Special Tribunal for Lebanon does not have Jurisdiction over Legal Persons

On 24 July, Judge Lettieri, acting as contempt judge of the Special Tribunal for Lebanon, decided that the Tribunal does not have jurisdiction over corporations for contempt offences, contrary to an earlier decision discussed at length here. The Contempt Judge noted:

Irrespective of one's position as to the better policy (and I could even agree with Judge Baragwanath de lege ferenda), the fact that the Tribunal is not allowed to prosecute legal persons does not as such render its contempt power meaningless. The natural persons who comprise a corporation, no matter how high their position, can still be held responsible for interfering with the administration of justice and this makes the Tribunal's authority to deal with contempt and obstruction of justice effective. 

A number of amici curiae briefs challenged the Tribunal's inherent jurisdiction over offences against the administration of justice generally and their impact on the right to freedom of expression. The Contempt Judge rightly held that jurisdiction over such offences is a necessary corollary to the exercise of judicial powers, as I discussed at length in my chapter on contempt offences in this volume. He also found that the balance with freedom of expression was not relevant to the question of whether the Tribunal could have jurisdiction over such offences. 

Towards 'Positive Complementarity'?

On Thursday, the Appeals Chamber of the ICC confirmed the Pre-Trial Chamber's decision that Abdullah al-Senussi should stand trial in Libya. An interesting part of the judgment addresses the issue of 'positive complementarity' (see some excellent contributions to the debate here, here and here); that is, whether an overly-harsh trial not according the full panoply of rights to the accused could fall afoul of Article 17's 'unwilling' or 'unable' criteria:

Taking into account the text, context and object and purpose of the provision, this determination is not one that involves an assessment of whether the due process rights of a suspect have been breached per se. In particular, the concept of proceedings "being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice" should generally be understood as referring to proceedings which will lead to a suspect evading justice, in the sense of not appropriately being tried genuinely to establish his or her criminal responsibility, in the equivalent of sham proceedings that are concerned with that person's protection. 

However, there may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be "inconsistent with an intent to bring the person to justice". 

The second paragraph seems to suggest that the door is not fully closed to a more expansive interpretation of the complementarity clause, to include unfairness to the accused. Conversely, however, the Appeals Chamber refused to accept additional evidence from the defence, which purported to show that the authorities had mistreated the accused in custody for the purposes of obtaining a confession from him. 

Decision on Victims' Request for Disqualification of Judge van den Wyngaert from the Katanga case

The Plenary of Judges of the International Criminal Court yesterday rejected an application from the victims' representatives for the disqualification of Judge van den Wyngaert from the Katanga case. The victims had wanted Judge van den Wyngaert to be excluded from any considerations of reparations in the case, claiming that her dissents to the trial and sentencing judgments showed bias. Yesterday's decision contains an interesting paragraph on the value of separate and dissenting opinions:

Minority opinions protect judicial proceedings from the influence of forced uniformity, afford necessary impetus for the development of the law and prevent stagnation in decision making... [The Plenary] considered that minority opinions enrich the quality of decisions and improve their clarity from the perspective of the views of the judges thus expressed, and demonstrate to the parties, participants and public at large that a case has been thoroughly assessed. The Plenary considered it a paradox that a bastion of judicial independence was being used as a basis for the disqualification of the Judge.

Of course, it is unavoidable that judges have prior involvement with the case before the reparations stage of proceedings. If the application had been successful, it would have meant that reparations had to be decided upon by a newly-constituted panel of judges, who had not heard any of the evidence during the case.

However, the motion primarily failed because the majority (with three dissenters) held that victims did not have standing to request the disqualification of a judge. Article 41(2)(b) of the Statute refers solely to the Prosecutor and the accused, but victims had argued that Article 21(3) (the 'internationally recognised human rights' provision) called for an expansive interpretation of the provision to include victims. The majority rightly considered that the wording of Article 41(2) was unambiguous in granting the right to request disqualification solely to the parties. It also implicitly rejected the argument that victims become parties, as opposed to participants, at the reparations stage of proceedings, by stating that 'they are indeed important protagonists at the reparations stage.'

