PhD studies in human rights

Iraq Becoming Worst Death Penalty State

2012-02-02T06:01:00.000Z

Iraq executed 51 people in the month of January, including 17 in one single day. This makes Iraq the worst place on earth for capital punishment.

At that rate, Iraq is now averaging 19 executions per million population per annum. By comparison, in the most recent report of the United Nations Secretary General on the status of the death penalty, the highest rates were 3.34 for Saudi Arabia and 3.29 for Iran (see UN Doc. E/2010/10, p. 9). In that report, issued two years ago, Iraq was at 0.92.

Virtually everywhere else in the world, including notably the United States and China, the death penalty is in sharp decline. Pakistan, for example, once an important practitioner of capital punishment, appears to have stopped altogether. Major declines are expected in the Arab countries that have been touched by the so-called ‘Arab spring’. The exception is this little knot of countries in the Middle East – Iraq, Iran, Saudi Arabia and Kuwait.

I suppose this is the democratic dividend that Rumsfeld, Bush and Blair were going to bring to the region when they invaded Iraq in 2003.

Does the Prosecutor Only Investigate Incriminating Evidence?

2012-02-01T14:54:00.001Z

In preparation for a talk I am delivering at Regent’s University in London on the Arab Spring and the International Criminal Court, I have been reviewing statements by the Office of the Prosecutor concerning the Situation in Libya. In the presentation by Prosecutor Moreno-Ocampo to the Security Council, on 2 November 2011, he said:

The current focus of the investigations is twofold. First, it continues the collection of evidence against Saif Al-Islam Al-Qadhafi and Abdullah Al-Senussi in preparation for their eventual trial… (See S/PV.6647, p 3).

The Prosecutor's claim that he is collecting evidence against the two accused should be set alongside article 54(2) of the Rome Statute, which says:

1. The Prosecutor shall:
(a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally;

Is the Prosecutor’s statement merely careless use of language, or does it actually indicate his perspective on the cases?

Mugesera is Now in Rwanda

2012-01-30T12:30:00.000Z

Leon Mugesera has been returned to Rwanda where he can be expected to stand trial for incitement to genocide. His final procedural gasps succeeded on very temporarily in resisting transfer from Canada.
This is the third important recent development regarding transfer or return of genocide suspects to Rwanda to stand trial. In earlier postings on this blog, reference has been made to recent rulings of the Appeals Chamber of the International Criminal Tribunal for Rwanda and of the European Court of Human Rights, both of them favourable to such transfers.
Now, Rwanda faces a great challenge. It must ensure that the accused persons receive fair trials.
Great efforts have gone into building a justice system in Rwanda that is capable of ensuring this. Compared with the justice system I saw when I first visited Rwanda in January 1993, the progress is absolutely incredible. But that doesn't make the challenge any less daunting at this point.
If Rwanda succeeds, it will represent a very important milestone in the delivery of justice and in the struggle against impunity. It needs all of the support and encouragement we can provide at this point.

Thoughts on the Kenya Confirmation Decisions

2012-01-30T12:23:00.000Z

Last week, Pre-Trial Chamber of the International Criminal Court II issued two decisions in the cases concerning the post-election violence that took place in Kenya in 2008. These decisions ruling on the confirmation of the charges, which is a pre-trial stage in the proceedings governed by article 61 of the Rome Statute. The Pre-Trial Chamber must decide whether there are “substantial grounds” supporting the allegations of the Prosecutor, failing which it does not allow the case to proceed to trial.

In the recent decisions, which concerned six individuals, two of the accused were successful while the other four are set over for trial. Some or all of them may seek permission to appeal the decisions.

A Low Score for the Prosecutor

Succeeding with only four of six accused at this preliminary stage, where the Prosecutor must demonstrate “substantial grounds” but need not satisfy a burden of proof of “preponderance of evidence”, let alone “beyond a reasonable doubt”, is not very impressive. The Prosecutor should be able to assess weak cases before they get to this stage.

In total, four cases have been rejected by the Pre-Trial Chambers at the stage of the confirmation hearing (in addition to the two last week, Abu Garda (Sudan) and Mbarushimana (DRC)). Overall, some fourteen suspects have been subject to confirmation hearings. A score of 10 out of 14 is not very impressive. That’s a failure rate of 29%.

Comparisons with the performance of the ad hoc tribunals are useful in assessing the performance of the Prosecutor of the International Criminal Court. There is no equivalent procedural stage, which might lead one to conclude that the weak cases have to wait to the trial stage to get filtered out. The closest that the ad hoc tribunals come to anything equivalent is the defence motion to dismiss that occurs at the close of the prosecution’s case. Indeed, the Prosecutor of the International Criminal Court has made the same analogy (see para. 68 of Muthaura et al. decision). Dismissal of charges at this stage of the proceedings by the ad hoc tribunals is virtually unknown.

We might expect to see a rate of acquittal at the ad hoc tribunals comparable to the rate of rejection at the confirmation hearing stage. Following this reasoning, the acquittal rate at the ad hoc tribunals should be even higher than 29%, given that at trial the defence need only raise a reasonable doubt, and is in a position to fully challenge the prosecution’s evidence.

But this is not what we see at the International Criminal Tribunal for the former Yugoslavia. By my count, there have been final judgments in 94 cases. Only 13 of these have been acquittals. That is a failure rate for the Prosecutor of the Yugoslavia tribunal of 14%, less than half the equivalent statistic for the confirmation hearing stage at the International Criminal Court.

The Prosecutor of the International Criminal Court may feel that the judges of the Pre-Trial Chamber are too demanding. But all they seem to be doing is weeding out the cases that will lead to acquittals at trial, and it is hard to argue with that. The problem seems to be with the Prosecutor, who is not discerning enough with the cases with which he chooses to proceed. Such a high rate of dismissal of charges at the confirmation hearing stage has many negative consequences, among them: it wastes the time and resources of the Court; it creates false hopes for victims; it causes injustice to the individual accused, who may spend considerable time in custody or otherwise in jeopardy with respect to charges that ultimately are not substantial enough to justify a trial.

The role of defence evidence

In the two Kenya cases, defence counsel produced a very significant amount of evidence in order to challenge the charges. They relied upon article 61(6) entitles the defence to ‘Challenge the evidence presented by the Prosecutor’ and ‘Present evidence’.

The Prosecutor takes the position that the Pre-Trial Chamber is to accept the prosecution evidence tendered at the stage of the confirmation hearing as long as it is relevant. ‘It should avoid attempting to resolve contradictions between the Prosecution and Defence evidence, because such resolution is impossible without a full airing of the evidence from both sides and a careful weighing and evaluation of the credibility of the witnesses. That will occur at trial.’ (See para. 67 of Muthaura et al. decision).

If this is indeed the position, it is difficult to understand the interest that the defence would have in producing any evidence at all. There might be occasional cases where the defence would want to put testimony on the record, perhaps out of concern that a witness would die or be otherwise unavailable at trial. But this would be very much the exception rather than the rule.

In the Kenya decisions, the judges reject the Prosecutor’s submission. They say that they undertake a “free assessment of the evidence” regardless of the party that submits it. At various points in the lengthy ruling they consider the evidence submitted by the defence but, in general, it is rejected in favour of the Prosecutor’s evidence.

What is the standard of proof here? On the one hand, according to the Statute the Prosecutor is required to establish “substantial grounds” rather than proof “beyond a reasonable doubt”, which is the standard at the trial stage. But what does that mean for the defence evidence? Presumably it is not enough for the defence to raise a reasonable doubt. In order to succeed at the confirmation hearing, must it succeed in challenging the prosecution evidence on a preponderance of evidence standard? Or must the defence establish its case “beyond a reasonable doubt”? It is unfortunate that the decisions do not provide much clarity here.

The defence evidence is rejected, but we do not entirely understand whether it is because the judges had doubts about its reliability or its relevance, or because it was overpowered by the Prosecutor’s evidence. Apparently, the Prosecutor did not produce any live witnesses and relied entirely upon statements, whereas the defence brought many witnesses to the confirmation hearing. Is the issue of the “quality” of the witnesses irrelevant here?

Perhaps the judges are trying to send a quiet message to the defence that they should not waste their time submitting evidence at the confirmation hearing unless it is truly overpowering. There is a danger that if they open the door too widely to defence evidence at the confirmation hearing, this will force the Prosecutor to produce more evidence as well, and then what should have been a rather brief preliminary proceeding will turn into a miniature trial.

There are probably too many different standards of proof in the Rome Statute. The lowest is the “reasonable basis” standard for authorization of an investigation (art. 15). Then we go to “reasonable grounds” for issuance of an arrest warrant (art. 58) followed by “substantial grounds” at the confirmation hearing and “beyond a reasonable doubt” at trial (art. 66). How can these be distinguished. Well, a “reasonable basis” is lower than “reasonable grounds”. “Substantial grounds” are higher than “reasonable grounds”. It is all very arcane. The lower standards of “reasonable basis” and “reasonable grounds” seem to work because they are applied in uncontested or ex parte proceedings. But at the confirmation hearing, where there may be a robust defence, the mystery of what this standard consists of becomes more serious.

The confirmation hearing is an unprecedented proceeding within the international criminal justice system. The defence is entitled to better guidance as to the value of producing evidence, and the standard it must meet in order to rebuff the prosecution.

Judge Kaul’s Dissent

As in previous Kenya decisions, Judge Hans-Peter Kaul dissents. His main difficulty with the cases has been expressed in earlier rulings. He considers that crimes against humanity require a nexus with State policy, and he interprets the reference to “State or organizational policy” in article 7(2)(a) of the Statute accordingly. It is a view with which several academic commentators including myself are in agreement.

There are some interesting thoughts in Judge Kaul’s latest dissent about prosecutorial policy. In particular, he refers to the statement issued by the Prosecutor in 2006 announcing his decision not to proceed with an investigation in Venezuela. To my knowledge, this may be the first time that a judge of the Court has considered the overall policy of the Prosecutor by comparing cases that are actually underway with those where the Prosecutor has chosen to do nothing.

Young Penalists Course in Siracusa

2012-01-23T06:09:00.000Z

The International Institute of Higher Studies in Criminal Sciences is holding its 12th Specialization Course in International Criminal Law for Young Penalists on "Assessing Patterns of Transnational
Organized Crime, the International Criminal Responsibility of Non-State Actors, and the Effectiveness of the International Enforcement System". The course will take place from May 20th to May 30th and is open to all international graduate law students. It is held in Siracusa, Italy, in beautiful Sicily.
The deadline for application submissions is March 25th, 2012. ISISC will select 60 participants who should have at a minimum a first degree in law, having graduated in the last eight years (between 2004 - 2012), and be 35 years of age or under. Furthermore, the Institute will offer 10 scholarships to applicants from Developing and Less Developed Countries.
All relevant information and the application form are available here. (www.isisc.org). Please do not hesitate to contact ISISC for any questions or concerns you may have at icl-2012@isisc.org.

A Nasty Judgment from the European Court of Human Rights in a refoulement case

2012-01-18T08:20:00.000Z

Yesterday, the European Court of Human Rights dismissed an application by two individuals, Harkins and Edwards, who were resisting extradition to the United States. The issue of the death penalty was relatively secondary, because diplomatic assurances had been given by the Americans authorities and the Chamber considered these to be satisfactory, enjoying a presumption of good faith.

The heart of the case was the threat that the two men would face a mandatory sentence of life imprisonment without any hope of release on parole if convicted upon return to the United States. In the trade, this is called ‘LWOP’ (‘life without parole’).

Agreeing that this was a very plausible outcome, particularly in the Harkins case, the unanimous Chamber said it was

prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention (Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 73 above), it will only be on “rare and unique occasions” that the test will be met. (para. 133).

According to the Chamber,

193. … the Court notes that he faces a mandatory sentence of life imprisonment without parole, which, as it has indicated, requires greater scrutiny than other forms of life sentence. However, the Court is not persuaded that such a sentence would be grossly disproportionate in his case. Although he was twenty years of age at the time of the alleged offence, he was not a minor. Article 37(a) of the United Nations Convention on the Rights of the Child demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is under the age of eighteen. It would support the view that a sentence imposed on such a defendant would be grossly disproportionate. However, the Court is not persuaded that Article 37(a) demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is over the age of eighteen. Equally, although the applicant has provided a psychiatrist’s report showing him to be suffering from mental health problems, as the Government have observed, that report stops short of diagnosing the applicant with a psychiatric disorder. Therefore, while the Court accepts that the applicant has some mitigating factors, it is not persuaded that the applicant possesses mitigating factors which would indicate a significantly lower level of culpability on his part.
The Court accepts that the sentence which the first applicant faces would be unlikely to be passed for a similar offence committed in the United Kingdom, particularly when there is no felony murder rule in England and Wales. The Court also notes that the Supreme Court of Canada, in Martineau, has found that the rule is contrary to the fundamental principles of justice. Therefore, the Court would not exclude that a sentence imposed after conviction under the felony murder rule could, in a sufficiently exceptional case, amount to a grossly disproportionate sentence. This would be particularly so if the sentence was one of mandatory life imprisonment without parole but the facts of the case involved a killing in respect of which there was no real culpability on the part of the defendant.
140. Second, as the Court has stated, an Article 3 issue will only arise when it can be shown: (i) that the first applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) his sentence is irreducible de facto and de iure. The first applicant has not yet been convicted, still less begun serving his sentence (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010). The Court therefore considers that he has not shown that, upon extradition, his incarceration in the United States would not serve any legitimate penological purpose. Indeed, if he is convicted and given a mandatory life sentence, it may well be that, as the Government have submitted, the point at which his continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the Governor of Florida and the Board of Executive Clemency would refuse to avail themselves of their power to commute the applicant’s sentence (see paragraph 52 above and Kafkaris, cited above, § 98).
Accordingly, the Court does not find that the first applicant has demonstrated that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.

In a general sense, the Court took the view that issues of disproportionate sentencing do not arise at the moment the sentence is imposed, but much later, when it can be shown that there is no longer any valid penological purpose to continued detention. The problem in an extradition case is that the European Court of Human Rights will no longer be available once the applicants are back in the United States.

The decision includes a discussion of the distinction between inhuman treatment and torture. The Court revisits this old issue, and finds that in the context of extraterritorial application of the Convention the distinction is not of much significance.

The right-wing press in the United Kingdom are ecstatic about this decision, a change from the general pattern of harsh attacks on the European Court

David Scheffer : All The Missing Souls

2012-01-15T11:06:00.000Z

I’ve been meaning to write about David Scheffer’s book All the Missing Souls since it was issued late last year.

Yesterday’s very favourable book review in the Financial Times by Philippe Sands brings it to the attention of readers here in the UK, and internationally, and prompts me to comment after an unusually lengthy winter break this year.

As would be expected, Philippe Sands is critical of the US policy, but he is also full of respect for David Scheffer’s account. As the first Ambassador at large for War Crimes Issues, David Scheffer was literally at the centre of what is the most fertile period in the development of international criminal law since the Nuremberg Trial. For that reason alone, his book demands attention.

It is full of anecdote, of course, but also a tremendous amount of substance. Since leaving the administration, in January 2001, Professor Scheffer has developed an impressive academic profile. He is a prolific writer on criminal justice topics. His insights into the dynamics of the evolving US policy in international criminal justice are invaluable.

Amongst the many textbooks in international criminal law, David Scheffer’s book is refreshingly different. It makes good reading for specialists and for students, yet it is also highly accessible to a broad public. This is a must acquisition for the international criminal law bookshelf.

BS Watch

2012-01-15T11:02:00.000Z

Readers of the blog may have seen, from time to time, reference to scurrilous attacks from the blog named ‘UN Watch’. On Friday, its headline story noted the third anniversary of the Goldstone Report, the colloquial label given to the report of the Commission of Inquiry into the Gaza war.

It gloats over what it calls the retraction by Richard Goldstone of ‘The core charges of the report—that Israel's leadership intentionally plotted to murder Palestinian civilians, and did so from racist motives’. But they were not the 'core charges'. They were actually very secondary and marginal charges in the report, and to my knowledge the only ones on which Richard Goldstone has changed his mind.

The real core charge is that Israel pursued a strategy that it had developed in Lebanon in 2006 of massive destruction of the civilian infrastructure. The goal was to punish the Palestinians in Gaza for their support of Hamas. I don’t think anyone has come up with a good argument against this conclusion of the report. I suspect that UN Watch would agree that this was the policy being pursued by the Israeli military in Gaza. Probably UN Watch supports such a policy.

Friday’s blog continues: ‘Overnight, anti-Israel intellectuals who had hailed Goldstone as a modern-day saint turned on him with a vengeance, especially those uneasy with their Jewish ancestry, such as Roger Cohen, Richard Falk and William Schabas.’

First, I have never turned on my good friend Richard Goldstone, ‘with a vengeance' or otherwise. I am not ‘anti-Israel’, although I obviously cannot support many of its government’s policies and actions. Nor am I commonly attacked for my Jewish ancestry, with which I am comfortable and proud. Anti-Semitism crops up in unexpected places.

Mugesera Case: Yet Another Twist in the Debate about the Rwandan Justice System

2012-01-15T10:58:00.001Z

To anyone who has followed the recent history of Rwanda, and particularly those familiar with the case law of the International Criminal Tribunal for Rwanda, the name Leon Mugesera will be well-known. His role in fomenting the climate of anti-Tutsi hatred that led to the 1994 genocide is discussed in several of the judgments, notably the first major ruling of the Tribunal in the Akayesu case.

This is from paragraph 99 of the Akayesu judgment:

…there were other propaganda agents, the most notorious of whom was a certain Léon Mugesera, vice-president of the MRND in Gisenyi Préfecture and lecturer at the National University of Rwanda, who published two pamphlets accusing the Tutsi of planning a genocide of the Hutu. During an MRND meeting in November 1992, the same Léon Mugesera called for the extermination of the Tutsi and the assassination of Hutu opposed to the President. He made reference to the idea that the Tutsi allegedly came from Ethiopia and, hence, that after they had been killed, they should be thrown into the Rwandan tributaries of the Nile, so that they should return to where they are supposed to have come from. He exhorted his listeners to avoid the error of earlier massacres during which some Tutsi, particularly children, were spared. (references omitted).

Mugesera fled Rwanda prior to the genocide. Through a network of friends and allies, he made his way to Canada and successfully obtained resident status. In 1994, the Canadian government began proceedings to remove him from the country.

There was a long series of decision by immigration courts, culminating in an appeal to the Supreme Court of Canada, that he lost.

In the meantime, he initiated some litigation of his own, amongst other things suing the editor of this blog for defamation, a case he soon chose to abandon once he realised the energy that the lawyers of my former University in Montreal were prepared to devote to fighting the frivolous complaint.

Since the 2005 judgment of the Supreme Court, he has exhausted the remaining procedures available under Canadian law. Finally, after nearly 17 years, the end of his stay in Canada seems to be near.

The arguments about the alleged innocence of his remarks and the purported honesty of his refugee claim have now been rejected decisively and he has no more arguments in that area. His final challenge involves an attack on the Rwanda justice system. Mugesera claims that if returned to Rwanda, as the Canadian government now plans, he will be exposed to serious human rights violations.

This has been a familiar debate in recent years, with a number of related cases before national courts in Europe as well as the so-called Rule 11bis transfer decisions by the International Criminal Tribunal for Rwanda.

It seems that the tide has largely turned. Recently, the European Court of Human Rights rejected a complaint by a Rwandan who argued that if he were to be sent back by Sweden this would constitute refoulement contrary to the European Convention on Human Rights. Also last year, a Trial Chamber of the International Criminal Tribunal for Rwanda declared that improvements in the Rwandan justice system mean it was now acceptable for cases to be transferred there.

A Canadian immigration tribunal reached the same decision in early December, and it was on that basis that the proceedings to remove Mugesera in early January were undertaken.

Last week, a final attempt by Mugesera before the Federal Court of Canada was dismissed.

Then, the United Nations Committee Against Torture intervened with a provisional measures request to the Canadian government asking that deportation be suspended until the Committee can consider the merits. And a judge of the Quebec Superior Court granted a one-week interim injunction against the government.
For some accounts on the case by Canadian-based academics, see Rob Currie's blog and the posting on it by Fannie Lafontaine.

Canadian public opinion (not to mention Rwandan public opinion) is frustrated by these delays and cannot understand why the proceedings were so protracted. In particular, newspaper editorials have been encouraging the government not to follow the provisional measures request by the Committee Against Torture. See the Globe and Mail and the Montreal Gazette.

Canadian officials have defied such requests in the past, and it will be unfortunate if the legal authority of the Committee Against Torture is further tarnished by the whole business.

Mugesera sued me back in 1997 because I said then that he should be sent back to Rwanda to answer the charges against him. When the University lawyers studied the tapes of my interviews and comments, they noted that I had consistently stated that Mugesera was presumed innocent, but that he should be put on trial in Rwanda for the serious charges against him. I haven’t changed my position by one iota.

I think his days in Canada are clearly nearing an end, although in this case one has learned to be prepared for the unexpected. We are still waiting for the Appeals Chamber of the International Criminal Tribunal for Rwanda to rule definitively on the transfer cases. Eventually, and hopefully sooner rather than later, Rwanda will be given a real opportunity to demonstrate that it can deliver fair trials. If it succeeds, an important chapter in attempts to address the 1994 genocide will be closed.

***

A postscript. In another Rwanda-related development, last week a French commission of inquiry into the famous plane crash which marks the starting point of the genocide concluded that the rocket that fired the missile came from the government military base close to Kigali airport. The report largely discredits the findings of French judge Jean-Louis Bruguière, who had promoted the thesis that the plane was shot down by RPF forces under orders from Paul Kagame. With last week’s report, that theory has lost a huge amount of traction. The Bruguière report, which was often cited by genocide deniers, is now largely discredited, and by an authoritative report from France itself.

See Linda Melvern’s column on this in The Guardian.

International Criminal Justice and its Relationship with National Courts

2011-12-29T09:36:00.000Z

Two recent developments highlight some of the interesting relationships between international criminal justice institutions and national legal systems.

Yesterday, a Dutch Court ruled that three witnesses who had travelled to The Hague to testify in the Katanga trial have the right to apply for refugee status in the Netherlands. The ruling reverses an earlier decision made by the Dutch Immigration and Naturalization Service but confirms decisions issued by the Trial Chamber of the International Criminal Court released a few months ago and discussed on this blog.

Meanwhile, in Paris, the French government has refused to cooperate with the International Criminal Tribunal for the former Yugoslavia in its attempts to arrest Florence Hartmann, who has been convicted of contempt of court. The French authorities took the view that they are required by virtue of the Security Council resolution to cooperate in apprehending persons suspected of committing international crimes but that they have no duty as regards administrative matters like contempt. As permanent members of the Security Council and therefore godfathers of the Tribunal, I suppose they ought to know.

According to the New York Times, a spokesman for the Foreign Ministry in Paris, said that it would be impossible for France to fulfill the request because judicial agreements between France and the Tribunal do not apply to offenses sich as contempt of court.

What is the next step? I suppose the Tribunal should report France to the Security Council for non-compliance. I wonder what will happen then.

Obama, Medvedev and Hu Jintao may be Prosecuted by International Criminal Court, Pre-Trial Chamber Concludes

2011-12-15T12:21:00.000Z

Pre-Trial Chamber I of the International Criminal Court issued a ruling earlier this week that has the consequence of stripping Obama, Medvedev and Hu Jintao of their immunity before the Court. This would mean, for example, that charges could be introduced against President Obama for the conduct of US forces in Afghanistan (which is a State Party to the Rome Statute) in the same way as they have been introduced against President Bashir for the conduct of Sudanese forces in Darfur (where jurisdiction results from a Security Council).

The decision does not of course mention Obama, Medvedev and Hu Jintao. It concerns the possible immunity of President Bashir.

Over seven pages, in a decision condemning Malawi for its failure to arrest Bashir, the Pre-Trial Chamber reviews a number of authorities. The decision reads like a lawyer’s brief, in that it is entirely one-sided. The Chamber does not address the difficulties or the arguments that go against its position. This is regrettable, but perhaps to be expected when it is a decision is issued in the absence of representations from the defence. Can it be a wise practice for the Pre-Trial Chamber to attempt to address serious and difficult matters of international law in the absence of detailed argument. Under such circumstances, shouldn’t a Chamber at least make an effort to confront the inconvenient arguments that stand in its way.

For example, it reaches the rather trite conclusion that there can be no immunity of a head of state before an ‘international tribunal’. But nowhere does it define an international tribunal or suggest how one is to be identified. It may well be that there are various types of international tribunal, and that rules of immunity apply differently depending upon the type of tribunal. In the famous Arrest Warrant case, the International Court of Justice said that immunity would not be available before ‘certain international criminal courts, where they have jurisdiction’. By implication, the International Court of Justice was saying that immunity would remain before ‘certain international criminal courts’. The Pre-Trial Chamber’s statement is much more absolute.

The issue of immunity was already addressed by the Pre-Trial Chamber that issued the arrest warrant against Bashir in March 2009. It is not apparent why this differently constituted Pre-Trial Chamber felt compelled to issue a new opinion, presenting the matter somewhat differently. Perhaps, in another year, yet another Pre-Trial Chamber, with different members, will issue yet another ex parte decision on the matter.

The legal argument of the Pre-Trial Chamber this time around is not very compelling. It cites authority from the 1919 Commission on Responsibilities but without noting that this was not the position taken by the Paris Peace Conference and is not reflected in the Treaty of Versailles. The Treaty of Versailles does indeed propose to try the German Emperor, in art. 227, but with the consent of Germany. That is why it is in the Treaty. If Germany’s consent were no required for the victors to try its head of state, then the proposed international tribunal would have been found in a separate agreement between the victors alone.

Then the Pre-Trial Chamber turns to the post-second world war tribunals. The citations do not refer to the issue of head of state immunity but rather to the defence of official capacity. There is a distinction. This can be seen in the Rome Statute itself, where article 27(1) deals with official capacity and article 27(2) deals with immunity.

I could go on. This is a complicated question. Much has been written. The Chamber does not refer to any of the thoughtful academic contributions on this subject, by scholars like Dapo Akande and Paola Gaeta.

There is an argument – although it is not without its own problems – by which there is no immunity for the likes of Bashir before the International Criminal Court because this is implied by the Security Council resolution referring Sudan to the Court. That, at least, is a more nuanced and subtle proposition. It would mean that Obama, Medvedev and Hu would continue to enjoy immunity from the Court except in the unlikely event of a Security Council referral that concerned them. In the final sentence of its opinion, the Pre-Trial Chamber notes that jurisdiction results from a Security Council referral, but it does not indicate why this might be significant.

But the Pre-Trial Chamber has gone much further in this recent ruling. Indeed, it seems to take the position that there is no immunity given that the International Criminal Court is an international tribunal. Presumably therefore article 27(2) is entirely superfluous.

Authority cited by the Pre-Trial Chamber includes some simplistic rulings from the ad hoc tribunals. But the ad hoc tribunals can claim to have been the offspring of the Security Council. Immunity would not be applicable there because the Tribunal is not created by a State but rather by the international community acting collectively.

The reason that the same analysis cannot apply to the International Criminal Court is that it is created by the 120 States Parties. The International Criminal Court is a treaty-based court. In principle, the Rome Statute can only bind member states. Article 27(2) removes immunities from heads of state. This only applies to heads of state of States Parties and cannot be invoked against heads of state of non-party States.

Some will argue that with 120 States Parties, the Court has reached a critical mass whereby it can really claim a degree of universality. This is not too convincing an argument either. The Court may have more than half the States in the world, but it does not represent half the population of the world. Vanuatu (population 250,000), the latest State to join the Court, did not make much impact in this respect.

If there is no immunity before any international criminal court, as the Pre-Trial Chamber seems to hold, would it be possible for Nauru, Monaco, Andorra, Taiwan and the Palestinian Authority to join together and create an international criminal tribunal where the President of the United States would be stripped of the immunity that he would otherwise possess before the national courts of those countries?

The immunity of heads of states results from customary international law. They cannot be deprived of it because other States so decide, whether they do this by their domestic law or by treaty. It is precisely for that reason that article 27(2) was included in the Statute. In the absence of article 27(2), even States Parties would be able to invoke immunity.

It would be very interesting to hear the position of the United States, Russia and China on this point, because it concerns them and their heads of State. In the 2005 report on Darfur, the late Antonio Cassese suggested that rulings by international criminal tribunals on points of law that are not subsequently contested by States may become accepted as custom. So it might be useful for the big powers that have not joined the Court to make their views on this known. I suspect that they agree with Bashir, and not with the Pre-Trial Chamber.

For more on this, see also Dov Jacob's blog.

Africa, Fatou Bensouda and the International Criminal Court

2011-12-13T16:00:00.000Z

Warmest congratulations to Fatou Bensouda, of The Gambia, who has just been elected Prosecutor of the International Criminal Court. This is a stellar achievement for Ms Bensouda, who has many years of experience in international criminal justice, including eight as Deputy-Prosecutor of the Court itself.

Her election is being heralded as a gesture of reconciliation to African states by the Court. Certainly, she will be able to articulate the Court’s policies and speak to the people of Africa in a sensitive and appropriate way, something that regrettably cannot be said of her predecessor, Luis Moreno-Ocampo. Her comments always seem to be measured and thoughtful. Above all, those to whom she speaks sense that she respects them and takes their own views and sensitivities into account.

African States initially welcomed the Court, and ratified the Rome Statute in large, impressive numbers. But in more recent years, Africa has turned lukewarm towards the institution. This is sometimes explained by the Court’s exclusive focus on conflicts in Africa. But Africans were keen on the Court precisely because they expected it to address their own troubled situations, and it never made sense that they would dislike the Court because it had too many African cases.

The root of the problem is not an obsession with Africa but rather a slow but perceptive shift of the Court away from the apparent independence shown in its early years towards a rather compliant relationship with the Security Council and the great powers.

The strategic choices made by the Prosecutor placed it within the comfort zone of the United States and its close allies. And as the Court increasingly looked like a piece of the larger international system, dominated as it is by powerful states from the North, Africa’s ardour for the institution has waned.

For example, when challenged by the peace and justice dialectic, the Prosecutor has suggested that while justice is the responsibility of the Court, peace falls to the Security Council. The African Union indicated its discontent with this perspective by a proposed amendment to the Rome Statute acknowledging a role for the General Assembly, where Africa’s role is more entrenched than in the Security Council, which has no permanent African members. The amendment was not realistic, but it underscored the problem. It is better for the Court to offer a comprehensive answer that balances peace and justice rather than to suggest it is part of a tag team, where the other player is the Security Council.

All of this is to say that while Fatou Bensouda will undoubtedly be a much better interlocutor with African States than Luis Moreno-Ocampo, the rift can only be healed by changes in policy. She (and the Court) will only regain the confidence of African states by courageous policy decisions. She deserves all of our encouragement in this difficult challenge.

There is an interesting discussion of her appointment on Al Jazeera that includes our own eloquent Joseph Powderly, a doctoral student at the Irish Centre for Human Rights and now a young professor at Leiden University in The Hague.

Call for Papers for the Jus Post Bellum Project Launch Conference

2011-12-13T11:28:00.000Z

The Jus Post Bellum Project at the Grotius Centre for International Legal Studies at Leiden University has issued a call for papers for the Project's launch conference. The conference, entitled "'Jus-Post-Bellum': Mapping the normative foundations," will be held 31 May and 1 June 2012, in The Hague. The organizers describe the Project as follows:

The proper ending of conflict and the organization of post‐conflict peace is one of the greatest challenges of contemporary warfare. This issue has resurfaced in the context of modern interventions and their aftermath. The Grotius Centre for International Legal Studies’ Jus Post Bellum Project investigates whether and how a contemporary jus post bellum may facilitate greater fairness and sustainability in conflict termination and peacemaking. It seeks to establish the historical and normative foundations of a modern jus post bellum, including its relationship to jus ad bellum and jus in bello. The project seeks to identify the contours, operation, and impact of this concept, based on analysis of historical peace settlements, contemporary peace agreements and case‐studies. In addition, the project seeks to develop a catalogue of rules and principles of post‐conflict peace in order to guide priorities and policy choices in a number of key areas: conflict termination and ending of conflict, the interplay between international humanitarian law and human rights law in post‐conflict settings, the balance between “local ownership” and foreign authority, reconstruction and rule of law reform, the treatment of individual criminal responsibility in peace settlements, and the allocation of property rights.

The organizers particularly seek papers, to be presented at the conference and considered for publication in a conference volume, that fall within these three issue areas:

► Conflict termination and the definition of "post"
► Modern conflicts and the definition of "bellum"
► Which law applies to the transition to peace -- the "jus" in jus post bellum
English-language abstracts of no more than 300 words, plus CV, should be submitted no later than Friday 13 January 2012, to jpb@cdh.leidenuniv.nl.
The full call for papers is here. http://juspostbellum.com/resources/1/Launch%20Conference%20Call%20for%20Papers%20FINAL.pdf

Student Conference on Lubanga Trial: Call for Papers

2011-12-13T11:24:00.000Z

The International Criminal Court Student Network (ICCSN) invites submissions for its 2012 Hague Conference: The Lubanga Trial: Lessons Learned, March 8-9, 2012, Den Haag Netherlands This conference offers undergraduate, graduate and law students, and early professionals/academics (generally within five years of terminal degree) studying or working in the field of International Criminal Law an opportunity to both present and discuss their research. Submissions should be focused on the Lubanga Trial or the International Criminal Court. Invited speakers will be asked to prepare comments or a paper. A number of papers will be selected for publication in the ICCSN's journal, Issues in International Criminal Justice. Full details are available at the conference website: http://www.iccsn.com/lubanga

Dr Wibke Timmermann

2011-12-07T11:55:00.000Z

From left, Ludo Hennebel, Wibke Timmermann, myself and Kathleen Cavanaugh.

Wibke Timmermann successfully defended her doctoral thesis in Galway on Monday. The thesis is entitled: 'Hate Speech and Incitmement in International Criminal Law'. Dr Ludovic Hennebel, of the Centre Perelman de Philosophie du Droit at the Université Libre de Bruxelles was the internal examiner, and Dr Kathleen Cavanaugh was the internal examiner. Congratulations, Wibke, on this great acheivement. I believe this is the tenth doctorate completed successfully at the Irish Centre for Human Rights in 2011.

New Warrant for Darfur, but Where is the Genocide Charge?

2011-12-07T11:40:00.002Z

The Prosecutor of the International Criminal Court has applied for an arrest warrant against thecurrent Sudanese Defence Minister, Abdelrahim Mohamed Hussein, for crimes against humanity ande war crimes. According to the presss release from the Office of the Prosecutor:

The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.
In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein. “The evidence shows that this was a state policy supervised by Mr. Hussein to ensure the coordination of attacks against civilians”, said Moreno-Ocampo.
“Moreover, the evidence shows that directly and through Mr. Harun, Mr. Hussein played a central role in coordinating the crimes, including in recruiting, mobilizing, funding, arming, training and the deployment of the Militia/Janjaweed as part of the Government of the Sudan forces, with the knowledge that these forces would commit the crimes,” said the Prosecutor.

Where is the genocide charge? In the case of President Bashir, the Prosecutor went on appeal when the Pre-Trial Chamber refused to authorize a charge of genocide. I have heard him lecture about ‘the ongoing genocide by attrition’ that continued until 2008 or 2009. For all I know, the Prosecutor thinks that genocide is still going on. How is it that there is an ongoing genocide but that the Minister of Defence does not seem to be involved? After all, the charges against Bashir were essentially based on the idea that as President of the country, he was responsible for the attacks. So why are the attacks genocidal for Bashir but not for Hussein?

The whole business smacks of incoherence. When he applied for the arrest warrant against Bashir, the Prosecutor spoke of Bashir’s orders to commit genocidfe, and said: ‘The attacks on villages across Darfur from March 2003 to the present were designed to kill members of the targeted groups and force the survivors from their lands, but also to destroy the very means of survival of the groups as such as described in paragraph 15 above.’ Aren’t these the facts that Hussein is charged with too?

I would make another observation about the recent statement by the Office of the Prosecutor. I do not think that Pre-Trial Chamber I ‘ruled that Local Security Committees coordinated these attacks’. All that the Pre-Trial Chamber did was confirm that there were ‘reasonable grounds’ for the Prosecutor’s allegations, which is not at all the same thing. It is a big mistake to describe such rulings of a Pre-Trial Chamber, made ex parte (that is, without hearing the defence) and on the basis of unchallenged evidence, a ruling on a factual issue. Those who write the press releases in the Office of the Prosecutor might exercise a bit more caution.

China and the Death Penalty: Signs of Progress

2011-12-04T16:26:00.001Z

I’m just back from a visit to China where I participated in an important seminar on reform of the death penalty. It was jointly sponsored by the Chinese Ministry of Foreign Affairs and the Office of the High Commissioner for Human Rights. There were about 30 people in attendance, including the leading specialists on the subject in China from the universities, the National People’s Congress, the Supreme People’s Court, prosecutors and defence counsel. The United Nations brought three experts, Roger Hood of Oxford University, Hans-Jörg Albrecht of the Max Planck Institute and myself.

One after another, the Chinese specialists took the floor to affirm their commitment to the reform and the eventual abolition of the death penalty. We discussed many of the features of the imposition of capital punishment in China.

There have been some significant reforms in death penalty practice in recent years. In 2007, review of death sentences by higher courts became mandatory. In 2011, 13 crimes for which the death penalty could be imposed were repealed, and a prohibition on executing persons over 75 was adopted.

Notoriously, China does not issue statistics on the number of executions that are carried out. We have been told over and over again that this is a ‘state secret’. Frustrated by this unacceptable situation, Amnesty International has decided to stop even speculating on the number of executions. It says simply that China’s executions number in ‘thousands’, and that China accounts for more death sentences than the rest of the world put together.

Nevertheless, our interlocutors at the seminar insisted that the total number of death sentences has dropped as a result of the 2007 reforms by approximately 50%. If that is true – and I have no reason to doubt what the Chinese scholars tell us – then China has made very significant progress in recent years. We were also told that the Supreme People’s Court now grants about 10% of the death penalty appeals that it hears. That figure is not inconsistent with the 50% reduction, and probably reflects the fact that the more questionable death sentences are now eliminated by the lower courts before they even get to the highest appellate level.

The repeal of the death penalty provisions for 13 crimes earlier this year seemed to concern rather obscure offences, and my impression is that this did not contribute in a very significant way to reducing the overall volume of capital sentences. However, it was cited as something of symbolic importance. There was broad agreement at the seminar that further progress needs to be made, and that in the short to medium term China should cease executions for all non-violent crimes. I have no idea what percentage of the current executions concern drug trafficking or corruption, and what percentage is reserved for murder. An emphasis was placed on developing means by which the death penalty can be reduced through judicial intervention, this being a more promising approach than legislative reform. That makes sense, and is consistent with what has taken place in many countries in Europe and elsewhere that have moved towards abolition in recent decades.

The overall message is one of a commitment to reform, and that is a very good thing. That it is situated within a perspective of full abolition is also extremely positive and encouraging. The information is inadequate and the statistics are lacking. Despite this, the information that we do get indicates that there has been much improvement. It is important to recognize this and to encourage further change.

In my concluding comments at the seminar, I suggested that China might find a way to express its evolving view on the death penalty by abstaining when the bi-annual resolution on capital punishment comes before the United Nations General Assembly next November.

This positive assessment is not meant to suggest that a huge amount does not remain to be done (nor to imply that China does not have other serious human rights problems). As a reform measure, China should eliminate capital punishment for all crimes but murder. It should record and publish statistics, not only to satisfy international curiosity but in order to inform the research and the ongoing debate within China. Research on the subject is still very rudimentary. This is not helped by the fact that the numbers are kept secret.

In other countries where the death penalty remains in force, like the United States, reform is driven by the vigilant work of dedicated defense counsel and a robust civil society. Although there are some very committed lawyers who work in the area in China, there is no real comparison with what happens in the United States. And civil society in the form of NGOs is not very visible at all in China. The main forum for debates, it would seem, takes the form of conferences and seminars like the one held last week.

Monitoring the status of capital punishment is very much an exercise in observing trends and estimating their extent. The United Nations itself has been rather conservative, and little more than twenty years ago it still seemed to doubt that there was a clear momentum towards global abolition. China’s behaviour in recent years reflects the global trend among states that retain capital punishment towards very significant reduction in its extent. There are only a few exceptions, of which Iran is the main one. If it is true that China has cut back its executions by 50% in recent years, then that is a more dramatic reduction than if every other state in the world that imposes capital punishment were to abolish the practice!

Seven Days in Prison and an Arrest Warrant Ordered by the ICTY for Florence Hartmann

2011-11-28T11:18:00.000Z

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has ordered the imprisonment of the former press attaché to the Prosecutor of the Tribunal for a term of seven days as punishment for a finding of contempt of court. The entire file, with the relevant decisions, can be found here.

The case relates to the book Paix et châtiment, written by Hartmann after she left the Tribunal. It was published in France by Flammarion. The book discloses the existence of decisions of the Appeals Chamber that were to have remained confidential.

By the judgment of 14 September 2009, she was sentenced to pay a fine of €7,000, to be paid in two installments of €3,500, one on 14 October 2009 and the other on 14 November 2009. On 19 July 2011 the Appeals Chamber dismissed her appeal of the decision, and ordered that the fine be paid in two equal installments of €3,500 on 18 August 2011 and 19 September 2011. On 16 November 2011 the Appeals Chamber noted that the fine remained unpaid, and ordered the issuance of a warrant of arrest. It also ordered that the fine be converted to a term of imprisonment of seven days.

I understand that Florence Hartmann lives in Paris, and that the warrant of arrest is directed specifically at the French authorities. Several prominent French intellectuals have issued a statement in protest. See the statement published in Le Monde some days ago. The NGO Reporters Without Borders has also challenged the order.

It has always been doubtful in law that the judges of the ICTY even had the power to cite people for contempt of court committed outside the courtroom. Their jurisdiction consists of serious violations of international humanitarian law committed on the territory of the former Yugoslavia. Unlike the International Criminal Court, there is no specific provision in the Statute of the Yugoslavia Tribunal allowing for punishment of contempt. The Tribunal’s judges, through the Rules of Procedure and Evidence, have given themselves such a power, premised on the idea that it is implicit in their authority to administer justice.

Assuming for the sake of argument that the judges have this inherent or implied power, it certainly cannot be unlimited. Punishing a writer for publishing a book in Paris may well have crossed the line. Contempt charges have always been a bit of a challenge for impartial justice because of the tendency for the ‘victim’ to be both prosecutor and judge. Moreover, in this case the ‘victim’ is also the lawmaker. The Tribunal is hardly the place for a genuine debate about the existence of such extensive implied or inherent powers.

But to enforce the judgment, the French justice system will have to get its feet wet. Perhaps French judges will bristle at the far-reaching scope of the powers the Tribunal has assumed. They may find it offensive that a sentence of imprisonment is imposed upon the writer of a memoir. And if they do not, this case may well end up in Strasbourg at the European Court of Human Rights. In addition to the freedom of expression issues that are raised, perhaps the Court will also consider whether imprisonment for failure to pay the fine constitutes inhuman or degrading punishment. It will be interesting to see the world’s leading international human rights court sitting in judgment of the world’s most distinguished international criminal court.

Ireland and the UN Framework for Business and Human Rights: A Conference

2011-11-25T06:32:00.000Z

The Irish Centre for Human Rights and the School of Law, National University of Ireland Galway, will hold a conference on 24 March 2012 to explore and analyse issues of law and policy for Ireland arising from the 2011 adoption by the United Nations of Professor John Ruggie's framework for business and human rights. The framework emphasises a State's duty to protect human rights, a corporate responsibility to respect human rights and the need to provide remedies to respond to violations of human rights by business. This conference seeks to look beyond the voluntary corporate social responsibility approach to business and human rights; as Maurice Manning, President of the Irish Human Rights Commission has observed, 'voluntarism can never be a substitute for global standards on businesses' mandatory compliance with human rights'. The organisers welcome in particular contributions which address seek to address legal questions which arise in relation to the UN framework on business and human rights. Ireland represents an obvious case study in this context, given the presence of numerous multinational corporations, increasing privatisation of public services and allegations of corporate involvement in human rights violations both in and outside of Ireland. The conference aims to address the following topics:

·         Legal and policy approaches to regulation of Irish companies for human rights

·         Obligations of the State and companies when public functions are privatised

·         Role of extraterritorial jurisdiction in Irish law to address violations committed overseas by Irish companies or multinationals based here

·         The potential role of criminal law to address violations of human rights by business

·         Civil litigation as a means accountability - lessons from the Alien Tort Claims Act

·         Remedies for victims

Abstracts should be sent by 21 December 2011 to: Dr Shane Darcy (shane.darcy@nuigalway.ie) and Dr Ciara Hackett (ciara.hackett@nuigalway.ie). Successful applicants will be informed in January 2012 of their acceptance. For further information and registration for the conference please contact:
Hadeel Abu Hussein: h.abushussein1@nuigalway.ie

Human Rights and Iran: Engagement or Boycott?

2011-11-24T16:21:00.002Z

The UN Watch blog has criticised me for speaking in Tehran at an international conference earlier this week.
My speech in Tehran yesterday morning began by referring to recent developments in Egypt, and more generally to the quest for freedom throughout the Middle East over the past eleven months. The theme of my presentation was the responsibility of the International Criminal Court and of other international bodies to intervene in order to protect people exercising their legitimate rights of freedom of expression and freedom of assembly. The message for Iran was inescapable.
I also recalled the film Nuremberg: Its Lesson for Today that Sandra Schulberg showed to the conference the previous evening (discussed in a previous blog entry). In my remarks, I clearly indicated the importance of the film's message in challenging those who attempt to deny the Holocaust. I urged Iran to ratify the Rome Statute of the International Criminal Court. I also spoke about the issue of capital punishment, where Iran stands virtually alone now as a state where the rate of executions is actually increasing.

Furthermore, I took advantage of my visit to Tehran to lecture to university students in a classroom setting about international justice, the need to abolish the death penalty and the promotion of human rights.

It is important that such messages be transmitted in Iran, where NGO activists are intimidated and persecuted and where academics are threatened with dismissal and imprisonment if they say similar things. To the extent a space exists in Tehran for foreign scholars like myself, it is our duty to travel there and speak as freely as we can. We would be betraying those who fought and died in the post-election protests two years ago if we refused to do this.

Engagement with Iranian civil society is a much better option than the approach that Hillel Neuer and UN Watch espouse. The latter amounts to ostracism and boycott, and is unlikely to contribute to progressive development within Iran.

In reality, the critique of my engagement with Iran by UN Watch is a rather incoherent diatribe that begins by condemning my host, the NAM Centre for Human Rights and Cultural Diversity, essentially because it was created by the Non-Aligned Movement (an organization that comprises more than half the states in the world). Then it goes on to attack the Non-Aligned Movement itself, because it gives ‘a free pass to the oppressive rulers of Iran, Syria, Cuba, China, Zimbabwe and others’. But that can hardly be true, because the resolution condemning Iran adopted in the General Assembly’s Third Committee a few days ago could only have passed with the support or abstention of many members of the Non-Aligned Movement.

The charge that ‘cultural diversity’ is incompatible with universal human rights is a very simplistic proposition. Human rights have always involved a degree of deference to local cultures and practices. Even within Europe, which may appear culturally monolithic to the rest of the world, the European Court of Human Rights has consistently acknowledged the relationship between universal rights and ‘cultural diversity’ through its doctrine of the margin of appreciation. Human rights will make more headway in Iran by addressing the cultural issues than it will by sanctimonious lectures about universality.

UN Watch constantly attacks the UN for one-sided criticism of Israel, but then commits the same sin with its obsessive focus on Israel’s critics. I suspect that had I spoken at an event associated with the Non-Aligned Movement of states in India or Mexico or Indonesia or somewhere else far from the concerns of Israel’s propagandists, there would have been no interest at all from Hillel Neuer and his blog. He complains about demonization of Israel and then demonizes its enemies.

Iran, Syria, Cuba, China and Zimbabwe should certainly not get a free pass. But then neither should Israel. Whether I am speaking in Tehran or in Tel Aviv, I hear the same hypocritical grumbles about how double standards prevail in the area of human rights.

UN Watch no doubt benefits from the warm glow (and confusion) that results from the impression that it is associated with the distinguished and credible NGO Human Rights Watch, but of course there is actually no connection. UN Watch is more like the Geneva equivalent of a right-wing US radio talk show.

Academics are fortunate because we can, in a sense, pass under the radar. I would probably have been refused a visa had I been asked to go and speak on behalf of Amnesty International. But as a academic, I can get in to the country and then speak my mind. It would be a shame to pass up the opportunity by boycotting such events, as UN Watch urges me to do.

The Nuremberg Trial and Tehran: Truly a Lesson for Today

2011-11-24T15:31:00.000Z

Sandra Schulberg's film Nuremberg: Its Lesson for Today was shown in Tehran on Tuesday night at the conference on International Humanitarian Law co-sponsored by the NAM Centre for Human Rights and Cultural Diversity, the International Committee of the Red Cross and the Irish Centre for Human Rights. Sandra was present for the showing, and when it was over she and I spoke to the audience about the film and more generally about justice and the Holocaust.
Readers of the blog will be aware that there is a certain constituency in Iran that denies the historic truth of the Holocaust, and this underscored the importance of showing the film in Tehran. People came up to us afterwards and asked if everything in the film was really true. The answer, of course, is that the film is a documentary based upon original footage shot during and after the war. Although the film has lengthy scenes from the trial itself, there is also a great deal of information about the Nazi atrocities including the extermination camps.
The original film was made by Sandra's father, Stuart Schulberg. We were told that following the showing some rumors were circulating that this was 'American propaganda', based on the undisputed fact that it was made for the United States Department of the Army in 1948. But as Sandra explained to the audience, the film was actually suppressed in the United States, which by 1948 had come to see the Soviet Union as the real villain and was anxious not to be too antagonistic to its new ally, post-war Germany. Sandra notes that Robert Jackson, who had led the American prosecution team at Nuremberg before returning to his position as justice of the Supreme Court, unsuccessfully tried to obtain the film for a showing to the New York bar.
After some retouching of the Persian subtitles, the film should be available widely in Iran. Many in the audience asked how they could get a copy. Wide dissemination of Nuremberg: Its Lesson for Today will help clarify the historical truth of Nazi atrocity and, at the same time, challenge those who attempt to deny it.

