglected to link the evidence it found convincing on the first penultimate probandum (i.e. that murders had occurred in KP Dom) to inferences that had to be drawn on the fourth penultimate probandum - that the accused had reason to know of these crimes. 

I am convinced of the usefulness of the method to lawyers, judges and academics (not just in international criminal law), and I really hope it will take off. Some Wigmorean scholars, along with practitioners and international criminal law academics, will come together at a conference in Bangor tomorrow and Saturday, and we can only hope that it represents the start of a new direction for evidence scholarship in international criminal law. 

No appeal for Katanga

Today, both the defence for Katanga and the prosecution announced that they would not be pursuing their appeals against the judgment of 7 March 2014, which we have previously discussed here. This move renders the 7 March decision final, which will come as a disappointment to those who questioned some of the more worrying points in the Trial judgment.

It seems that the defence was the first party to drop its appeal, and the prosecution subsequently followed suit. It is exceptionally rare for trial judgments in international criminal tribunals to be final. Of the 61 total completed cases in the ICTY, for example, less than a third (18) did not have an appeals judgment, and the reason for this in eight cases was that the accused had died. Of the remaining ten, nine were cases where the accused had pleaded guilty, and the other one was a case where the indictment had been withdrawn ahead of trial. This apparent change of heart by Mr Katanga is very puzzling indeed.

Judge Hans-Peter Kaul to Resign from Court

Judge Hans-Peter Kaul today informed friends and colleagues that he will be resigning from the International Criminal Court effective 1 July 2014 for health reasons. Judge Kaul began his service at the Court in 2003 and was re-elected to a nine-year term that began in 2006. His contribution to the work of the International Criminal Court, as well as to its creation, has been immense.

Judge Kaul and myself at Chautauqua a few years ago.

A speech he delivered a few months ago at Fudan University in China can be found here. At that time, Judge Kaul reminded listeners of his boyhood, growing up in the ruins of post-war Germany.  Judge Kaul is a sterling example of everything that is great about modern Germany and modern Germans: he is profoundly committed to international justice, deeply loyal to the work of the Nuremberg Tribunal, and utterly devoted to the importance of addressing the supreme international crime, the crime of aggression.

Judge Kaul began working on the draft statute of the International Criminal Court in 1996. He was then at the height of his diplomatic career in the Germany foreign service. I recall a conference held in Berlin a few years later at which Judge Kaul took a group of participants to visit the Foreign Ministry. He explained how he had been part of a small and select team of diplomats who had travelled from Bonn to Berlin at the time of reunification in order, in effect, to take possession of the East German foreign ministry.

As director of international law in the German foreign service, Hans-Peter Kaul led his country’s negotiating team at the meetings of the Preparatory Committee, where I first met him. At the Rome Conference, in 1998, he was head of an enormously influential delegation, packed with international criminal law expertise. His fingerprints can be found on many crucial provisions of the Rome Statute.

In his eleven years on the Court, he has served in the Pre-Trial Chamber. Judge Kaul was also a vice-president of the Court from 2009 to 2012. He has dealt with all of the important situations addressed by the Court. His contribution to the judicial work of the Court has included separate opinions on such issues as the interpretation of the policy element associated with crimes against humanity. His profound understanding of the object and purpose of the Statute's many enigmatic provisions has certainly enriched his colleagues and thereby contributed in countless ways to the evolving jurisprudence of the Court. But he has also been a tireless promoter of the Court, traveling around the world to encourage States to ratify the Statute.

An inverted swimming pool

I knew that the ICC Permanent Premises looked familiar! It came to me in the swimming pool this morning. Perhaps that is where the architect got the idea.
These mosaic tiles are sold for swimming pool liners.  And for bathroom floors!

The Permanent Premises of the International Criminal Court

Yesterday I walked by the construction site of the Permanent Premises of the International Criminal Court and took a photo.

I wish I could say that I was impressed with the elegance and dignity of the building. If it were built in London, some clever journalist would give it a rather sarcastic name, like the jewel box. Perhaps readers of the blog can come up with some ideas. With its strange, brightly coloured windows and its unimaginative boxy profile, it looks a bit like the kind of cheap souvenir one finds in shops at airports. Give it a couple of neon signs and a few slot machines in the lobby and it might fit in better on the strip in Los Vegas.

The Court's Permanent Premises seem to be a far cry from the majestic building that Andrew Carnegie put up a few kilometres away, where the International Court of Justice has its premises. The site itself is disappointing. Instead of being prominently located in the centre of The Hague it is really very much on the periphery, far from any prestigious neighbours.

But who knows? Perhaps it will grow on us. Many also mocked the Eiffel tower when it was first built although I am inclined to think that ‘this ain’t no Eiffel tower’.

 

Ben Whitaker

 

Benjamin Whitaker passed away a few days ago at the age of 79. Whitaker had many distinctions, including authorship of the principal United Nations report on the Genocide Convention. He produced the report in 1985, when he was a member of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. It was an expert body subordinate to the Commission on Human Rights that dates back to the very beginnings of the United Nations. The Sub-Commission disappeared in the 2006 reform of the United Nations institutions.

Whitaker described genocide as ‘the ultimate human rights problem’. He argued in favour amending the 1948 Genocide Convention in order to comprise a broader range of protected groups, including political groups and groups based upon sexual orientation, amongst other changes.

The Sub-Commission had worked on the subject of genocide since the 1970s. An earlier rapporteur of the Sub-Commission had produced a report that spoke of the Armenian genocide but he withdrew the reference after pressure was put on him by Turkish diplomats. The Sub-Commission then asked Whitaker to produce a revised document. Whitaker’s report left no ambiguity about the Armenian genocide. It was cited as authority by a French court in 1995 during a libel trial concerning historian Bernard Lewis.

Many of Whitaker’s other important accomplishments are set out in the fine obituary by Geoffrey Robertson in today’s Guardian. There is also a Wikipedia entry.

Some thoughts on the Ntaganda and Gbagbo confirmation of the charges decisions at the ICC

The International Criminal Court has issued two confirmation of the charges decisions this week - in the case of Laurent Gbagbo, on 12 June, and Bosco Ntaganda, on 9 June. 

The length taken to issue these decisions is notable in light of the Court's Regulation 53, which states that the decision on the confirmation of the charges 'shall be delivered within 60 days from the date the confirmation hearing ends.' By my count, 469 days passed in the Gbagbo case between the last date of the confirmation hearing (28 February 2013, although a decision adjourning the confirmation hearing and requesting further information was issued on 3 June 2013) and the issuance of this decision. While the Ntaganda Chamber did slightly better (115 days from the final date of the confirmation hearing), the blatant disregard for a Regulation clearly designed to protect the right of the accused to trial without undue delay is notable. Indeed, it seems that only the Lubanga and Katanga confirmation decisions have comported with this time limit to date.

In both of the most recent confirmation decisions, we see an implicit discomfort with the recent Regulation 55 debacle in Katanga. Both decisions opted to confirm the Prosecutor's request to cumulatively charge the accused with a number of potential modes of liability, ultimately leaving it up to the Trial Chamber to decide which (if any) mode of liability most appropriately fits the conduct of the accused. This move was motivated by the need to ensure 'judicial efficiency', per the Ntaganda Pre-Trial Chamber (para 99), and 'taking stock of the past experiences of the Court', according to para 228 of the Gbagbo Pre-Trial Chamber. Doubtless, cumulative charging is likely to avoid the repetition of another disastrous application of Regulation 55 (although the Gbagbo Chamber was careful to avoid excluding this possibility), and to that extent, might assist in ensuring that the accused is fully informed of the charges against him or her, as well as avoiding delay later in the process. However, it might seem that the Prosecutor's move to confirm several modes of liability as potential bases for criminal liability highlights some uncertainty as to the most appropriate mode of liability.

This is perhaps highlighted in the finding of the Gbagbo Chamber on common purpose liability pursuant to Article 25(3)(d). At para 231, the Chamber noted that 'violence against civilians, while not in itself the ultimate goal of Laurent Gbagbo and his inner circle, was a criminal element inherent to the common plan to stay in power at any cost.' Pursuant to Article 25(3)(d)(i), the individual charged with this form of liability must have contributed to the common purpose of the group 'with the aim of furthering the criminal activity or criminal purpose of the group.' This formulation suggests that the common purpose of the group must be primarily criminal in nature. Presuming, arguendo, that this is not the case, it is clear that the accused's conduct must be directed to the perpetration of crimes by the group. Of the seven categories of evidence referred to on this point, only one ('Gbagbo's public statements which indicate an intention to hold on to power at any cost, including by use of force against civilians') explicitly links the accused to the crimes committed. Judge van den Wyngaert, in a dissenting opinion, was unconvinced of the sufficiency of the evidence on this point. This was despite the fact that the confirmation decision was adjourned last year, given the prosecution's excessive reliance on hearsay evidence and NGO reports. It is perhaps beside the point, but worthy of note, that the 3 June 2013 decision arises out of one of the provisions of the ICC Statute that, in my view, has the greatest potential for unfairness - Article 61(7)(c), which permits the Pre-Trial Chamber to adjourn the confirmation hearing and request further evidence from the Prosecutor (but not the defence!). Article 61(7)(c) results in an inequality of arms, and effectively offers the prosecution a second chance to meet the 'substantial grounds to believe' threshold.

On a more positive note, the finding in the Ntaganda decision that war crimes can be committed against those taking part in hostilities on the same side as the perpetrator (paras 76-82) is to be welcomed. The defence had appealed to the purpose of IHL, which was devised to protect those taking part in hostilities when they fall into the hands of the enemy. In finding that the war crimes of rape and sexual slavery can be committed by a military leader against their own combatants in a non-international armed conflict, the Chamber referred to the principle that the protection of IHL is only lost when one takes active part in hostilities, and that the victims of rape and/or sexual slavery could not be considered to be directly participating in hostilities 'during the specific time when they were subject to acts of a sexual nature'. Rosemary Gray has a fascinating blog post on this exact point at Beyond the Hague, which is well worth a read.

The Torture Files: New Evidence of Use of the 'Five Techniques'

In the ‘The Torture Files’, the Investigations Unit of the Irish national broadcasting service (RTE) argues that new evidence, which was unearthed in the British National Archives, could justify a re-visiting of the European Court of Human Rights judgment in the Ireland v United Kingdom case. The programme, broadcast on 4 June 2014, can be viewed here. Rita O’Reilly of the RTE Investigations Unit discusses their revelations in the Irish Times here.

Subsequent to the broadcast, Sinn Féin President Gerry Adams called on the Irish Government to request the ECHR to re-open the case. Amnesty International’s Northern Ireland Programme Director Patrick Corrigan has described the evidence that the British Government misled the European Commission and Court of Human Rights during the proceedings as ‘deeply worrying’.

‘The Torture Files’ traces the experiences of the 14 ‘Hooden Men’ who were subjected to what became known as the ‘Five Techniques’. As ‘The Torture Files’ recounts, the ‘Five Techniques’ involved five sensory deprivation methods applied in combination over several days. These are hooding, sleep deprivation, a severe wall-standing position, continual noise generator and bread/water diet. In August and October 1971, these ‘Five Techniques’ were used during the ‘interrogation in depth’ of 14 men. These interrogations arose out of the 1971 Operation Demetrius, an operation mounted by the British Army and the RUC on the 9 August 1971 that detained 342 men and signalled the introduction of internment or detention without trial.

‘The Torture Files’ shows that the British Government was aware that the ‘five techniques’ produced severe long-term psychological effects. The Irish Government’s expert witnesses before the European Commission of Human Rights, psychiatrists Professor Robert Daly and Professor Baastians, argued that the effects of the techniques would be long-term mental and physical illness. In opposition, the British Government’s expert witness, Dr Leigh, argued that the ‘acute psychiatric symptoms developed during interrogation were minor and their persistence was the result of everyday life in Northern Ireland’. Yet, among other revelations, ‘The Torture Files’ divulge the contents of Dr Leigh’s Report where he later in 1975 assessed one of the 14 men and drew a completely opposite conclusion –considering that the ‘other psychiatric symptoms’ was probably the result of interrogation in depth.

The Irish Government argued in the European Commission on Human Rights hearings that ‘the British Government failed on several occasions in their duty to furnish the necessary facilities for the effective conduct of the investigation’. However, the European Commission did not draw this conclusion but as the Court’s judgment recalls, it did note that the assistance afforded was not always at a desirable standard.

Another significant revelation in the ‘The Torture Files’ is the letter from Merlyn Rees (Home Secretary) to British Prime Minister Jim Callaghan in March 1977. Here, Rees stated that his view (confirmed by former Stormont Prime Minister Brian Faulkner) was that the decision to ‘use torture in Northern Ireland’ was ‘taken by Ministers in particular Lord Carrington, then Secretary of State for Defence’ and therefore, prosecutions of members of the security forces should not take place. The Ministry for Defence concurred.

Yet, in the UK Counter-Memorial, the British Government argued that they ‘do not admit any of the particular allegations of ill-treatment made by the applicant Government, or that any particular act alleged is attributable to or the responsibility of the UK Government’. ‘So far as concerns the five techniques….the UK Government deny that the techniques, as applied in Northern Ireland, constituted ill-treatment contrary to Article 3 or that the use of these techniques constituted an administrative practice contrary to article 3…..the UK Government accordingly maintain that the allegation of an administrative practice is ill-founded’ (ECHR Report, p260).  Further, ‘it would be….neither be fair nor reasonable to regard condonation by sub-ordinate officers of acts forbidden by higher authorities as an administrative practice for which the Government is responsible and there was no evidence of such toleration’ (ECHR Report, p264). Here, the UK was arguing that the official tolerance element of an administrative practice must involve ‘a superior of such rank as to be entitled to speak for the Government’ or of rank that an inference of authority can be drawn. But the European Commission of Human Rights reiterated that official tolerance involved either the direct superiors of those immediately responsible for the acts or that of a higher authority. This allowed the Irish Government to successfully demonstrate an official tolerance despite the lack of evidence at the time of a political decision. Therefore, Merlyn Rees’ understanding would mean that the acts of lower level officers had not been prohibited by higher authorities but had been political sanctioned, despite consistently denying an official tolerance before the European Commission of Human Rights.

In light of these revelations, it has been argued that there are grounds to re-open the case and revisit the Court’s decision on article 3 where it found that the five techniques constituted a practice of inhuman and degrading treatment in breach of article 3 but did not amount to torture (the latter being the finding of the European Commission). The argument that the case can be re-opened hinges on previous situations where the European Court of Human Rights has reversed its earlier decisions. In Al-Khawaja and Tahery v United Kingdom, the UK Government requested the ECHR to revisit its judgment and in turn, the ECHR overturned its original finding that the UK violated article 6 in relation to admissibility of hearsay evidence. However, this procedure falls under article 43 of the ECHR, which permits any party to request, in exceptional cases, the case to the referred to the Grand Chamber within 3 months of the Chamber judgment. Rather ‘The Torture Files’ claim would fall under Rule 80 of the Rules of the Court. Under Rule 80(1), ‘a party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within the period of six months after that party acquired the knowledge of the fact, to revise the judgment’.

The Irish Times reports that the Irish Attorney General Maire Whelan has refused to seek the case to be re-opened after representations from lawyers acting for the ‘Hooded Men’. However, Rita O’Reilly reports that the Irish Department of Foreign Affairs has sought access to the RTE Investigation Unit’s research. Whether the Irish Government’s position will remain unchanged, time can only tell. The sequence of events in 1971 that led to Irish Government’s application to the European Commission on Human Rights began with a suggestion by Sean MacBride to make such an application, which was reported in the Irish media in August 1971 and which gathered considerable momentum over the following months. 

This blog post was contributed by Dr Aisling O’Sullivan, lecturer in law at Sussex Law School. Dr O’Sullivan was project researcher with Professor Schabas, who was the Principal Investigator, on a project funded by the Irish Research Council for the Humanities and Social Sciences ‘Ireland’s Participation in International Human Rights Law and Institutions’. The research including an investigation of Irish and British National Archives files on the Ireland v UK case. The research, which was undertaken at the Irish Centre for Human Rights, was used by RTE in preparation of ‘The Torture Files’.

Dr Stefanie Heinrich

From left, Shane Darcy Ray Murphy, Stefanie Heinrich and Stefan Parmentier

Stefanie Heinrich successfully defended her doctoral thesis today at the Irish Centre for Human Rights. The thesis is entitled ‘Transitional Justice for East Timor: Done and Dusted’. The external examiner was Prof. Stefan Parmentier of the Catholic University of Leuven. The internal examiner was Dr. Shane Darcy. Prof. Ray Murphy served as chair of the examination. Congratulations, Stefanie.

Perincek case on genocide denial referred to Grand Chamber of European Court

Last December, the European Court of Human Rights ruled in favour of the applicant in Perincek v. Switzerland, a case involving denial of the Armenian genocide. The decision was issued in French only so it was not as widely accessible as it might have been had it been issued in English too. An English summary of the case is issued by the Court. Switzerland decided to request that the case be referred to the 17-judge Grand Chamber for a new look at the issue. The Grand Chamber's decision prevails over that of the Chamber. Last week, the Grand Chamber agreed to hear the case.
It is possible for interested States as well as organisations to intervene in the proceedings, after obtaining the permission of the President of the Court. They are generally permitted to make written submissions that will be considered by the Grand Chamber and referred to in the judgment but they do not participate actively in the oral hearing. The oral hearing will probably be held in three or four months.

Zeid bin Ra'ad to be new High Commissioner for Human Rights

Yesterday the Secretary-General of the United Nations announced that he will appoint Prince Zeid bin Ra'ad as the next High Commissioner for Human Rights. The appointment is subject to what should be a routine approval by the General Assembly.
The position, created in 1993, has been occupied by several very distinguished individuals. Ban Ki Moon's inspired choice ensures that this tradition will continue. Our great thanks are due to the outgoing High Commissioner, Navi Pillay, who has done such a fine job during the course of her mandates.
Over the years, Zeid has been involved in a number of important initiatives related to human rights and international justice. He was president of the Assembly of States Parties of the International Criminal Court. He played a very important and effective role at the Kampala Conference, ensuring the adoption of the amendments to the Rome Statute concerning the crime of aggression. A brilliant diplomat, he also has real field experience. In the 1990s, Zeid served as a human rights officer in the former Yugoslavia. A few years ago, he delivered a fabulous lecture on international justice at Brandeis University, available here.
And he's got a PhD! I believe he is the third High Commissioner to have been awarded the degree based upon a thesis. The outgoing High Commission, Navi Pillay, has a JSD from Harvard, which is equivalent to a PhD. Sergio Viera de Mello earned a doctorate at the Sorbonne. Bertram Ramcharan, who was Acting High Commissioner for about a year, also had a doctorate. All of this proves that a doctorate is not only a great degree as preparation for a career in the academy.