Lastly, on the issue of whether the apprehension of bias against one judge on the bench can give rise to an apprehension of bias against the bench as a whole, Judge Chile Eboe-Osuji noted in his separate opinion that not everyone accepts the wisdom of the epigram, "One bad apple spoils the bunch". He accompanied this observation with the following, highly entertaining, footnote:

Notably, the American pop band, the Osmonds, have literally recorded a contradictory note, insisting that ‘One bad apple don’t spoil the whole bunch’. 

Hans-Peter Kaul RIP

Judge Hans-Peter Kaul passed away earlier today after a short illness. He had resigned from the Court effective 1 July of this year.
I wrote about Judge Kaul and his immense contribution in late-June, when the resignation was announced, and will not rehearse what I said then. Here is the link.
He was a dear friend and I shall miss him greatly. I last saw him in The Hague in late March when we had a wonderful dinner together, chatting about many things including his plans following retirement from the Court, which was due in early 2015. When we had finished, he rode back to his home on his bicycle. A few weeks later, he was diagnosed with the illness that ended his life so abruptly. 
Our deepest sympathies go out to his wife Elizabeth and to the other members of his family.

Charles Ogletree Predicts Abolition of the Dealth Penalty by the United States Supreme Court

July 19, 2014 | Washington Post OpEd

The death penalty is incompatible with human dignity
By Charles J. Ogletree Jr.

I have wondered countless times over the past 30 years whether I would live to see the end of the death penalty in the United States. I now know that day will come, and I believe that the current Supreme Court will be its architect.

In its ruling in Hall v. Florida in May, the court — with Justice Anthony M. Kennedy at the helm — reminded us that the core value animating the Eighth Amendment’s cruel and unusual punishments clause is the preservation of human dignity against the affront of unnecessarily harsh punishment. Hall, which prohibited a rigid test in use in Florida for gauging whether a defendant is intellectually disabled, was the most recent in a series of opinions in which the court has juxtaposed retribution — the idea of vengeance for a wrongdoing, which serves as the chief justification for the death penalty — with a recognition of our hopelessly complex and fallible human nature.

What was important about Hall is the way Kennedy described the logic behind exempting intellectually disabled individuals from execution: “to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being” because the “diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment.” Though the court previously barred imposition of the death penalty upon intellectually disabled people, as well as juvenile offenders, Hall marked the first time that it went so far as to claim that imposing the death penalty upon offenders with these kinds of functional impairments serves “no legitimate penological purpose.”

This is why I see an end coming to the death penalty in this country. The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows. A new study by Robert J. Smith, Sophie Cull and Zoë Robinson, published in Hastings Law Journal, of the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits.

One-third of the offenders had intellectual disabilities, borderline intellectual function or traumatic brain injuries, a similarly debilitating impairment. For example, the Texas Department of Corrections determined that Elroy Chester had an IQ of 69. He attended special education classes throughout school and never functioned at a higher level than third grade. The state had previously enrolled Chester into its Mentally Retarded Offenders Program. Despite these findings, Texas executed him on June 12, 2013.

More than half of the 100 had a severe mental illness such as schizophrenia, post-traumatic stress disorder or psychosis. For example, for more than 40 years, Florida’s own psychiatrists found that John Ferguson suffered from severe mental illness. Ferguson had a fixed delusion that he was the “Prince of God” who could not be killed and would rise up after his execution and fight alongside Jesus to save the United States from a communist plot. When Ferguson was executed on Aug. 5, 2013, his last words were: “I just want everyone to know that I am the Prince of God and I will rise again.” A Florida court had called Mr. Ferguson’s delusions “normal Christian beliefs.”

Many other executed offenders endured unspeakable abuse as children. Consider Daniel Cook, whose mother drank alcohol and abused drugs while she was pregnant with him. His mother and grandparents molested him as a young child, and his father physically abused him by, for example, lighting a cigarette and using it to burn Daniel’s genitals. Eventually the state placed Daniel in foster care, but the abuse didn’t stop. A foster parent chained him nude to a bed and raped him while other adults watched from the next room through a one-way mirror. The prosecutor responsible for Cook’s death sentence stood behind him during the clemency process, telling authorities that he would have taken the death penalty off of the table had he known of his torturous childhood. Arizona refused to commute Cook’s sentence, however, and he died by lethal injection on Aug. 8, 2012.

As the execution of Elroy Chester, John Ferguson, Daniel Cook and many more like them illustrates, barring the death penalty for intellectually disabled and juvenile offenders did not solve the death penalty’s dignity problem. Rather, those cases gave us cause to look more closely at the people whom we execute. And when you look closely, what you find is that the practice of the death penalty and the commitment to human dignity are not compatible.
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Charles J. Ogletree Jr. is a professor at Harvard Law School.

Where is the Prlić et al. Judgment?

The Trial Chamber in Prlić et al. issued its judgment on 29 May 2013, sentencing all six co-accused to terms of imprisonment between 10 and 25 years, with credit for time served (since April 2004). At the time, a summary judgment was issued, and while apparently a full judgment in French has been made available to the parties, no judgment in English or in French is as yet available via the ICTY's website. The accused Pušić (who would be due for release around now, were it not for the ongoing appeals) noted in his appeal brief of 27 June that neither he nor his lawyers had been furnished with the judgment in a language that they are proficient in. 

It is clear from the appellate briefs that the judgment is lengthy, at least four volumes. Nevertheless, a delay of over a year between issuance of the judgment and publication of same is inexcusable, especially when parties are requested to lodge their appeal briefs without having been given the full judgment in a language that they understand. 

Researcher Position on Extra-territorial Application of Human Rights Law

Ralph Wilde of University College London is recruiting a three-year Research Associate position, starting in September, for a project on the extraterritorial application of international human rights law.  Please find attached the job description.  The link to the advertisement is here.

Because the post does not meet the UK Resident Labour Market Test, only candidates who already have the right to work in the UK can be considered.

International Law Commission to Work on Draft Articles on Crimes Against Humanity

The International Law Commission, currently meeting in Geneva, decided this week to pursue its work on the subject of crimes against humanity. It has named Prof. Sean D. Murphy as special rapporteur, assigned to prepare  ‘draft articles’ that could be the basis of a future convention. This builds on the work of the Crimes Against Humanity Initiative directed by Prof. Leila Sadat of Washington University. The Commission recently held a workshop in Geneva with members of the International Law Commission for the purpose of explaining the draft convention that it has prepared. The goal is to develop an acceptable text of a crimes against humanity convention that will complement the Rome Statute of the International Criminal Court.

Full Time Positions at Middlesex

Five full-time positions have been announced at the Department of Law of the Middlesex University School of Law: a Senior Graduate Academic Assistant, an Assistant Lecturer in Law and up to two Lecturers and/or Senior Lecturers with expertise in at least one the following areas: Commercial Law/Company Law; Competition Law; Employment Law; International Trade Law/WTO Law.

Additional information about these positions can be found on the University website.

The academic positions have also been published on jobs.ac.uk.

Please also note that the closing date for receipt of applications is 1 August 2014.

New Book on Death Penalty in Africa

Aimé Muyoboke Karimunda, a professor at the University of Rwanda and a lawyer at the Supreme Court of Rwanda, has just published TheDeath Penalty in Africa, The Path Towards Abolition. It is a comprehensive study of the practice of capital punishment on the African continent, based upon the author’s doctoral thesis at the National University of Ireland Galway.

California Court Declares Death Penalty to be Unconstitutional

California’s death penalty legislation has been declared unconstitutional by District Court judge Cormac J. Carney a few days ago in Jones v. Chappell. See the story in the Los Angeles Times. 

The judgment begins with a summary of its findings:

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

This is obviously only the beginning of such litigation, and the decision will inevitably be appealed. It is an important decision, not only because of the compelling reasoning but also as further evidence of the shifting status of capital punishment within the United States.

Thanks to Diane Amann.

Call for papers: Media, Persuasion and Human Rights

On 10 and 11 November 2014, Bangor University will host the annual conference of the Political Studies Association's Media and Politics Group. This year's conference theme is 'Media, Persuasion and Human Rights', and the keynote speakers are Professor Jon Silverman, a former BBC correspondent who is currently researching the influence of media reports of international criminal trials on civil society in Sierra Leone, and Professor Sue Clayton of Goldsmiths University, a film-maker whose works include the award-winning Hamedullah: The Road Home, and whose research examines media portrayals of asylum-seekers.

Papers are welcome on any aspect of the conference theme. The deadline for submitting abstracts is 29 August 2014. For further information, please follow this link.

Behind the Headlines on Human Rights Law Reform in the UK

This has been a bad week for the protection of civil liberties in the United Kingdom. The 'emergency' legislation on data retention and privacy passed, having been rushed through by Parliament with little meaningful debate. The new Act will oblige internet and communications providers to retain users' data, and to build their technical capabilities to ensure that they will be able to comply with any interception request from the UK Government at any time.

This was also the week when pro-human rights Attorney General Dominic Grieve was replaced with Jeremy Wright, the man who banned prisoners from receiving books in his former role as prisons minister. And this morning, the Conservatives announced plans for new legislation that would allow Parliament to choose which rulings of the European Court of Human Rights it would like to comply with.

What are the justifications for these assaults on human rights in the United Kingdom? On the European Court of Human Rights, the consensus among the government appears to be that the Court has gone 'too far'. On BBC's Today programme this morning, we were treated once again to Teresa May's account - to raucous applause - of how the ECtHR had stopped a terrorist from being deported because 'and I am not making this up - he owned a cat'. The rulings on prisoners' right to vote have also proven controversial. The new data retention act was justified with reference to an ECJ ruling (handed down in April, but bizarrely giving rise to an emergency in July!) on the illegality of the EU's wide-ranging data protection directive.

I thought it would be useful to examine the judgments in question. On the 'cat' judgment, my searches of BAILII proved fruitless. It transpires that this was not a decision of the European Court of Human Rights, nor did it concern a terrorist. It was a decision of a lower immigration tribunal on the deportation of a Bolivian man who had overstayed his visa. The cat was not the deciding factor in the case, but rather put forward as evidence that he enjoyed a stable family life with his girlfriend, the co-owner of their feline companion.

In the prisoners voting case, it is true that the Court found that the current restrictions on the right to vote were indiscriminate, but it also emphasised the margin of appreciation that is afforded to states and declined to state exactly how UK law should be changed to comport with Article 3 of Protocol 1. In this manner, it left significant autonomy to the legislature to decide how to comply with the UK's human rights obligations. The idea that certain rights should not be granted to certain citizens because of their actions feeds into this government's increasing commodification of rights. Rather than viewing human rights as being afforded to all by virtue of being human, rights are seen as something that one has to earn.

What then, of the ECJ's ruling on data retention, which will allegedly make it harder for the police to apprehend terrorists and paedophiles? The judgment noted that it was necessary to collect communications data in order to prosecute individuals, but that such data collection and retention must be limited to what is strictly necessary. Further, it said, legislation 'must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data.' The wide-reaching new DRIPs Act (as it is known) fails to build in those guarantees. Moreover, perhaps, the government's assertion that the legislation both 'maintains the status quo' and was so necessary as to pass through emergency legislation with minimal debate in the houses of parliament is so obviously contradictory as to be almost farcical.

The government's (mis)representations on the background to, and the need for, these changes is therefore rather suspect. We can only assume that it fits in with a wider construction of the 'other' in Europe, demonised as devaluing 'British values' and needlessly meddling with day-to-day political life. Stanley Cohen has written about 'folk demons and moral panics', the phenomenon by which particular groups are presented as posing a threat to society to strengthen the power of a ruling class. But this time the enemy is those who strive for the achievement of fundamental human rights for people in the UK, while the government that opposes them seeks to take away those hard-won guarantees from right under our noses.