Conference on International Criminal Justice at 9 Bedford Row

2011-11-24T15:15:00.000Z

The barristers chambers of 9 Bedford Row in London, where I am a 'door tenant', held a conference Saturday on international criminal law. The presentations are available on Youtube, including my own lecture on the history of of the legal concept of crimes against humanity. Other participants included Steven Kay, who spoke about the proceedings at the International Criminal Court in the Kenya cases, Toby Cadman on the Bangladesh tribunal, and David Young on the Special Tribunal for Lebanon, and several other speakers who delivered presentations of great interest.

Libya and the ICC: Comment by Carsten Stahn

2011-11-24T15:05:00.002Z

Carsten Stahn has written a very interesting article on the recent developments concerning the prosecution of the two Libyans at the International Criminal Court. Click here.

Sunny Jacobs and Peter Pringle

2011-11-20T19:03:00.000Z

Sunny Jacobs and Peter Pringle were married earlier this month. Read the charming account of the wedding, and of their lives, in the New York Times.
Both Sunny and Peter were sentenced to death, Sunny in Florida and Peter in Ireland, and both were later exonerated. They met in Galway many years ago when Sunny was doing a lecture tour for Amnesty International as part of a campaign against capital punishment. Sunny and Peter have often visited the Irish Centre for Human Rights where they have spoken with students about their lives on death row.
Congratulations to you both and warmest wishes for a happy life together!
Thanks to Michael Radelet.

Dr Brendan Tobin

2011-11-20T10:32:00.000Z

From left, myself, Vinodh Jaichand, Brendan Tobin, Patrick Thornberry and Ray Murphy.

Brendan Tobin successfully defended his doctoral thesis Friday at the Irish Centre for Human Rights. Prof. Patrick Thornberry was the external examiner and Dr. Vinodh Jaichand was the internal examiner. The thesis was entitled: Why Customary Law Matters. Indigenous Peoples’ Customary Laws and Human Rights.

Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute

2011-11-03T08:09:00.002Z

Earlier this week, I posted a blog entry discussing possible accession by Palestine to the Rome Statute. Were Palestine to attempt accession, by depositing a document with the Secretary-General of the United Nations (who is depositary of the Rome Statute), the question of the Secretary-General’s reaction arises. I had dinner with Prof. Andrew Clapham in Geneva yesterday evening, who helpfully pointed me to the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties.

The Summary of Practice discusses multilateral treaties open to ratification or accession by ‘all States’. This is the case for the Rome Statute of the International Criminal Court. Here is the relevant paragraph (references omitted).

2. The "all States formula"

81. Nevertheless, a number of treaties adopted by the General Assembly were open to participation by "all States" without further specifications (see, for example, the Convention on the Suppression and Punishment of the Crime of Apartheid and the Convention on the Prevention and Punishment of Crimes against Diplomatic Agents and Other Internationally Protected Persons). In reply to questions raised in connection with the interpretation to be given to the all States formula, the Secretary-General has on a number of occasions stated that there are certain areas in the world whose status is not clear. If he were to receive an instrument of accession from any such area, he would be in a position of considerable difficulty unless the Assembly gave him explicit directives on the areas coming within the "any State" or "all States" formula. He would not wish to determine, on his own initiative, the highly political and controversial question of whether or not the areas whose status was unclear were States. Such a determination, he believed, would fall outside his competence. He therefore stated that when the "any State" or "all States" formula was adopted, he would be able to implement it only if the General Assembly provided him with the complete list of the States coming within the formula, other than those falling within the "Vienna formula", i.e. States that are Members of the United Nations or members of the specialized agencies, or Parties to the Statute of the International Court of Justice.

3. The practice of the General Assembly.

82. This practice of the Secretary-General became fully established and was clearly set out in the understanding adopted by the General Assembly without objection at its 2202nd plenary meeting, on 14 December 1973, whereby "the Secretary-General, in discharging his functions as a depositary of a convention with an 'all States' clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession. The "practice of the General Assembly", referred to in the above-mentioned understanding is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the "'Vienna formula". Such indications are to be found in General Assembly resolutions, for example in resolutions 3067 (XXVIII) of 16 November 1973, in which the Assembly invited to the Third United Nations Conference on the Law of the Sea, in addition to States at that time coming within the long-established "Vienna formula", the "Republic of Guinea-Bissau" and the "Democratic Republic of Viet Nam", which were expressly designated in that resolution as "States".

Thus, should the General Assembly recognize Palestine as a State in the coming weeks, the Secretary-General would be satisfied and would accept an accession by Palestine to the Rome Statute. The so-called ‘Vienna formula’ is derived from the Vienna Convention on the Law of Treaties, and allows participation by ‘all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention’. But this is not what the Rome Statute provides, so the Vienna formula is not relevant here.

It seems that even without General Assembly endorsement, the recognition of Palestine as a State by UNESCO would be sufficient. Here are the relevant paragraphs:

C. Applications of the practice of the General Assembly 1. Colonial countries upon independence

84. Further decisions of the General Assembly, taken within the context of its deliberations on the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (see para. 264 below), noted with satisfaction the accession of various countries to independence. Such was the case, for example, with the decision concerning Brunei taken within the context of agenda item 18 at the thirty-eighth session. These decisions have been considered by the Secretary-General as allowing for the inclusion of those newly independent countries in the "all States" formula.

2. Cook Islands

85. The question of whether the Cook Islands was an "independent" entity, i.e. a State, was also raised. For a period of time it was considered that, in view of the fact that the Cook islands, though self-governing, had entered into a special relationship with New Zealand, which discharged the responsibility for the external affairs and defence of the Cook Islands, it followed that the status of the Cook Islands was not one of sovereign independence in the juridical sense. Moreover, the General Assembly, in its resolution 2064 (XX) of 16 December 1965 on the question of the Cook Islands, had reaffirmed the responsibility of the United Nations "to assist the people of the Cook Islands in the eventual achievement of full independence, if they so wish, at a future date". That resolution, which was adopted in view of a change in the status of the Cook Islands, further indicated that the latter had not yet attained full independence within the meaning of the term in United Nations usage. It followed that, unless specifically invited to participate in a treaty, the Cook Islands could not invoke the "all States" clause.86. However, in 1984, an application by the Cook Islands for membership in the World Health Organization was approved by the World Health Assembly in accordance with its article 6, and the Cook Islands, in accordance with  article 79, became a member upon deposit of an instrument of acceptance with the Secretary-General.... In the circumstances, the Secretary-General felt that the question of the status, as a State, of the Cook Islands, had been duly decided in the affirmative by the World Health Assembly, whose membership was fully representative of the international community. The guidance the Secretary- General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical to the decision of the World Health Assembly. The same solution was adopted by the Secretary-General when Niue, in 1994, applied for membership in the World Health Organization. Moreover, on the basis of the Cook Islands' membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture Organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the "all States" formula, were it to wish to participate in treaties deposited with the Secretary-General.

I think the previous paragraph makes it clear that admission to UNESCO would be satisfactory as far as the Secretary-General is concerned. Its membership is ‘fully representative of the international community’ and any guidance from the General Assembly would be ‘substantially identical’ to the position taken by UNESCO earlier this week.

Thus, nothing stands in the way of Palestine acceding to the Rome Statute except Palestine itself.
The Prosecutor of the International Criminal Court might also take some guidance from the practice of the Secretary-General. If UNESCO membership is good enough for the Secretary-General in terms of accession to an 'all States' clause, then it should be good enough for the Prosecutor in terms of the application of article 12(3) of the Rome Statute. He should now move on to an assessment of the substance of the allegations that crimes under the Statute have been committed in Palestine since 1 July 2002.

Bizimungu Judgment

2011-11-01T14:58:00.000Z

In September, I complained about the judgment in the Bizimungu et al. case at the International Criminal Tribunal for Rwanda. The Tribunal announced the verdict, which involved the acquittal of two of the four defendants, but did not immediately publish the judgment. It is now available here.

Palestine Should Accede to the Rome Statute

2011-11-01T05:24:00.000Z

Palestine has been admitted as a member of UNESCO. In yesterday’s vote, the General Conference of the United Nations Educational, Cultural and Scientific Organisation agreed by by 107 votes in favour, with 14 against and 52 abstentions, to admit Palestine. Ireland was among those states that voted in favour, along with France, Austria. Brazil, Russia, China, India and South Africa. This sits within the campaign for admission to full membership in the United Nations itself.

Article II(2) of the UNESCO Constitution provides that a state which is not a member of the United Nations may be admitted by a two-thirds vote of the General Conference. This is what happened yesterday.

The hurdle at the United Nations itself is the requirement in the Charter of the United Nations that membership be agreed by the Security Council. Israel’s big friend in the Security Council is very likely to veto this.

But in its campaign for recognition as a state, Palestine should consider another forum: the International Criminal Court. Article 125(3) of the Rome Statute states: ‘This Statute shall be open to accession by all States.’ Palestine would accede to the Statute rather than ratify it, because ratification is available to States that have previously signed the Statute. The deadline for signature was 31 December 2000. No significant consequence is attached to the distinction between ratification and accession.

In contrast with both UNESCO and the United Nations, there is no requirement of a decision or vote in the case of membership of a state which is not a member of the United Nations. The only obstacle in the case of the Rome Statute lies with the Secretary-General of the United Nations, who is the depository of the treaty. He could decide to refuse to accept accession by a body deemed not to constitute ‘a state’. Presumably this is what the Secretary-General would do if an instrument of accession was submitted by Taiwan or by the Turkish Republic of Northern Cyprus. But how could the Secretary-General refuse the accession by ‘a state’ that has already been recognized as ‘a state’ pursuant to the Constitution of UNESCO?

Palestine has already engaged with the International Criminal Court by filing a declaration in accordance with article 12(3) of the Rome Statute. This enables ‘a state’ to grant jurisdiction to the Court without actually ratifying or acceding to the Statute. Such a declaration does not go through the Secretary-General of the United Nations. Initially, it is for the Prosecutor to consider whether the declaration is valid. He has been reflecting on the legality of the declaration for more than two and a half years. I recently asked someone from the Office of the Prosecutor what was going on and was told: ‘We are waiting for the outcome in the United Nations.’ The result in the Security Council is probably can be anticipated. But the UNESCO vote may have short-circuited that issue as far as the Court is concerned.

There may be reasons why Palestine would not want to join the International Criminal Court. This would have the consequence of subjecting all conduct on its territory to the jurisdiction of the Court. But accession can only be a positive development in terms of the protection of human rights within Palestine. I hope Palestine (as well as Israel) will take such a step. It will contribute not only to its own campaign for recognition as a state but also to lasting peace in the Middle East.

An accession by Palestine would also contribute to resolving the issue of the validity of the declaration under article 12(3). In one sense, the declaration would no longer be necessary, at least from the point of accession. It is not entirely clear, however, whether accession by Palestine would mean that the article 12(3) declaration could apply to the past, to a period when Palestine may not have been ‘a state’ within the meaning of the Rome Statute. But this is really a detail.

The Security Council will consider Palestine’s application for membership in the United Nations in a couple of weeks. If Palestine wants to build the momentum that it achieved by yesterday’s UNESCO vote, it should submit its accession to the Rome Statute immediately.

Michael D. Higgins is Ireland’s New President

2011-10-29T16:04:00.008+01:00

Top. Michael D. Higgins and myself at the tenth anniversary celebrations of the Irish Centre for Human Rights, last November. Bottom: Michael D. Higgins speaking at the Irish Centre for Human Rights, with Vinodh Jaichand, Sean Love, Jim Browne and myself.

Our friend and colleague, Michael D. Higgins, has been elected the ninth president of Ireland. He is a great supporter of human rights, for which a commitment of a lifetime has given him an international reputation.

Michael D., as he is known to everyone (in Ireland, we even call the President by their first name), is an adjunct professor on the faculty of the Irish Centre for Human Rights. He has been a regular participant in our activities over the years.

The position of President of Ireland is of immense symbolic importance, even if the actual powers of the head of state are relatively limited. The election of Michael D. Higgins demonstrates the profound commitment of the people of Ireland to equality, non-discrimination, social justice, international development and solidarity with victims of aggression and occupation.

His eloquent voice has already been heard around the world. Now it is strengthened by the prestige of his office and the magnitude of his mandate from the people of Ireland.

Report on Candidates for Judge at the International Criminal Court

2011-10-29T15:49:00.000+01:00

At the invitation of the Coalition for the International Criminal Court, a prestigious panel has assessed the current list of candidates for judicial office at the Court with a view ‘to encourag[ing] States Parties to nominate the most qualified candidates to be judges of the International Criminal Court’. The report published earlier this week describes most of them as ‘qualified’ without further comment, but the panel expresses reservations about four of them. Although the idea of such an assessment is good, I’m not convinced that the exercise is all that helpful or constructive.

The approach is quite mechanistic. The panel examines the cv’s and other documents submitted with the nomination to see if the formal requirements of article 36 of the Rome Statute are met. For example, three of the candidates proposed on list A (substantial involvement in criminal proceedings) are rejected. According to the panel, ‘this requires courtroom experience, including experience in criminal trials or appeals proceedings, of at least several years and that such experience should have been a substantial and more than peripheral part of the occupation of the candidate; membership in bar associations and occasional appearances in criminal proceedings do not suffice.’

The Tunisian candidate was declared not qualified on this basis. The panel acknowledged that although he ‘has extensive expertise in criminal law, including international criminal law, and is engaged in academic activities and professional societies relating to criminal law, the materials reviewed by the Panel, including extensive writings accompanying the candidate’s CICC judicial questionnaire, do not indicate that the candidate’s practice substantially involved criminal proceedings’. The Mexican candidate had a similar fate. The panel wrote that he ‘possesses extensive experience in government service, such as in dealing with matters related to criminal law and procedure, including extradition and criminal law policy issues. As Deputy Prosecutor of Legal and International Affairs in the Office of the Attorney General of Mexico, the candidate advocated on behalf of the Government of Mexico in a case involving the diversion and recovery of public funds. The Panel finds, however, that the candidate did not have substantial direct involvement in criminal proceedings.’ And finally, the Cypriot candidate was a practicing lawyer for five years and a family court judge for twenty-years.

As for List B (international law), the panel found the candidate from Costa Rica to be not qualified. It noted that he had ‘an extensive career as a diplomat working in fields such as international peace and security, both in the context of the United Nations and his own government. The candidate was educated in the field of law, and studied toward degrees in the law of international cooperation as well as politics. The Panel also notes that the candidate has been a professor of international relations. Absent from the candidate’s professional and academic background, however, is established competence in the specific areas of international law relevant to the judicial work of the Court such as international humanitarian law and the law of human rights.’

Many of the judges already elected to the Court in previous elections might not qualify according to these rigorous standards.

The panel has adopted a rather strict construction of article 36 which sets out the criteria for qualification of judges. This is unfortunate, because the rather detailed terms of article 36 can have the consequence of excluding well-qualified candidates. What we require at the Court are wise, sensible and fair-minded individuals. That should be the focus of any assessment of qualifications. Unfortunately, with its focus on these rather bureaucratic details, the panel spots the trees but misses the forest.

It might, instead, have considered the judicial record of some of the candidates. For example, the first candidate on the list, judge Bankole Thompson, was declared qualified. He has already served on the Special Court for Sierra Leone. I would not say his record was particularly distinguished. In the final trial judgment in the ‘CDF case’, he dissented, voting to acquit two men charged with responsibility for terrible atrocities not because they were not involved in the acts in a factual sense but because the judge considered they were defending a democratically elected government and this offered them a full defence. This absurd suggestion no doubt went over rather well with the Government of Sierra Leone, which seems to have rewarded him with their nomination to the International Criminal Court. Shouldn’t the panel have warned members of the Assembly of States Parties of concerns about this man’s fitness to serve? But on paper according to the terms of article 36, he ticks all the boxes so the panel finds him to be ‘qualified’.

I'd take a judge with twenty-two years of experience, even if it was in family law cases, over an individual with such a misguided view of personal responsibility for atrocity crimes.

The Panel notes that the Rome Statute places no limit on the age of judicial candidates and does not impose a mandatory retirement age. There is a study, appended to the panel’s report, showing that most states do this for senior judicial office. Accordingly, ‘The Panel suggests that the ASP or its Advisory Committee on nominations consider this issue with a possible goal of developing a practice whereby States Parties would not nominate candidates who would reach a certain maximum age during the course of their elected terms.’

This is a plainly discriminatory comment that, moreover, flies in the face of evidence that quite elderly judges serve international criminal justice with great distinction. I think of two of our greatest international judges, who sat into their eighties: Mohamed Shahabbuddeen and Theodor Meron. Judge Meron is still working away at the International Criminal Tribunal for the former Yugoslavia, contributing to its activities with his immense wisdom and experience. Judge Li, who was in the famous Tadic Jurisdictional Decision, was more than ninety.

An age limit, even if imposed only informally is a bad idea. This, too, is a bureaucratic attempt to address problems of qualification of judges. Moreover, the fact that many states have archaic legislation imposing age limits is not a good argument for extending this to the International Criminal Court. Everywhere, retirement ages are being increased to take account of greatly extended human longevity. Policies that fail to adjust to this are quite plainly discriminatory, and contrary to fundamental human rights principles.

Judges should be assessed individually and not according to a formula, whether it is based upon age or professional experience. Many of our best judges would fail the tests proposed by the panel in this report.

Rwandan Extradition Authorized by European Court of Human Rights

2011-10-28T06:45:00.001+01:00

Another element in the issue of extradition and transfer to the Rwandan justice system. Yesterday, a Chamber of the European Court of Human Rights dismissed the application by a Rwandan genocide suspect who was fighting extradition to Rwanda by Sweden. It is the latest in a long line of cases from various jurisdictions in Europe as well as from the International Criminal Tribunal for Rwanda that address the fairness of the Rwandan justice system and the danger of inhuman treatment if suspects are returned to Rwanda for trial. A further dimension to these cases is that they concern genocide and not just ordinary crimes. There is an international legal duty to ensure that genocide suspects are brought to justice.

Earlier this year, a Trial Chamber of the International Criminal Tribunal for Rwanda ruled that the transfer of a case to Rwanda could proceed. That decision is now on appeal.

Several European states have considered extradition. In the UK, four cases proceeded through the courts but extradition was ultimately denied and the suspects were set free. They continue to live in the UK and have not been brought to justice. Finland chose to proceed domestically by way of universal jurisdiction. Sweden rather boldly decided to go ahead with an extradition, despite the British ruling as well as those of the International Criminal Tribunal for Rwanda denying transfer. The case has been pending before the European Court for more than two years.

From the standpoint of the European Convention on Human Rights, there have been two issues, based upon articles 3 and 6. The article 3 issue concerns inhuman or degrading treatment, and it has not proven to be very difficult in any of the proceedings. The article 6 issue, about the risk of a flagrant denial of the right to a fair trial, has been more difficult, largely because the parameters of the European Court’s caselaw remain uncertain here. It all goes back to a reference in the famous Soering decision of 1989. Soering denied extradition based upon a possible violation of article 3, but said, in passing, that issues might also arise under article 6.

Here is what the Chamber had to say in yesterday’s decision:

115. It should be noted that, in the twenty-two years since the Soering judgment, the Court has never found that an extradition or expulsion would be in violation of Article 6. This indicates that the “flagrant denial of justice” test is a stringent one. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

In my view, the earlier decisions of the International Criminal Tribunal for Rwanda were overly harsh and, ultimately, wrongly decided. They had a terrible influence on justice officials and courts in Europe, and ultimately contributed to impunity for genocide (even if this was not their intent).

One of the challenges to international justice is its ability to make fair assessments of domestic legal systems. At the International Criminal Court, a case may be admissible if the national justice system is ‘unable’ to proceed. Setting standards that are too high will mean that the international system will always prevail, at least when poor and developing countries are concerned.

We are constantly improving our expectations of fair trial standards. Even in rich countries, the expectations are much higher than they were decades ago. But does that mean that all trials in the past were unfair? There is something wrong with such assessments.

Thanks to Christopher Ryan.

Turkey, Genocide and the European Court of Human Rights

2011-10-27T22:31:00.000+01:00

One of our colleagues in the field of genocide studies, Taner Akçam, yesterday won an important case at the European Court of Human Rights. A Chamber of the Court held that Taner had been a victim of a violation of article 10 of the European Court of Human Rights as a result of his lecturing and writing on the genocide of the Armenians.

Tanar Akcam

Taner’s latest book, The Young Turks’ Crime Against Humanity: The Armenian Genocide and Ethnic Cleansing in the Ottoman Empire, will be published shortly by Princeton University Press.

Taner is the author of an important book on the Armenian genocide, entitled A Shameful Act.

A citizen of Turkey and Germany, he is currently a professor of history at Clark University in the United States.

Taner is not the first Turkish intellectual to be prosecuted for a violation of the notorious article 301 of the Turkish Criminal Code which makes it an offence to denigrate ‘Turkishness’. In 2006 Taner wrote about the prosecution of Hrant Dink, an Armenian living in Turkey who was later assassinated by an extremist. Private complaints were lodged against him based on article 301, although the public prosecutor did not proceed. Before the European Court, he showed that in a four-month period in 2008 total of 116 people, 77 of whom were journalists, were prosecuted. He also claimed that the criminal complaints filed against him for his views had turned into a harassment campaign, with the media presenting him as a ‘traitor’ and ‘German spy’.

In yesterday’s judgment, the European Court said there had been an ‘interference’ with Taner’s freedom of expression. According to the ruling,

while the legislator’s aim of protecting and preserving values and State institutions from public denigration can be accepted to a certain extent, the scope of the terms under Article 301 of the Criminal Code, as interpreted by the judiciary, is too wide and vague and thus the provision constitutes a continuing threat to the exercise of the right to freedom of expression. In other words, the wording of the provision does not enable individuals to regulate their conduct or to foresee the consequences of their acts. As is clear from the number of investigations and prosecutions brought under this provision …, any opinion or idea that is regarded as offensive, shocking or disturbing can easily be the subject of a criminal investigation by public prosecutors. (para. 93)

Thanks to Payam Akhavan.

Dr. Alfred Mwenedata

2011-10-24T06:15:00.001+01:00

From left, Professor Stephen Marks, Alfred Mwenedata, myself, Dr. Laurent Pech.

Alfred Mwenedata successfully defended his doctoral thesis at the Irish Centre for Human Rights on 21 October. The subject of his thesis was the promotion and protection of human rights in the context of HIV/Aids. Professor Stephen Marks of Harvard University was the external examiner, and Dr. Laurent Pech was the internal examiner. Alfred is a law lecturer at the Kigali Independent University, in Rwanda. Congratulations, Alfred, on this important achievement.

Antonio Cassese 1937-2011

2011-10-22T16:27:00.000+01:00

News reports today confirm that Antonio Cassese passed away yesterday. He had been ill with leukemia for some time, although he continued working at his most recent position, as judge at the Special Tribunal for Lebanon, until very recently. He stepped down as its president two weeks ago.
The world has lost one of its greatest international criminal lawyers. Professor Cassese was already a very distinguished academic in the field of international law, specialized in the area of human rights, when he was elected as one of the first group of judges at the International Criminal Tribunal for the former Yugoslavia in late 1993. With hindsight, we know that this was the revival of a body of law that had lain largely dormant since the trials at Nuremberg and Tokyo in the late 1940s. But at the time there were many skeptics, and it was not then in the least bit obvious that something great was beginning. Nino was one of those who understood the importance of what was going on then. At the first plenary of judges of the International Criminal Tribunal he was elected the institution's first president, and it was from that influential position that he steered the fledgling court.
He did more than that, of course, because he set the tone for the entire discipline. Rather boldly, in 1995 the Appeals Chamber over which he presided issued a seminal decision that represented a sea change in our understanding of the law. The Tadic Jurisdictional Decision declared that war crimes could be punished even when committed in internal armed conflict, and established the existence of crimes against humanity in peacetime. Seemingly controversial at the time, both principles were soon widely accepted and confirmed when the Rome Statute of the International Criminal Court was adopted in October 1998.
Professor Cassese continue to exercise a profound influence on the development of international criminal law, serving as a judge on the Appeals Chamber and later on trial chambers until 2001. In 2004-5, he chaired an important United Nations inquiry into atrocities in Darfur. Later, he took up the presidency of the Special Tribunal for Lebanon. His final contribution early this year was a massive judgment on the international criminality of terrorism.
Much longer obituaries will be written about this great jurist. This brief note summarizes some of his massive accomplishments. He was a warm individual, dignified and courteous. Like all great professors, he was deeply devoted to his many students and proteges. My sympathy goes out to his wife and family who, in their bereavement, can be immensely proud of his enormous contribution to the cause of peace and justice.

Declining Support for Death Penalty in US

2011-10-19T08:34:00.001+01:00

According to the New York Times of 14 October, a recent Gallup Poll shows: 'support for the death penalty is at its lowest level since 1972. In fact, though, the decline, from a high of 80 percent in 1994 to 61 percent now, masks both Americans’ ambivalence about capital punishment and the country’s de facto abolition of the penalty in most places'.
The poll is one further indication of the decline in American support for capital punishment. Other evidence is in the gradual removal of the death penalty from state legislation, the growing reluctance of juries to recommend capital sentences, and the increased hesitation of prosecutors to ask for the death penalty.
Right now, all that is needed is the right case, good facts, and an open door at the Supreme Court. In 2005, the Supreme Court declared the juvenile death penalty to be unconstitutional. The arguments that it relied upon work just as well for the death penalty as a whole. It won't be around much longer.
The interesting question is which country will get there first: the United States or China?
Thanks to Bill Hartzog.

Nuremberg Executions

2011-10-19T07:38:00.000+01:00

Prof. John Q. Barrett regularly circulates items of historical interest about Robert Jackson and the Nuremberg trial. He sends this note about the executions, which took place 65 years ago:

On Tuesday, October 1, 1946, the International Military Tribunal (IMT) at Nuremberg announced its criminal trial judgments on twenty-two individual defendants. It found nineteen defendants guilty of various crimes (conspiracy; aggressive war; war crimes; and crimes against humanity) and three not guilty. The IMT sentenced seven of the convicted men to terms of imprisonment and the other twelve to death by hanging.

Although Justice Robert H. Jackson, United States Chief of Counsel, was present in Courtroom 600 in Nuremberg’s Palace of Justice for the announcement of those IMT judgments, his work as chief prosecutor was effectively complete. Jackson left Nuremberg for the U.S. that same day, arriving back in Washington late on October 2. On Monday, October 7, he was back on the bench as the new U.S. Supreme Court term began. Later that afternoon Jackson delivered his final report to President Truman at the White House and resigned as chief prosecutor.

In Allied-occupied former Germany, the Allied Control Council declined to mitigate any convicted criminal’s sentence. On the evening of October 15, death-sentenced war criminal Hermann Goering, recognizing that his hanging was imminent, somehow used cyanide to commit suicide in his prison cell. Shortly after 1:00 a.m. on October 16, prison guards delivered the ten remaining condemned men to the custody of a U.S. Army team in a newly-constructed execution chamber. Before 3:00 a.m., each criminal was hanged and pronounced dead. (The final criminal who the IMT had convicted and sentenced to death, Martin Bormann, had been tried in abstentia and was never found.)

* * *

By October 1946, Whitney R. Harris, formerly an important junior prosecutor on Justice Jackson’s Nuremberg team, had moved to Berlin and begun working in the Office of Military Government for Germany (U.S.) (OMGUS).

Whitney Harris, who passed away last year.

On October 15, Harris flew from Berlin to Nuremberg to represent Jackson at the executions. Four days later, back in Berlin, Harris sent this report to his former boss:

Mr. Justice Robert H. Jackson

Supreme Court

Washington, D.C.

Dear Chief:

On Tuesday I flew to Nurnberg to be present at the final episode in the trial of the major war criminals. In spite of the efforts of General [Lucius] Clay to gain my admittance as a witness to the actual hangings, this proved impossible under a policy established by the Control Council which excluded members of prosecuting staffs from the execution chamber. However, familiarity with the scene and close contact with the newspaper men who were present was quite sufficient to enable me to report on the details.

The executions took place in the prison gymnasium which you will remember as the small building about seventy-five yards from the door leading into the cell block where the “Big Twenty-one” were imprisoned. The secret that this building, which had been the workroom for the defendants who processed the thousands of affidavits submitted for the [defense of the indicted] organizations and had been used for a basketball game only the Saturday preceding, was to be the execution hall was kept so well that only two security officers knew the fact on Tuesday afternoon.

The members of the four-man committee in charge of the executions were all generals, Roy V. Rickard for the United States, Paton Walsh for Britain, Morel for France and Molkov for Russia. They handled the arrangements very efficiently, except, of course, for the Goering suicide which could scarcely be charged to their neglect. This remains at writing the great mystery of the executions.

At nine-thirty [on Tuesday night, October 15], the correspondents were permitted to inspect the cell block and observe the condemned. Jodl was writing a letter; Ribbentrop was in earnest conversation with a chaplain; Sauckel nervously paced the floor, and Goering simulated sleep, his hands outside of the blankets. At the forty-five, the guard noticed Goering twitching. He called for the corporal of the guard and they rushed into the cell. They saw Goering writhing in agony. When the doctor arrived the death rattle was in his throat. Goering had cheated the hangman. They found in the cell a small envelope marked H. Goering on the outside, inside of which were three notes, one addressed to Colonel Andrus [the prison commandant] from Goering, and the cartridge case in which the vial of potassium cyanide had been preserved. As yet, the contents of the notes have not been released for publication and how Goering got the poison remains unsolved. Goering’s body was brought into the execution chamber so that it might be viewed by the committee and by the two representatives of the German people present, Dr. Wilhelm Hoegner, Minister President of Bavaria, and Dr. Jakob Meistner, General Prosecutor of the High Court at Nurnberg.

At eleven minutes past one o’clock in the morning of 16 October, the white-faced Joachim von Ribbentrop stepped through the door into the execution chamber and faced the gallows on which he and the others condemned to death by the Tribunal were to be hanged. Ribbentrop’s hands were unmanacled and bound behind him with a leather thong. He walked to the foot of the thirteen stairs leading to the gallows platform. He was asked to state his name. Flanked by two guards and followed by the Chaplain, he slowly mounted the stairs. On the platform, he saw the hangman with the noose of thirteen coils and the hangman’s assistant with the black hood. He stood on the trap and his feet were bound with a webbed Army belt. He was asked to state any last words, and said: “God protect Germany. God have mercy on my soul. My last wish is that German unity be maintained, that understanding between East and West be realized and there be peace for the world”. The trap was sprung and Ribbentrop died at 1:29.

In the same way, each of the remaining defendants to receive capital sentences approached the scaffold and met the fate of common criminals. All, except the wordy Nazi philosopher, Rosenberg, uttered final statements. Keitel spoke as a Prussian soldier: “I call on the Almighty to be considerate of the German people, provide tenderness and mercy. Over 2,000,000 German soldiers went to their death for their Fatherland before me. I now follow my sons. All for Germany”. Gestapo Chief Kaltenbrunner declared apologetically: “I served the German people and my Fatherland with willing heart. I did my duty according to its laws. I am sorry that in her trying hour she was not led only by soldiers. I regret that crimes were committed in which I had no part. Good luck Germany”. Frank said quietly: “I am thankful for the kind treatment which I received during this incarceration and I pray God to receive me mercifully”. Frick spoke only the phrase, “Let live the eternal Germany”. Streicher shouted “Heil Hitler!” as he climbed the stairs and followed with the words: “Now I go to God, Purim Festival 1946. And now to God. The Bolshevists will one day hang you. I am now by God my father”. And his last words were, “Adele, my dear wife”. Sauckel protested: “I die innocently. The verdict was wrong. Got protect Germany and make Germany great again. Let Germany live and God protect my family”. Jodl spoke in the manner of an officer addressing his troops: “I salute you my Germany”. Seyss-Inquart climaxed the final statements when he said: “I hope that this execution is the last act of the tragedy of the second world war and that a lesson will be learned so that peace and understanding will be realized among the nations. I believe in Germany”. Seyss-Inquart died at 2:57 less than two hours after von Ribbentrop had entered the execution chamber. It was over—the trial ended, evil requited, and as Dr. Hoegner said, “Justice done”.

I am now at work in Berlin in the Legal Division, Office of Military Government (U.S.), and my job is “Legal advice”, by which I am charged with answering any and all legal questions which may be referred by the Deputy Military Governor or departments of OMGUS. The Legal Division at present is primarily charged with the reinstitution of the legal basis for democratic government in the American Zone of Germany. The laws of the dictatorship have been repealed, but there remains the task of reenacting codes covering each branch of substantive law and reestablishing workable procedures. I hope this task will have been completed by next summer and that when I leave Germany the basis for a new democratic society will have been laid.

…

Faithfully yours,

/s/ Whitney

When Justice Jackson wrote back to Harris, privately, nearly a month later, Jackson expressed disapproval of aspects of the execution events and some of his standards of good judgment and propriety in the use of power:

November 18, 1946

Mr. Whitney R. Harris,

OMGUS, Legal Division

APO 742,

C/o Postmaster, New York City.

My dear Whitney:

I very much appreciated your report of the Nurnberg executions. Apparently the military crowd were a little vindictive. They were very sore, I understand, because those who were sent to take charge of the executions were not put in prominent [courtroom] places at the [IMT] rendering of the verdict. The impropriety of playing up the executioners before the judgment of guilt had been rendered or sentence imposed does not seem to occur to such mentalities, if that is what they can be called by courtesy.

The photographs [of the corpses of the hanged criminals and Goering] which were released in this country have produced an extremely bad impression and with very few exceptions there is criticism, even in the papers that published them, of the fact that they were released. All in all, I am rather glad that the military people shut us out and made it their own performance.

I am glad that you are comfortably situated in Berlin and are at the job of giving legal advice. You certainly are having a very interesting experience and you may decide to make foreign service a career.

I hope you will let us hear from you from time to time and tell us the low-down on what goes on. …

Sincerely yours,

/s/ Robert H. Jackson

Severance of Mladic Trial Denied by Trial Chamber

2011-10-14T08:35:00.001+01:00

The Trial Chamber in the Mladic case has denied the Prosecutor’s motion to sever or divide the charges and to hold separate trials. Here is the ruling. The idea was that there would be an initial trial only about the Srebrenica massacre. Then, depending upon the result, a second trial might be held, perhaps by the Residual Mechanism which is to replace the Tribunal when it concludes its activities in a year or two.

It was an unusual application to begin with, because it was the Prosecutor after all who submitted the indictment. From the very beginning of the charges against Mladic, in the mid-1990s, there were two separate indictments . The first was issued in July 1995, and concerned the overall conduct of the conflict. The second appeared later, and was addressed to the Srebrenica massacre. But later the Prosecutor joined the indictments with a view to holding a single trial. Later, he changed his mind, but this time he required the permission of the Tribunal, which has been denied by yesterday's ruling.

The reason for dividing the indictment and holding separate trials was concern that Mladic might not survive a long trial. The experience of Slobodan Milosevic, who died of a heart attack during his trial, weighs heavily here. So the Prosecutor thought that he would finish one relatively quick trial, obtain a conviction of Mladic for genocide accompanied by a life sentence, and then consider whether it was necessary to do anything more (or leave that matter to his successor).

In yesterday’s ruling, the judges said that they could not rule on the issue of Mladic’s health and the likelihood he would survive a long trial because of a lack of evidence.

The Chamber does not consider the Accused's health to be a factor because the Chamber has had no information properly presented to it on this subject. The Chamber has received no medical reports to review and considers the parties' submissions in this respect to be speculative and unsubstantiated… If the argument is that justice is better served by concluding with a judgement, whether in a conviction or acquittal, of at least one smaller trial on some portion of the current counts, the Chamber stresses that the parties must argue this clearly and directly in their submissions. If the basis underlying the Motion is the health situation of the Accused, the Chamber would have expected the parties to make detailed submissions in this respect, supported by medical documentation, and stresses that it cannot base its findings on media reports or other such sources. Again, no such medical documentation has been provided to the Chamber. (para. 30).

It is interesting that this ruling appears at the very time that Mladic has been transferred to hospital in The Netherlands for pneumonia. But even then, evidence that a man in late middle-age is hospitalised for pneumonia does not mean he is in chronically fragile health or that his demise in imminent. No doubt it was difficult for the Prosecutor to accumulate hard evidence concerning Mladic’s health, because that would require his cooperation. But that also suggests that the Prosecutor’s application was based upon speculation rather than clear evidence. And speculation suggests that we are dealing with stereotypes about the longevity of men of a certain age who comes from a certain part of the world.

Life expectancy – at birth – of Serb males is about 71 years. Mladic will be 70 next March. But the life expectancy of a 70 year-old Serb is more than 1 year. If he’s survived this long, he probably has a sturdy constitution. And he is being so well looked after, with the legendary high-quality medical care of The Netherlands, and the fine food and other living conditions of the Scheveningen detention centre. As Mark Twain said, ‘rumours of my death are greatly exaggerated’. He could drop dead tomorrow, but then so could we all (touch wood!)

Yesterday’s decision also considered the consequences of severance for the other part of the charges against Mladic, which are referred to as the Sarajevo, Municipalities and Hostages case.

Furthermore, the Chamber acknowledges that the Motion envisions a second trial based on the proposed Sarajevo, Municipalities and Hostages Indictment, but notes that it does not address how a second trial also could be impacted by "unforeseen circumstances". Nor does the Motion address how, if the second trial could not be concluded due to these "unforeseen circumstances", a decision to sever could also impact justice for the victims of the crimes alleged in the proposed Sarajevo, Municipalities and Hostages Indictment.

The Chamber also recognized the difficulties that might be imposed upon an accused who was forced to battle in one trial, while at the same time preparing a second.

If Mladic does not survive the trial, the Chamber will get the blame as a result of this decision.

It strikes me that there is a simple solution. The Prosecutor should simply narrow the charges and narrow the evidence. Convicting Mladic of genocide with respect to Srebrenica should not be overly challenging, given the earlier rulings of the Tribunal in Krstic and Popovic, not to mention the 2007 judgment of the International Court of Justice. The sentence will be high and, in any case, given that the Prosecutor thinks it unlikely Mladic can survive a long trial, can it really matter how high the sentence is? It may be hard for the Prosecutor to argue for a lengthy custodial sentence after claiming the poor man may not live for more than a few years.

You can’t discuss these matters for very long before people start invoking ‘the victims’. The Prosecutor wants a speedy trial on one charge in order to respond to ‘the victims’. But the judges say, ‘what about the victims of the other crimes’? And my flippant suggestion about sentencing will surely provoke cries of outrage that only a life sentence can do justice for ‘the victims’. Of course, the interests of victims are an important factor in the entire international criminal justice system. But they get invoked at very turn, and in every direction. It seems that virtually any argument, no matter how fragile, can be burnished by invoking ‘the victims’.

119 States Parties to the Rome Statute

2011-10-14T07:28:00.000+01:00

With the deposit of instruments of ratification of the Rome Statute by Cape Verde, the total of States Parties rises to 119. Cape Verde had signed the Rome Statute on 28 December 2000, a few days before the deadline. It is the first Portuguese-speaking State in Africa to join the Court.

Hartmann Judgment at Yugoslavia Tribunal

2011-10-11T09:20:00.000+01:00

In July of this year, the appeal of Florence Hartmann from her conviction for contempt of court before the International Criminal Tribunal for the former Yugoslavia was dismissed by the Appeals Chamber.
A critique of the decision has just been published by the NGO Article IXX.
Hartmann was convicted for contempt resulting from publication of certain information that she had obtained while employed by the Tribunal's Prosecutor.
I wonder how far the long arm of the Tribunal reaches in this respect. Hartmann was an employee and so she was a bit like a whistle-blower. But suppose an academic like myself were to reproduce what Hartmann had written in an article or on my blog? Or even additional information of a confidential nature that I might obtain because someone sent it to me anonymously?
After all the fuss, Hartmann was fined EUR 7,000. Maybe it is worth seven grand to find out!

International Journal on Human Rights and Drug Policy, volume 2

2011-10-11T08:32:00.002+01:00

The International Centre on Human Rights and Drug Policy is currently seeking submissions for the second edition of the International Journal on Human Rights and Drug Policy. The Journal is the first and only international peer reviewed law journal focusing exclusively on human rights and drug policy issues. Established in 2009, the International Centre on Human Rights and Drug Policy is dedicated to developing and promoting innovative and high quality legal and human rights scholarship on issues related to drug laws, policy and enforcement. It pursues this mandate by publishing original, peer reviewed research on drug issues as they relate to international human rights law, international humanitarian law, international criminal law and public international law. Author’s guidelines, as well as volume 1 of the Journal, may be found at www.humanrightsanddrugs.org or email info@humanrightsanddrugs.org. Deadline for the second edition is 15 November 2011.

Harold Burson Broadcasts at Nuremberg

2011-10-11T07:02:00.002+01:00

Ten days ago, the Sunday New York Times had a column by Joe Nocera about Harold Burson, who had been a US Army reporter at Nuremberg.

Burson went on to become a very important advertising executive. Burson kept the radio scripts that he wrote, and that were read by others over the armed forces network. I’ve now tracked down some of them, on Burson’s own website.

Thanks to John Barrett.

Hiroshima

2011-10-11T07:00:00.000+01:00

The famous Hiroshima dome, which survived the blast on 6 August 1945.

I spent the weekend in Osaka, where I delivered the keynote speech to the Japanese Society of International Law on transitional justice and international legal norms. Here is a copy of the text, which I understand will be published soon.
On Sunday, two colleagues (and close friends), Shuichi Furuya and Keiko Ko, took me to Hiroshima. It was something that had been on my personal list of things to do for many years. I think it so important to see places like Hiroshima where atrocities have been perpetrated. Today, Hiroshima is peaceful, and the site where the bomb was dropped is a serene park. There is an exceedingly modest memorial, and an eternal flame. I think the memorial is located directly below the point where the bomb was actually detonated.

Shuichi Furuya and myself at the memorial to the victims of Hiroshima.

We spent most of the time in the museum. Given our contemporary interest in memorialising atrocities, it is of course fascinating to see how this has been done in Hiroshima. Nowhere is it suggested that the use of the bomb was a war crime. The issue is not even discussed. Rather, it is treated as an inevitable consequence of the war which had a terrible human cost and which is not to be repeated. There is a curious, parenthetical reference to the Nanking massacre. The exhibits note the military significance of Hiroshima, adding fuel to the argument that the bombing may have been legitimate.
In 1996, the International Court of Justice issued an advisory opinion on the use of nuclear weapons. Although it did not totally exclude the possibility, the Court defined a narrow scope involving an extreme case of self defence that could never be extended to Hiroshima.
Some day I will try to get to Nagasaki. It has always seemed to me to be in some ways the worse case of the two, because even if one accepts the need for the Americans to resort to the nuclear bomb, using it a second time was purely gratuitous. Still, Hiroshima is iconic, etched in our minds as the supreme manifestation of the horror of war. Readers of the blog will know the importance that I attach to the human right to peace. My visit to Hiroshima only strengthened this.

Professor Furuya, the sushi chef and his assistants, and myself. Keiko Ko took the photo so she is not in it,

We left Hiroshima in the evening and took the shinkansen (bullet train) back to Osaka, where Professor Furuya and Professor Ko had located a sushi bar near the hotel. We had a wonderful final dinner, and a nice chat with the sushi chef. Japanese hospitality is really unbeatable.
I should add that I also had a very nice visit with Hitomi Takemura, who is one of the doctoral graduates of the Irish Centre for Human Rights, and who is now an assistant professor in a Japanese university.

Getting a PhD in Law

2011-10-05T17:02:00.000+01:00

Caroline Morris and Cian Murphy have just published a very fine guide to doctoral studies in law. Published by Hart Publishing, they say it is for students in the United Kingdom, but I doubt there is anything in it that would not also be applicable to Ireland. It answers many questions and provides much invaluable advice. I don't think that a doctoral student should be without it. It sells for GBP 20, or about EUR 23. It is well worth this small expense.
Hart has also just sent me a new publication entitled Research Methodologies in EU and International Law, by Rob Cryer, Tamara Hervey and Bal Sokyi-Bulley. Like the other volume, it is very strongly recommended. The price is about GBP 23, or EUR 27. Against, a modest amount that will pay itself back quickly.

Lecture on Human Rights and Business at Middlesex

2011-10-04T16:10:00.000+01:00

Middlesex University’s Human Rights and Business Speaker Series As part of Middlesex’s Human Rights and Business Speaker Series, Professor Bruce Broomhall from the University of Quebec at Montreal (UQAM) will give a talk on "Resource Conflicts, Corporate Responsibility and Global Rights Protection: Côte d'Ivoire's Cocoa and the DRC’s Mineral Wealth”.
Date: Monday 17 October - 17:30
Location: Middlesex University, London (Hendon Central Tube – Northern Line)
Refreshments will be available after the talk.
Please RSVP to Christiana Frandzis (c.frandzis@mdx.ac.uk by Thursday 13 October.

Justice Delayed at the International Criminal Tribunal for Rwanda

2011-10-01T06:13:00.000+01:00

Yesterday, a Trial Chamber of the International Criminal Tribunal for Rwanda issued its judgment in the so-called ‘Government case’, where four former ministers of the Rwandan government were defendants. An astonishing result: two of the four were acquitted. The other two were convicted and sentenced to lengthy terms.

As is so often the case with the Rwanda Tribunal, we have a pressrelease but no judgment. There will be one eventually, of course. But this practice of rendering judgment by press release with a judgment to follow is not very good.

It is not the longest trial at the Tribunal, but comes close to setting a record. The length is especially troubling given the verdict. The four accused have been in custody since 1999. Twelve years is a very long time to be in custody when the result is an acquittal. Does anybody know of a case where people were detained for longer than twelve years and then acquitted at trial anywhere in the world in any functional justice system? Over the years much criticism has been levelled at the Rwandan justice system, where men and women were held in detention pending trial for lengthy periods. By, the Rwandan justice system compares well to the International Tribunal in this respect.

The trial itself began in 2003 before Trial Chamber II. It was a saga of missed targets at virtually every stage. In 2005, the President of the Tribunal reported to the Security Council that the trial would be completed in 2006 (see UN Doc. S/2005/782, p. 19). In 2006, he said it would be completed in 2007 (see UN Doc. S/2006/951, Enclosure, p. 17.). In 2007, he said it would be completed in ‘mid-2008’ (see UN Doc. S/2007/676, Enclosure, p. 17). In late-2008, he said judgment was expected in 2009 (see UN Doc. S/2008/726, Enclosure, para. 10). In late 2009, the President of the Tribunal informed the Security Council that the judgment was now expected sometime between September and December 2010 (UN Doc. S/2009/587, Enclosure, p. 76).

The evidentiary phase of the trial concluded with a site visit to Rwanda, in October 2008. Closing arguments were heard during the first week of December 2008. So the Trial Chamber has had the matter under consideration for thirty-three months, from December 2008 until September 2011. And after all of that, the best it can come up with is a press release. Surely if there was to be a unanimous verdict of acquittal in two of the four cases, they could have released these men long ago. Did the judges only decide to acquit in the last few days? They can't argue that they needed to finish drafting a lengthy and complex judgment, because all they have given us is a miserable press release, something that can be drafted in an hour or two.

Perhaps we will know more about this troubling story when the judgment is finally issued. But we are due an explanation from the Trial Chamber for this extraordinary story of delay. As for the two acquitted men, who will surely ask for some form of compensation, they will be told that there is no budget or provision for such things, and that they should be happy with an acquittal.

Two Doctors

2011-09-27T06:41:00.000+01:00

From left, Shane Darcy, myself, Kjell Anderson and Alex Hinton.

From left, Vinodh Jaichand, Roger Hood, Aimé Karimunda and myself.

Two doctors! Yesterday at the Irish Centre for Human Rights, two students successfully defended their doctoral theses. The distinguished graduates are:

Muyuboke Aimé Karimunda, whose thesis is on the death penalty in Africa. The external examiner was Professor Roger Hood of All Souls College, Oxford. Dr Vinodh Jaichand was the internal examiner. Aimé is a university lecturer in Kigali.

Kjell Anderson, hose thesis is entitled ‘The Dehumanisation Dynamic: A Criminology of Genocide’. The external examiner was Professor Alex Hinton, of Rutgers University, and current President of the International Association of Genocide Scholars. The internal examiner was Dr Shane Darcy.

Bravo to you both!

Having ‘two doctors’ recalls the famous ‘psychiatrist’ episode on Fawlty Towers:

Basil: How do you do doctor. Very nice to have you with us, doctor.
Dr (Mr) Abbott: Thank You.
Basil: And Mrs Abbott, how do you do.
Dr (Mr) Abbott: Dr Abbott, actually.
Basil: …I’m sorry?
Dr (Mr) Abbott: Doctor Abbott.
Dr (Mrs) Abbott: Two doctors.
Basil: (to Mr Abbott) You’re two doctors?
Dr (Mrs) Abbott: Yes.
Basil: Well, how did you become two doctors? That’s most unusual…I mean, did you take the exams twice, or…?
Dr (Mr) Abbott: No, my wife’s a doctor…
Dr (Mrs) Abbott: …I’m a doctor.
Basil: You’re a doctor too! So you’re three doctors.
Dr (Mr) Abbott: No, I’m a doctor. My wife’s another doctor.

The Justice Cascade

2011-09-26T08:27:00.000+01:00

The Justice Cascade is a new book by Kathryn Sikkink of the University of Minnesota that is full of important insights into the role and effectiveness of international criminal justice. I was lucky enough to get an advance copy from her when I visited Minneapolis earlier in the year. It is based on a great deal of empirical research. Conclusions about the political impact of prosecutions are drawn. There is a fine review of it by Professor David Scheffer in the latest issue of the New Republic. We're all waiting for David's new book, All the Missing Souls: A Personal History of the War Crimes Tribunals, which is due out in December. It charts the role of international justice in United States policy during the 1990s, when David was the first Ambassador at large for war crimes issues.

The Passenger: Auschwitz at the Opera

2011-09-25T18:16:00.000+01:00

Last night, we went to see ‘The Passenger’, which is an opera about the great themes of international justice. It is largely set in Auschwitz. One of the protagonists, Liese, was an Auschwitz guard. She has kept her past concealed form her husband, who is a German diplomat. On their way to his posting in Brazil in 1958, she spots another passenger on the ship, Marta, and recognizes her as a former inmate of Auschwitz. In the first act, several of the women prisoners, from France, Greece and the Czech Republic, some of them Jews, tell of their past and how they ended up in Auschwitz. The message is unforgiving, as the two women, Marta and Liese stand alone on stage in the final scene.

The composer was Mieczyslaw Weinberg, a Polish Jew who managed to flee to the Soviet Union in 1939. Shostakovich, who was a great friend of his, called the opera ‘a hymn to humanity’. Weinberg spend all of his professional life in the Soviet Union, and was a prolific composer. The opera was composed in 1968. The first performance of the opera, in a concert version, took place only a few years ago. This fabulous staged version – the first – is a joint production of companies in Austria, Poland and the England. We saw the production of the English National Opera at the Coliseum in London

Bad Week for the Death Penalty

2011-09-25T18:08:00.000+01:00

The blog was quiet last week, as I was in China (I can't access the blog in China) lecturing on capital punishment to judges in Guangzhou and Kunming. The general mood was very favourable to the restriction of capital punishment. But meanwhile, elsewhere in the world, there were some very unhappy developments.

Troy Davis was executed in Georgia, some two decades after being sentenced to death. This was despite strong evidence that he is not guilty. There were appeals from around the world, but the authorities in the United States ignored them. Generally, though, the rate of execution in the United States is on the decline. It is about half what it was a decade ago. Some states have removed the death penalty from their legislation, and juries show increasing hesitation in imposing capital punishment ro recommending its use.

Iran is one of the few countries where the rate of execution seems to be increasing. It is also right at the top of the list in terms of the rate of execution. Although China executes more people in absolute numbers, it is also much more populous than Iran. Per capita, Iran kills a lot more people than China. Last week, Iran executed a 17-year-old, Alireza Mollasoltani. He was hanged from a crane in public where the crime for which he was convicted had been committed in the city of Karaj, which is slightly west of the capital, Tehran. Mollasoltani said he had acted in self defence.

Alireza Mollasoltani was born on 24 December 1993 which means he was not yet eighteen years of age at the time of the execution. A representative of the Iranian judiciary who was present at the hanging, Ali Rezwanmanesh, was reported to have said ‘Alireza was not a minor, according to Sharia, since in the Sharia the lunar calendar is used and the years are shorter’. Apparently, the Islamic lunar calendar is some 11 days shorter than the solar calendar, with 354 days a year.

It is now beyond question that the execution of a person for a crime committed when under the age of eighteen is contrary to customary international law. With respect to Iran, it is also contrary to treaty obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

With his bizarre comment about the Sharia calendar, the Iranian judge seemed to understand that there was a legal problem with executing someone under the age of eighteen. Rather than deny that Iran was required to observe the international norm, he attempted a contrived argument about how years are to be counted. The international norms are in international treaties. At the international level, a year has 365 days.

First Ratification of Amendment to Rome Statute

2011-09-25T18:05:00.002+01:00

Flag of San Marino

The first ratification of the amendment to article 8 of the Rome Statute adopted at the Kampala Review Conference, adding jurisdiction over certain offences committed in non-international armed conflict, has been submitted to the depositary of the treaty, the United Nations Secretary-General by San Marino.
I had initially posted the news that San Marino had ratified the amendments concerning the crime of aggression, but Prof. Bruce Broomhall has corrected me.
I understand that Germany hopes to be the first to ratify the aggression amendments.

Also, the

Maldives

has become the 118^th State Party to the Rome Statute.

Submission to Prosecutor about Sexual Abuse in the Church

2011-09-16T15:01:00.001+01:00

The Centre for Constitutional Rights has made public an application it submitted to the Prosecutor of the International Criminal Court on behalf of the Network of those Abused by Priests, or SNAP. The application requests that the Prosecutor employ his authority under article 15 of the Rome Statute and begin an investigation into sexual abuse of children within the Catholic Church. The charge is that this amounted to a crime against humanity.
Dov Jacobs has quite a thoughtful and thorough discussion of the application on his blog.

Struggling to Find Judges at the ICC

2011-09-16T14:56:00.000+01:00

Yesterday's Financial Times had a front page story entitled 'The Hague Struggles to Find Judges'. It is an astonishing situation. Judges must be nominated by States Parties, and must meet various qualifications including being citizens of a State Party. But States Parties need not nominate their own nationals to be judges. Here are the relevant provisions of the Rome Statute:

Article 36. Qualifications, nomination and election of judges

...

3. (a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

(b) Every candidate for election to the Court shall:

(i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or

(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court;

(c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.

4. (a) Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either:

(i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or

(ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court.

Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3.

(b) Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party.

...

7. No two judges may be nationals of the same State. A person who, for the purposes of membership in the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights.

8. (a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:

(i) The representation of the principal legal systems of the world;

(ii) Equitable geographical representation; and

(iii) A fair representation of female and male judges

(b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.

Cambodia Trial Chamber Rejects Extended form of Joint Criminal Enterprise Liability

2011-09-12T17:55:00.000+01:00

In a ruling issued today, the Trial Chamber of the Extraordinary Chambers of the Courts of Cambodia has held that the extended form of joint criminal enterprise liability (known as JCE III), by which persons who commit a crime with a common purpose are liable for the foreseeable offences committed by their accomplices, even if the offender himself or herself did not intend these crimes, did not form a part of customary international law and was not contemplated by general principles of law at the time of the Khmer Rouge atrocities. I think there is a clear divergence here with the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, which set out the theory of JCE III with reference to post-Second World War jurisprudence. This holding may only be of academic interest, because the main theory of the Prosecutors relies upon a more classic form of complicity known as JCE I. It is only in the alternative that the JCE III theory has been invoked.
Thanks to Robert Petit.

Corporate Liability for Human Rights Violations

2011-09-12T10:48:00.000+01:00

The Middlesex University law department will deliver a 3-day seminar on “Corporate Liability for Human Rights Violations and International Law” in the offices of Amnesty International in Copenhagen (Denmark) on 28-30 October 2011. For more information on this event and on the pioneering MA Human Rights and Business taught 2 days a month in London (UK) please visit http://www.mdx.ac.uk/humanrights (“Special Events” tab) or contact Dr Nadia Bernaz (+44 (0)20 8411 4957 / n.bernaz@mdx.ac.uk).

Economist Online Debate about Peace and Justice

2011-09-11T07:44:00.000+01:00

Richard Dicker of Human Rights Watch writes to announce an online debate concerning peace and justice that The Economist started running this week. Per their Oxbridge debate format, they asked Richard to support the motion 'This house believes that punishing wrongdoers is fundamental to securing lasting peace'. Jack Snyder, the Robert and Renée Belfer Professor of International Relations at Columbia University, is opposing the motion. The debate is being 'moderated' by Bruce Clark. He is one of their correspondents who has written on this topic. The Economist has run several debates for over the last year and they say these 'are often the most popular articles on our site and receive a great deal of reader feedback'. The debate can be found online at www.economist.com/debate.

Honorary Degree Awarded to Kevin Boyle Posthumously

2011-09-11T07:41:00.000+01:00

The late Kevin Boyle was honoured on Friday with the award of an honorary doctorate posthumously by the National University of Ireland Galway. Kevin was professor of law at Galway during the 1980s. He launched the Irish Centre for Human Rights at the time. Members of Kevin's family, including his wife Joan, his sons Steven and Mark, and his brother Louis, were present for the ceremony. There will also be a conference at Essex University in November in his honour.

Universal Periodic Review and the Treaty Bodies: Upcoming Conference

2011-09-11T07:35:00.000+01:00

The Universal Periodic Review Process and the Treaty Bodies is the subject of a conference being organized by the Maastricht Centre for Human Rights, to take place on 25 November 2011. Human rights practitioners, scholars and students are all welcome to participate in this one-day seminar concerning human rights monitoring in the Universal Periodic Review and by treaty bodies. The seminar seeks to assess the contributions of the Universal Periodic Review Process in relation to the monitoring of state human rights obligations by treaty bodies. In addition, this seminar aims to evaluate the contribution of the Universal Periodic Review Process in the broader context of the functioning of international peer-based supervisory mechanisms, including the OECD, IMF, Council of Europe, ILO, EU, WTO and the African Peer Review mechanism.

Confirmed speakers and participants:

Michael O’ Flaherty, Professor of Applied Human Rights and Co-Director of the Human Rights Law Centre, University of Nottingham, and member of the UN Human Rights Committee.
Kees Flinterman, Honorary Professor of Human Rights at Maastricht University and the Netherlands Institute of Human Rights (SIM), and member of the UN Human Rights Committee.
Andrew Clapham, Professor of Public International Law at the Graduate Institute of International Studies.
Marianne Lilliebjerg, Interim Programme Director International Advocacy, Amnesty International.
Thomas Conzelmann, Associate Professor for International Relations and EU External Relations at Maastricht University.
John Morijn, Senior legal adviser, Department of Constitutional Affairs and Legislation at the Dutch Ministry of the Interior and Kingdom Relations, and Assistant Professor of human rights law at Groningen University

The final program and registration information for this seminar will be available on the website of the Maastricht Centre for Human Rights. For further information: j.krommendijk@maastrichtuniversity.nl

Flotilla Report Gives Israel a Pass

2011-09-02T06:28:00.000+01:00

The report by a UN Commission of Inquiry into the conduct of Israel in its attack on the Flotilla on 31 May 2010 will be issued later today. An advance copy has fallen into my hands. By my reading, Israel comes out rather well from the whole business. Some of its actions are judged 'excessive', but in a more general sense its naval blockade of Gaza is endorsed and the behaviour of those who challenged it is condemned.
Here is a summary of the conclusions of the panel:

i. The events of 31 May 2010 should never have taken place as they did and strenuous efforts should be made to prevent the occurrence of such incidents in the future.

ii. The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.

iii. The flotilla was a non-governmental endeavour, involving vessels and participants from a number of countries.

iv. Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade. The majority of the flotilla participants had no violent intentions, but there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH. The actions of the flotilla needlessly carried the potential for escalation.

v. The incident and its outcomes were not intended by either Turkey or Israel. Both States took steps in an attempt to ensure that events did not occur in a manner that endangered individuals’ lives and international peace and security. Turkish officials also approached the organizers of the flotilla with the intention of persuading them to change course if necessary and avoid an encounter with Israeli forces. But more could have been done to warn the flotilla participants of the potential risks involved and to dissuade them from their actions.

vi. Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable:

a. Non-violent options should have been used in the first instance. In particular, clear prior warning that the vessels were to be boarded and a demonstration of dissuading force should have been given to avoid the type of confrontation that occurred;

b. The operation should have reassessed its options when the resistance to the initial boarding attempt became apparent.

vii. Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.

viii. The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.

ix. There was significant mistreatment of passengers by Israeli authorities after the take-over of the vessels had been completed through until their deportation. This included physical mistreatment, harassment and intimidation, unjustified confiscation of belongings and the denial of timely consular assistance.

Moving Day

2011-09-01T15:52:00.001+01:00

Today I have taken up a new full-time position as professor of international law in the Department of Law of Middlesex University in London. The lovely house where Penelope and I lived for more than a decade in Oughterard, and that so many colleagues, human rights activists and students have visited over the years, has been sold, alas. We have moved to much smaller premises in north London, although they have the advantage over our village in the west of Ireland of being somewhat closer to Heathrow airport.
I will continue to be associated with the Irish Centre for Human Rights, as part-time professor of human rights law. At Middlesex, I join a dynamic team of scholars, many of them veterans of the Irish Centre for Human Rights. We offer the full range of university degrees, and are working to build our group of doctoral students who study in the field of human rights.
Confucius said: 'They must often change, who would be constant in happiness or wisdom.'
And Samuel Johnson said: 'Why, Sir, you find no man, at all intellectual, who is willing to leave London. No, Sir, when a man is tired of London, he is tired of life; for there is in London all that life can afford.'

Corporations and the Alien Tort Statute

2011-08-30T19:03:00.000+01:00

Fascinating developments concerning litigation in the United States under the Alien Tort Statute were described at the International Humanitarian Law Dialogs by Prof. David Scheffer, former United States ambassador at large for war crimes issues. David is now a professor at Northwestern University in Chicago.

The Alien Tort Statute is an ancient piece of legislation that gives American courts jurisdiction over violations of the laws of nations committed abroad. It sat dormant for almost 200 years, then was revived in the 1980s by creative human rights lawyers who successfully argued that it could be used to address human rights violations.

The United States Supreme Court is expected to rule in the coming weeks on an application for leave to appeal (known in the

United States

as an application for writ of certiorari) with respect to a suit filed against a corporation. As David Scheffer explained, there have been several cases involving corporations, and there is a ‘circuit split’. Courts of appeal in the United States have reached very different conclusions about legal issues. When there is such divergence, this opens the door to the Supreme Court.

There are two main issues.

The first is whether corporations can be sued at all under the Statute. With rather withering irony, David described how the conservatives on the United States Supreme Court recently upheld the freedom of expression rights of corporations in striking down electoral financing legislation (the Citizens United case). Yet conservative judges in the United States have also given corporations immunity from the Alien Tort Statute. Here they cite international law in support, noting that corporations cannot be prosecuted at the International Criminal Court. David recalled how the same judges regularly refuse to consider international law when it is being invoked in order to strengthen human rights and constitutional guarantees.

The second issue concerns aiding and abetting liability. Some judges have taken the view that aiding and abetting in violations of international human rights law requires both knowledge of the intentions of the actual perpetrator and an intent to commit the crime. Here, reliance is placed upon a rather perverse interpretation of article 25 of the Rome Statute. David, who was the US negotiator at the Rome Conference, knows better than anyone how to apply and interpret article 25. If the intent requirement is upheld, it makes suits against corporations immensely more difficult.

The idea that United States-based corporations can be held accountable in American courts for human rights violations that are related to their foreign activities – torture, child labour, modern forms of slavery, etc. – has huge implications. The debate before the Supreme Court is therefore more than a merely technical one about interpretation of an old piece of legislation.

Progress Report on the International Criminal Tribunals

2011-08-30T19:02:00.000+01:00

Every year in late August, prosecutors from the various international criminal tribunals meet in Chautuaqua, New York, for the International Humanitarian Law Dialogs. These are organized by the Robert H. Jackson Center, which is located in nearby Jamestown, with many other co-sponsors, and take place under the leadership of Prof. David Crane (formerly, prosecutor of the Special Court for Sierra Leone) and Greg Peterson, who directs the Jackson Center. Yesterday’s session had a fabulous briefing on the state of play at the different tribunals, and I thought readers of the blog would appreciate it if I shared my notes of the session.

Serge Brammertz, who is Prosecutor of the International Criminal Tribunal for the former Yugoslavia, was delayed in New York because of travel disruptions related to the hurricane. I expect we’ll get a report from him today.

International Criminal Court. Deputy Prosecutor Fatou Bensouda reported on the ongoing trials, noting that the final arguments in the Lubanga case were made only a few days ago. Ben Ferencz, who prosecuted the Einsatzgruppen case at Nuremberg, made the closing submission for the Prosecutor. Apparently the transcript of the session is already available on the Court’s website.

She reported on the ongoing investigations, noting that there are three additional cases currently being prepared with respect to the Democratic Republic of the Congo (DRC 3, DRC 4 and DRC 5), and that there is also a Darfur 4 case being prepared. She said that investigations are also continuing in the Kenya situation. I note that she said nothing of anything further with respect to Uganda. On various occasions, the Office of the Prosecutor has suggested that their would be cases dealing with the flip side in the Uganda situation – that is, the atrocities perpetrated by the government forces – but that idea seems to have been dropped.

She briefly listed the other situations where some sort of assessment or investigation is underway: Palestine, Korea, Nigeria, Honduras, Afghanistan, Colombia, Guinea and

Georgia

. The Palestine situation is one about which there has been particular interest. Probably the Office of the Prosecutor is awaiting the results of the General Assembly debate on Palestinian statehood, likely to take place in the coming weeks.

International Criminal Tribunal for the former Yugoslavia. Serge Brammertz, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, spoke of the importance of the recent arrests of Mladic and Hadzic. With that, the Tribunal has ticked off all the boxes on its most wanted list. Now it has to finish the trials and the appeals. Serge said that there was enough work for four to five years. He spoke of the importance of the Residual Mechanism. The real challenge for the future, he said, was to ensure that national trials continue in the region of the former Yugoslavia.

International Criminal Tribunal for Rwanda. Late last year, James Arguin took on the position of chief of appeals at the Rwanda Tribunal. He said that judgment in ten cases now underway should be delivered by the end of 2011, but that there would probably be some ‘spillover’. He said the current plan is to complete the appeals process by 2013, with final judgments in the appeals delivered in 2014. That will, effectively, shut down the tribunal.

There are nine fugitives who have been indicted but not apprehended. Jim said that they are now beginning the process of preparing evidence for eventual trials of these people. This involves taking depositions from witnesses. He said ‘some of the kinks are being worked out’ in the process and that it is ‘going very well’. He also spoke of the recent referral decision, in which a Chamber agreed to send a case back to Rwanda for trial. This is now on appeal, with a decision expected from the Appeals Chamber in October.

He spent a few minutes speaking about employment opportunities at the Tribunal. Because the activities are winding down, many of the current staff are leaving as they find more permanent jobs. But that opens up a number of vacancies. Young graduates, and also many more seasoned professionals, often ask me how to break into the system. It seems to me there is a great opportunity to do this now, given the staffing difficulties that the Rwanda Tribunal – and the others, too – are likely to encounter as they complete their work. Of course, the job won’t last that long, but it will provide a great chance to get one’s foot in the door.

Special Court for Sierra Leone. Jim Johnson, who is chief of prosecutions with the Special Court, said that judgment in the Charles Taylor case is expected in the ‘near future’. He said the Trial Chamber will probably announce the date of the judgment very soon. There will be an appeal, of course, but the final ruling ought to be issued by April 2012.

Jim explained that the ‘Residual Special Court’ will take over, pursuant to an agreement between the UN and the Government of Sierra Leone that is still awaiting ratification by the latter. It will be located in The Hague, with a small operation in Freetown. The Residual Special Court will be funded by voluntary contributions, which may not be a simple matter, given that it will last for many, many years.

He also spoke of the ongoing contempt prosecutions.

Extraordinary Chambers of the Courts of Cambodia. The international prosecutor, Andrew Cayley, spoke of the appeal of the decision in the first prosecution, where the Prosecutor is seeking a life sentence. Last year, Duch was sentenced to 35 years, minus 5 years because of irregular pre-trial detention, and then many years to take into account his lengthy pre-trial detention.

The second trial, now being prepared, involves four senior leaders of the Khmer Rouge. Only yesterday, it became clear that proceedings against one of them, Ying Tarit, are likely to be stayed because she is unfit to stand trial as a result of Altzheimer’s disease.

Two other trials, 3 and 4, are being planned. Andrew had little to say about them, aside from a rather ominous comment: ‘I have learned to cherish my own legal system’. The implication was that political factors within Cambodia are preventing any progress on these two trials.

Special Tribunal for Lebanon. Daryl Mundis represented the Prosecutor of the Special Tribunal for Lebanon. He reported on the indictment of the four Hezbollah members. He explained how two of them are being charged for organizing a bogus story attempting to pin the blame on a fictional terrorist group. I was intrigued by this, because covering up a crime might be considered a kind of ‘complicity after the fact’. While punishable in a general sense, it is not obvious that this falls within the jurisdiction of the Tribunal.

Daryl described the current proceedings, which involve a declaration by Lebanon that it is unable to arrest the suspects, and then a public announcement informing the accused of the charges and inviting them to appear. These steps are preparatory to an in absentia trial. The Prosecutor is proceeding on this basis, and an application to hold such a trial is to be expected soon. Defence teams will be appointed, so the trial itself may be quite long, with evidence called on both sides.

The Prosecutor is investigating related terrorist attacks that took place in late 2004 and 2005. These need to be linked with the February 2005 bombing. A recent ruling suggests that the Prosecutor can satisfy the Tribunal of such a connection. The idea would be to prepare charges in these related cases, and then link them to the main trial.

Human Rights Council Resolution on Syria

2011-08-24T06:35:00.001+01:00

Yesterday, the Human Rights Council voted to establish a commission of inquiry into human rights violations in Syria. Here is the press release issued by the Office of the High Commissioner for Human Rights:

The Human Rights Council concluded its seventeenth Special Session, which was convened yesterday and was devoted to “the situation of human rights in the Syrian Arab Republic”. The Council adopted a resolution that requires an independent international commission of inquiry to be dispatched to the country to investigate all allegations of violations of international human rights law committed by the Syrian Arab Republic since March 2011, to establish the facts and circumstances of these crimes and violations, and if possible to identify those responsible and ensure that perpetrators are held accountable for their actions.In the resolution, the Council expressed deep concern at the findings of the fact-finding mission established by the Office of the High Commissioner pursuant to resolution S-16/1, adopted in April after the last Special Session on Syria. These findings included violations of human rights that could constitute crimes against humanity. The Council strongly condemned the serious, systematic and continuing human rights violations by Syrian authorities, including arbitrary executions, excessive use of force and deadly violence against protesters and human rights defenders, enforced disappearances, arbitrary detention, and torture and ill-treatment of detainees, including children.At the opening of the Special Session yesterday afternoon, Navi Pillay, the High Commissioner for Human Rights, presented the report of the fact-finding mission established by the High Commissioner at the request of the Council to investigate allegations of violations of human rights in Syria, including systematic and widespread human rights violations by military and security forces. The Office of the High Commissioner believed that these actions, by their nature and scope, could constitute crimes against humanity. Juan Mendez, the Special Rapporteur on torture, in a video message delivered on behalf of all Special Procedures mandate holders, said that they feared the threshold of widespread and systematic violence had been reached.Speaking as a concerned country, Syria said that the government had responded accurately to information requests from the High Commissioner and expressed regret that these responses were not included in the report, which lacked credibility. The delegation said that nonetheless, Syria would allow the mission from the Office of the High Commissioner to visit the country as soon as the Syrian independent commission had completed its own investigation.

The vote was 33 in favour, with four against (China, Russia, Ecuador and Cuba), and nine abstentions. Arab member states in the Council voted in favour of the resolution (Jordan, Kuwait, Qatar and Saudi Arabia). For the speeches in the Council, click here.

Joseph Rikhof Successfully Defends Doctoral Thesis on Exclusion of Refugees

2011-08-23T06:14:00.002+01:00

From left, myself, Joe Rikhof, Prof. Guy Goodwin-Gill and Dr. Shane Darcy

Joseph Rikhof yesterday defended his doctoral thesis entitled 'The Relationship between Refugee Exclusion Law and International Law: Convergence or Divergence?' at the Irish Centre for Human Rights. The thesis deals with the exclusion clauses in the 1951 Refugee Convention, and particularly emphasises the relationship with international criminal law. The research was supervised by Dr Shane Darcy, who is himself a graduate of our doctoral programme, a first for the Irish Centre for Human Rights. The examiners were Professor Guy Goodwin-Gill of All Souls College, University of Oxford, who is one of the pre-eminent academics in the field of refugee law, and myself. Joseph has worked in the area of immigration law and war crimes within the Canadian government for many years and has many important publications. I note with some pride that he is the fourth Canadian to complete a doctoral thesis at the Irish Centre for Human Rights this year.

Congratulations, Joe, on this achievement.

Syria Report of High Commissioner Documents Crimes Against Humanity

2011-08-18T14:50:00.000+01:00

The Report of the Office of the High Commissioner for Human Rights on Syria was issued yesterday. In paragraph 72, it states: ‘The Mission found a pattern of human rights violations that constitutes widespread or systematic attacks against the civilian population, which may amount to crimes against humanity as provided for in article 7 of the Rome Statute of the International Criminal Court.’ The Report was made at the request of the Human Rights Council. It recommends that the Council:

‘Urge the Security Council to remain seized of, and address in the strongest terms the killing of peaceful protestors and other civilians in Syria through the use of excessive force and other grave human right violations; to call for an immediate cessation of attacks against the civilian population; and to consider referring the situation in Syria to the International Criminal Court.’

The Report notes that Syria signed the Rome Statute, although it has not ratified the instrument.

Prosecutor Seeks to Hold Trials of Mladic

2011-08-18T12:31:00.000+01:00

The Prosecutor of the International Criminal Tribunal for the former Yugoslavia has applied to hold two separate trials on Ratko Mladic, based upon the two distinct indictments. Mladic and Karadzic were initially charged in 1995 with responsibility for a range of offences committed during the war in Bosnia and Herzegovina. They were subsequently charged in a separate indictment for the Srebrenica massacre of July 1995. According to a newspaper account, the Prosecutor hopes to proceed with the Srebrenica count alone and obtain a conviction our of concern that Mladic may die during a lengthy trial.
Dov Jacobs has made some very thoughtful analysis of this on his blog.
I have always felt that the narrative that has emerged from the Yugoslavia Tribunal about genocide charges suffered from a degree of incoherence. In effect, the judges have held that the conflict was not, in a general sense, 'genocidal'. This was confirmed in the judgment of the International Court of Justice in the case of Bosnia v. Serbia. But with respect to the Srebrenica massacre, there have been convictions for genocide, and Mladic himself has been blamed for the crime in some of the rulings although he has yet to be tried or convicted. I was always troubled by the idea that this was a war that was not genocidal in nature but in which there was a brief genocidal episode. It would have been better either to conclude that the war was genocidal in a general sense, or rule that it was not and then extend the logic to Srebrenica too.
By severing the two indictments for the purpose of the trial, the Prosecutor is adding an interesting twist to this. In a sense, it confirms the view that the Srebrenica massacre was somewhat of an anomaly rather than an event that was emblematic of the conduct of one side in the war.

Ruling on Maternal Health Care by Committee on the Elimination of Discrimination Against Women

2011-08-17T06:34:00.000+01:00

The United Nations Committee for the Elimination of Discrimination Against Women issued an important decision last week confirming the right of all women, regardless of income or racial background, to timely, non-discriminatory and appropriate maternal health services. The case was filed against Brazil on behalf of Alyne da Silva Pimentel in accordance with the Protocol to the Convention. Alyne da Silva Pimentel was a 28-year-old Afro-Brazilian woman who died in 2002 after being denied basic medical care to address complications in her pregnancy.

The litigation was undertaken by the Center for Reproductive Rights. For more information, click here.

Thanks to Janna Chan.

London Riots: Were they Crimes Against Humanity?

2011-08-15T06:43:00.000+01:00

Readers of this blog will know that I am not an enthusiast for expansive approaches to crimes against humanity. I have written on several occasions criticising the very broad interpretation given to crimes against humanity by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia when it said that no plan or policy was required as an element of the crime. The concern was that without such an element, a range of acts committed by gangsters, motorcycle gangs, serial killers and the like would be encompassed within the definition. Proponents of a broad interpretation want to use it to include terrorists. And recently, I wrote about the attempts to label the recent terrorist killings by an insane individual as crimes against humanity.
Certainly, according to the definition adopted by judges at the International Criminal Tribunal for the former Yugoslavia, the recent riots in London would meet the terms of crimes against humanity.
At the International Criminal Court, things are slightly different. There, article 7(2)(a) of the Rome Statute requires that crimes against humanity be perpetrated as part of a 'state or organizational policy'. Academics such as Cherif Bassiouni have argued - correctly, to my mind - that the word 'organizational' must be read in its context. It is not a general invitation to include any form of organized criminal activity. Rather, the organization in question must be either part of the state or 'state-like', in the sense of association with an entity that behaves like a state, that controls territory, etc. But fans of the broad approach argue that the term 'organizational' means that the Statute is not confined to acts perpetrated by a State or state-like entity. They want the Rome Statute to be as extensive as the case law of the Yugoslavia Tribunal.
The first serious interpretation of this provision by the International Criminal Court has arisen in the Kenya situation. It deals with post-electoral violence. In the initial decision authorising the investigation, Judge Hans-Peter Kaul wrote a very compelling dissenting opinion in which he insisted that such acts did not belong within the scope of crimes against humanity. He referred to the historical origins of the term crimes against humanity, and the need for the term to be focussed on the state.
But Judge Kaul was overruled by the majority, which leaned towards the more expansive view. At the extreme, this takes crimes against humanity to mean all organized acts that are not random. Ultimately, the gangs and serial killers fall within the net.
And that would mean that those involved in the London riots are also perpetrators of crimes against humanity. There may be some distinctions between the post-electoral violence in Kenya and the London riots, but they are nuances, matters of degree. One cannot draw a bright line between them.
It will be argued that in any event the British justice system is dealing very aggressively with the London violence, and that as a result the crimes would not be subject to prosecution on the basis of complementarity. The British justice system is 'willing and able' to bring those responsible to justice.
But here we encounter another problem with the way the Rome Statute is being applied. The judges at the International Criminal Court have tended to an analysis whereby it is not adequate that perpetrators be tried for any crime in order for complementarity to be addressed. The theory is that they must be tried for the precise crimes under the Rome Statute. Otherwise, the terms of the Statute are not respected and the case is admissible. In the first case, Lubanga, the accused was being prosecuted for serious crimes in the Congo, but he was not being prosecuted for recruiting child soldiers. As a result, the Court said the case was admissible.
Are any of the teenage hoodlums in London being prosecuted for crimes against humanity? Is Britain failing in its duty to adequately describe the nature of the crimes - and thereby deprive victims of the justice they are entitled to - by labeling the acts using ordinary criminal classifications, such as assault, mischief, theft, arson, vandalism and so on?
And what about the gravity threshold? Again, the analysis of the Prosecutor is so nebulous as to make it a flexible tool capable of describing virtually anything as sufficiently serious (or not). No doubt he will answer that the London riots are nut sufficiently serious to meet the gravity threshold.
This would make a good exam question. 'Explain why, in light of the case law of the International Criminal Court, the teenage (over 18) perpetrators involved in the August 2011 riots in London, should not be charged by the Court for crimes against humanity.'
Of course we all know that riots in Nairobi and riots in London are not the same thing. Should anyone be surprised that so many Africans think the Court is focusing its attention unfairly on their continent.

How the Americans Murdered Bin Laden

2011-08-05T11:30:00.000+01:00

The current issue of the New Yorker contains an article explaining how Osama Bin Laden was murdered. Here is the heart of the account:

The Americans hurried toward the bedroom door. The first SEAL pushed it open. Two of bin Laden’s wives had placed themselves in front of him. Amal al-Fatah, bin Laden’s fifth wife, was screaming in Arabic. She motioned as if she were going to charge; the SEAL lowered his sights and shot her once, in the calf. Fearing that one or both women were wearing suicide jackets, he stepped forward, wrapped them in a bear hug, and drove them aside. He would almost certainly have been killed had they blown themselves up, but by blanketing them he would have absorbed some of the blast and potentially saved the two SEALs behind him. In the end, neither woman was wearing an explosive vest.
A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye. On his radio, he reported, “For God and country—Geronimo, Geronimo, Geronimo.” After a pause, he added, “Geronimo E.K.I.A.”—“enemy killed in action.”

Read the full account here. International human rights law, American law, the American constitution, and Pakistani law all required that he be arrested and brought to justice. Nuremberg's great achievement was to move humanity beyond this barbarism.

African Union and the International Criminal Court

2011-08-05T10:03:00.000+01:00

James Nyawo has published a fine article on the African Union and its attitude to the International Criminal Court on Juris.

New General Comment on Freedom of Expression Deals with Denial Laws

2011-08-03T18:51:00.000+01:00

The long-awaited General Comment 34 of the Human Rights Committee on freedom of expression was adopted at its recent session. It replaces the very laconic General Comment 10, which was adopted back in 1983, and consisted of four paragraphs.
There is much of interest in the new Comment, reported drafted by the Irish member, Michael O'Flaherty. there is a short explanation of it by Michael on YouTube.
It deals rather briefly with legislation that has been adopted in many countries dealing with denial of historical events like the Holocaust and the Armenian genocide. Paragraph 49 of the General Comments says: 'Laws that penalise the expression of opinions about historical facts (fn 166) are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.' Footnote 116 says 'So called “memory-laws”, see Faurisson v. France, No. 550/93.'.
Faurisson v. France is the case examined by the Committee in 1996 in which it upheld the conviction of a French pseudo-historian who was convicted of an offence of denying the Holocaust.
Does this mean the views of the Committee have shifted, and that the opinion it earlier expressed that seemed to accept the validity of such legislation has been reversed?
The General Comment also considers blasphemy legislation. At paragraph 48, it says: 'Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.' Article 20(2) of the Covenant states: 'