More Progress in General Assembly Vote on Death Penalty Moratorium

On 18 December, by a recorded vote of 117 in favour to 37 against, with 34 abstentions, the United Nations General Assembly adopted the biannual resolution on the moratorium on the use of the death penalty.

This is the fifth such resolution since 2007. The number of States in favour has steadily increased, providing confirmation of the evolving law and practice with respect to capital punishment.

The 2007 resolution was adopted by 104 in favour to 54 against, with 29 abstentions. The following year, a similar resolution was adopted by 106 in favour to 46 against, with 34 abstentions. It was decided that the issue would return to the Assembly’s agenda every second year. The third moratorium resolution was adopted by the General Assembly in 2010 by 109 States in favour with 41 against and 35 abstentions. In the fourth moratorium resolution, adopted in 2012, votes in favour totalled 111 with 41 against and 34 abstentions.

The number of States voting against the resolution has, in the space of seven years, declined by 17. That is approximately 2.5 per year. But note as well that the number of States joining the majority on this resolution is accelerating. For the past two years, 3 States per year have changed their position to support for the resolution.

This trend in the political positions of States is also reflected in their conduct.  Ten years ago, 62 States were deemed retentionist, defined as a State that has conducted an execution within the past decade. Today, that number is about 37. That is a decline of about 2.5 States every year.

Divide 37 by 2.5 and you get 14.8. The death penalty can be expected to disappear by 2029, if not sooner.

Fifty Leading Human Rights Cases

John Louth of Oxford University Press has produced a fascinating map showing fifty leading human rights cases issued by a range of international and national courts and tribunals over the years. It is a wonderful introduction to the legal framework of human rights.

ICC Summer School at the Irish Centre for Human Rights

The International Criminal Court Summer School 2015

15-19 June 2015, NUI Galway, Ireland

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

The list of speakers at the 2015 ICC Summer School has yet to be confirmed. The list of speakers at the 2014 ICC Summer School included:

Professor William Schabas - Irish Centre for Human Rights, School of Law, NUI Galway and School of Law, Middlesex University


Mr. Fabricio Guariglia - Appeals Division of the Office of the Prosecutor at the International Criminal Court


Dr. Mohamed M. El Zeidy - Pre-Trial Chamber II at the International Criminal Court


Dr. Rod Rastan - Office of the Prosecutor at the International Criminal Court


Professor Ray Murphy - Irish Centre for Human Rights, School of Law, NUI Galway


Dr. Noelle Higgins - Irish Centre for Human Rights, School of Law, NUI Galway


Dr. Shane Darcy - Irish Centre for Human Rights, NUI Galway


Dr. Nadia Bernaz - School of Law, Middlesex University


Mr. John McManus - Crimes Against Humanity and War Crimes Section, Canadian Department of Justice


Professor Megan A. Fairlie - Florida International University


Dr. Mohamed Badar - Northumbria University, United Kingdom


Professor Donald M. Ferencz - Middlesex University School of Law, London

Dr. Kwadwo Appiagyei Atua - University of Ghana and University of Lincoln

An early bird registration fee of €400 is available for delegates who register before 31 March 2015, with the fee for registrations after that date being €450. The registration fee includes all course materials, all lunches and refreshments, a social activity and a closing dinner. A limited number of scholarships are available. Please see the General Information section of our website for further information.

To register and for more information regarding the 2015 ICC Summer School, please visit our website at: http://www.conference.ie/Conferences/index.asp?Conference=405.

Should you have any queries, please email: iccsummerschool@gmail.com.

The ICC Prosecutor 'shelves' the Darfur situation: What is the Security Council supposed to do?

It has been widely reported that the ICC's Prosecutor has told the Security Council that no further investigative action would be undertaken in the Darfur situation. This is apparently owing to the Council's failure to act on securing the arrest of the suspects in that situation, including the Sudanese President, Omar Al Bashir. Notwithstanding that 'shelving' prosecutions, which seemingly stops short of a formal withdrawal of the charges but incorporates a formal strategy of non-action, is unforeseen by the Statute, this declaration certainly comes as a shock, especially so soon after the charges were dropped in the Kenyatta case. It means that, in the space of less than a fortnight, two sitting heads of state facing charges before the International Criminal Court have effectively found themselves off the hook, at least for the immediate future. 

The Prosecutor's frustration is understandable, given that every single decision in the case for the past four years has concerned Bashir's travel to other states, apparently unhindered by his arrest warrant. While invariably in these decisions, the Pre-Trial Chamber has found that states have an obligation to transfer the accused, its approach to has changed over time. Most notably, in my opinion, the emphasis placed on the Security Council has diminished somewhat. Two 2010 decisions informed the Security Council and Assembly of States Parties of Bashir's presence in Kenya and Chad 'in order for them to take any measure they may deem appropriate'. In the controversial decisions on Bashir's travel to Malawi and Chad issued in 2011, the Pre-Trial Chamber found that the two states had failed to cooperate with the Court and ordered the Registrar to transmit the decision to the Security Council, but the 'action' proviso was missing. More recent decisions on Ethiopia and Egypt invited the states to arrest Bashir, and ordered the Registrar to communicate with the state in question, without any mention of the Security Council. A 2014 decision on the Democratic Republic of the Congo referred the decision to the Security Council pursuant to Article 87(7), but no request for action was included with the referral. In other words, the Pre-Trial Chamber has not expressly called the Security Council to act on the non-compliance of states since 2010.

We might ask, then, what the ICC's Prosecutor expects the Security Council to do. Her aim in announcing a halt to the investigations was allegedly to 'shock this Council into action'. The common position will be that the Security Council will not act because of China's close relationship with Sudan, but in my opinion, each of the possible actions pose significant legal, as well as political, problems. Let us examine each of the options in detail.

(a) The Security Council declares that there can be no Head of State immunity for international crimes

This option is obviously politically impossible, not least in the wake of the torture report issued earlier this week. For the sake of argument, however, this hypothetical would arguably not stand up to legal scrutiny either. By virtue of Article 25 of the UN Charter, states are under an obligation to carry out the decisions of the Security Council, and Article 103 states that their obligations under the Charter will prevail when there is a conflict between those obligations and their obligations under any other international agreement. This, in theory, solves the issue of the conflicting obligations of African Union member states that are also state parties to the ICC Statute. However, the 'international agreement' aspect of Article 103 of the Charter means that Charter obligations cannot automatically override contrary customary international law in the same manner. Given that the International Court of Justice has held Head of State immunity to be a principle of customary international law, this avenue would clearly be problematic.

(b) The Security Council either obliges Sudan to waive Bashir's immunity, or expressly revokes that immunity itself

The Prosecutor might hope, then, that the Security Council will demand that Sudan hands Bashir over to the ICC and/or place an obligation on UN Member States to arrest and transfer him to the ICC. Aside from the customary international law problem mentioned above, and the fact that this is likely to be ultra vires the Security Council's mandate, there are a number of additional problems raised by this approach.

First, the ICC has relied on Resolution 1593 (2005) as an existing basis for requiring action in transferring Bashir to the Court. The resolution decided that the Government of Sudan and other parties to the conflict 'shall cooperate fully with and provide any necessary assistance to the Court', and urged all states to cooperate fully, while recognising 'that States not party to the Rome Statute have no obligation under the Statute'. According to the Pre-Trial Chamber:

 By virtue of said paragraph, the SC implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State. 

Following this reasoning, there should be no need for the Security Council to take any further action in demanding cooperation from states.

Second, even if we accept the argument that SC Resolution 1593 impliedly waived Bashir's immunity, or if a later SC Resolution were to more explicitly revoke his immunity, that action by the Security Council does not relieve the ICC of its obligations under Article 98(1) of the Statute. Pursuant to that provision, the Court would need to obtain a waiver from Sudan of Bashir's immunity before it could proceed with a request for surrender or assistance.

Third, and related to the above point, such a move would challenge the independence of the ICC as an institution. Just as Security Council referrals cannot restrict the application of jurisdiction to any specified crimes or change the operation of the Statute, nor can express or implied waivers of Head of State immunity override the Court's obligations under its own Statute, particularly Article 98.

Fourth, there is clearly an issue with the discriminatory nature of any Resolution waiving the immunity of one head of state under international law, but not others. Discrimination of this sort is already found in Resolution 1593 which included (on the insistence of the United States) the following provision:

6. Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State;

As Goran Sluiter has argued, this paragraph goes against the principles of equality before the law and non-discrimination. If the case were to proceed on the basis of a Security Council Resolution that explicitly targeted Bashir, the Prosecutor could find herself in difficulty. As stated in the Celebici Trial Judgment:

 The Prosecutor, in exercising her discretion under the Statute in the investigation and indictment of accused before the Tribunal, is subject to the principle of equality before the law and to this requirement of non-discrimination.

Fifth, the obligation to cooperate with the Court is a treaty obligation, applicable only to States Parties to the Statute. Likewise, by signing up to the Rome Statute, States Parties have waived immunities for their own nationals before the ICC, by virtue of Article 27 of the Statute. If a SC Resolution were to extend such obligations to States that are not party to the Rome Statute, it risks violating the principle of pacta tertiis nec nocent nec prosunt, or that treaties cannot impose obligations upon states without their consent.

Thus, we might wonder whether the solution that the Prosecutor seeks from the Security Council can really be offered at this time. She might have been better placed to wait until after April 2015, when Bashir might no longer be the Head of State after the upcoming Sudanese elections. Regardless of the absence of any real progress in the case, we might argue that keeping the Bashir prosecution active had both a declaratory value, in that it showed that sitting Heads of State could be prosecuted by the ICC, and a practical value, insofar as it raised some difficulties for Bashir's travel to certain states. It is difficult to see what positive implications this latest move will bring for the case. 

Irish Department of Foreign Affairs announces that the Irish Government is seeking to re-open the Ireland v UK case

The Irish Government announced on Wednesday 3^rd December that they have decided to request the European Court of Human Rights to re-open the Ireland v UK case (1971-1978). Their decision was prompted by the grave revelations, exposed in the ‘The Torture Files’ by the RTE Investigations Unit that drew on material unearthed in the British National Archives. In the ‘The Torture Files’, the RTE Investigations Unit argued that new evidence could justify a re-visiting of the European Court of Human Rights judgment in the Ireland v United Kingdom case. The programme was broadcast on RTE on Wednesday 4^th June 2014. It led to calls from Amnesty International and the Sinn Féin President Gerry Adams to request the ECHR to re-open the case. Amnesty International’s Northern Ireland Programme Director Patrick Corrigan described the evidence that the British Government misled the European Commission and Court of Human Rights during the proceedings as ‘deeply worrying’. The revelations in the Torture Files were discussed in an earlier blog post.

What has happened since the broadcast was that the RTE Investigations Unit was asked to hand over its research for the broadcast to the Law firm for the ‘Hooden Men’ and to the Irish Department of Foreign Affairs. This was to form the critical mass of research for the Irish Government’s consideration of whether to request the ECHR to re-open the case and reconsider its decision on article 3 and the five techniques. It primarily consisted of research collected from the British Archives. The timeline for this request to the ECHR ran out on Thursday 4^th December. In advance of the deadline, the legal representatives of the ‘Hooden Men’ submitted an application to the Irish High Court to compel the Irish Government to make a decision. However, on Wednesday 3^rd December, the Irish Government submitted that they would request to re-open the case. Minister for Foreign Affairs Charlie Flanagan stated in a press release:

‘The Government is aware of the suffering of the individual men and of their families, of the significance of this case, and of the weight of these allegations. The archival material which underlay the RTÉ documentary was therefore taken very seriously by the Government and was subject to thorough legal analysis and advice. On the basis of the new material uncovered, it will be contended that the ill-treatment suffered by the Hooded Men should be recognised as torture. The Government’s decision was not taken lightly. As EU partners, UK and Ireland have worked together to promote human rights in many fora and during the original case, the UK did not contest before the European Court of Human Rights that a breach of Article 3 of the European Convention of Human rights took place. The British and Irish Governments have both worked hard to build stronger more trusting relations in recent years and I believe that this relationship will now stand to us as we work through the serious matters raised by these cases which have come to light in recent months’.

 Amnesty International called this ‘a triumph of justice after more than 40 years of waiting’.

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 included 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’.

Transatlantic Torture: The Senate Report, the “Hooded Men” and the Regrettable Role of the European Court of Human Rights

This is a guest post by Dr Michelle Farrell, who is a lecturer in Law in the School of Law and Social Justice at the University of Liverpool. She is the author of The Prohibition of Torture in Exceptional Circumstances (Cambridge University Press, 2013).

#Torture

Torture is back in the headlines. On 9 December, the Senate Select Committee on Intelligence released its long awaited controversial report on the use of torture in the aftermath of 11 September by the CIA. The report was over 6 years in production, runs to thousands of pages, is heavily redacted and – surprise, surprise – illustrates that – amongst other things – the methods used were ineffective, were based on fabricated claims of effectiveness and were much more brutal and were used much more extensively than was recounted. The report’s release has caused a huge stir; so far there has been plenty of commentary on the question of criminal accountability and there have been lashings of liberal outrage at the extent and methods of violence used. Many have pointed out that the contents of the report ought to come as no surprise. We knew – or suspected – a lot of this already. The report will no doubt be dissected in great detail over the coming days, weeks and years.

Bad Torture v Good Torture

Ostensible liberal democracies do not like to be called out as torture practicing states. In an effort to explain away the violence, states seek – as the Bush administration did – legal and moral cover, intellectual and popular support in the form of torture apology and justificatory rationales in the form of necessity and life-saving information extraction. Moreover, states invariably try to recast torture as something else. For the Bush administration, it was “enhanced interrogation techniques”. For the Israeli Landau Commission, it was “moderate physical pressure”. These efforts at definitional gymnastics and legal and moral justification produce a torture compliant culture.

Revisiting the UK’s use of torture

Beyond the Senate report in which the UK is implicated, the UK government and indeed the European Court of Human Rights  have a distinct – yet not unrelated – torture issue to handle. Earlier this month, on 2 December, Ireland’s Minister for Foreign Affairs, Charlie Flanagan, announced that Ireland would request the European Court of Human Rights to revisit its decision in the infamous case of Ireland v UK – a torture-centred case – decided in 1978. The decision of the Court in this case set the scene for much legal definitional wrangling over the meaning of torture. Ireland v UK was far reaching in impact and in a way that does not flatter. The decision was cited in the Bybee ‘torture’ memo and by the Landau Commission in Israel in the late 1980s to justify both states’ unconscionable interpretations of torture.

Ireland v UK was initially taken by Ireland against the UK to the European Commission on Human Rights in December 1971. It concerned the alleged breach by the UK of a number of provisions of the European Convention on Human Rights following the introduction of internment in Northern Ireland in August 1971. At the heart of the case were allegations of the use of torture and other forms of ill-treatment by British agents against a number of individuals – the so-called ‘hooded men’ - under interrogation in secret detention centres in Northern Ireland. Their torture has become known, euphemistically, as “interrogation-in-depth” or the “five techniques”. These five techniques were hooding, wall standing in a stress position, white noise, sleep deprivation and deprivation of food and water, perpetrated over a period of days and enforced through - as we now know - assaults and death threats.

Torture one day, inhuman and degrading the next

The European Commission found that the use of the “five techniques” in the interrogation of fourteen individuals amounted to torture in breach of Article 3 of the European Convention. Article 3 states simply: “No one shall be subjected to torture or to inhuman and degrading treatment or punishment.” The Commission reached this conclusion having reasoned that the techniques were deliberately employed to break the will of the individuals. Although, the Commission reasoned, the five techniques “might not necessarily cause any severe after effects”, it saw in their use “a modern system of torture”.

Following the release of the Commission’s report in 1976, the Government of Ireland had the case referred to the European Court, with a view to achieving an authoritative Court decision. The Court offered a different interpretation of the five techniques to that of the Commission. By a vote of 14 to 3, it found that, used in combination, the five techniques constituted inhuman and degrading treatment in breach of Article 3. However, the techniques did not constitute torture as “they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood”. In reaching this determination, the Court introduced the idea that there is “a special stigma” attached to torture which differentiates it from inhuman and degrading treatment.

The Torture Files

On 24 November, Amnesty International requested Ireland to reopen this case. Their request followed the unearthing of new evidence by the Pat Finucane Centre and by RTÉ, Ireland’s national broadcaster. In June 2014, RTÉ aired the Torture Files, a half hour documentary which disclosed archival material demonstrating that the British government had withheld evidence during the European Commission and Court hearings. The Torture Files also documents the experience of the fourteen men subjected to the five techniques, and it shows, sensitively and significantly, the immediate and the long-term suffering endured by the men. In one scene, the wife of one of the interrogated men, Pat Shivers, who died of cancer in 1985, remarks “even yet, I think, I wish they had killed him then. It would have saved him the horrors of having to relive that over and over again”. Her words recall those of Jean Améry, a member of the Belgian resistance, tortured by the Gestapo in 1943: “Whoever was tortured, stays tortured”.

New Disclosures

The Torture Files is not only effective in un-hooding the men, made so famous and yet anonymous by these European cases. It also demonstrates the extent of British bad faith during the proceedings. The documentary reveals that the British Government knew that the use of the five techniques produced long term psychological effects, a fact that it failed to disclose during the proceedings. In addition, the documentary exposes the extent to which the use of the five techniques constituted a political decision at the highest levels, sanctioned by then Secretary of State for Defence, Lord Carrington. At the Commission and the Court, the Government denied such responsibility.

The Troubling Role of the European Court

Whether or not this case is substantively revisited, I do think it is important to remember the damaging role played by the European Court of Human Rights in saving the UK from the “special stigma” of torture. Whilst, of course, the real crimes in all of this were committed by the British authorities and the individual perpetrators, the European Court ought not to be excused for its erroneous decision in 1978 on the basis that it did not have all the evidence, since disclosed by the Torture Files. The European Court had the same information as the Commission. The Court reached its different determination on the basis of flawed and dangerous interpretations wielded because, in the face of one of Europe’s leading and influential liberal democracies, it acted politically and spinelessly.

Perhaps it is with the benefit both of hindsight and of being far-removed from the fractious politics of the 1970s that I and others can criticise the European Court for its decision in Ireland v UK. Yet those judges exercised arrogant discretion in finding themselves capable of determining how ill-treated these men were, even if deference to the UK was the underpinning motivation. The interpretational aids dragged in to the Court to decide Ireland v UK are still in play. Torture versus other forms of ill-treatment is still – for the Court - a matter of severity of pain; it still has a ‘special stigma’. The Court has generated a confused concept of torture. The treatment of the “hooded men” was torture stricto sensu. To avoid the “bad word”, the Court downplayed inhuman and degrading treatment.  Oddly, therefore, the Court managed, by creating a special stigma for torture, to convey inhuman and degrading treatment as somehow less severe, less serious. And this was all done under the banner of human rights.

The European Court is powerless to stop torture. It does have the power to stay out of messy debates about thresholds of pain and suffering. More importantly, it has a responsibility to victims. The case was poorly and politically reasoned. It remains relevant because it has influenced global understanding of torture to date. It remains relevant because it concerned a state which has since gone on to practice torture again, in Iraq and elsewhere. And it remains relevant because it contains the kind of logic that has underpinned the whole US torture farce.  Perhaps today’s judges will have the chance to correct their predecessors.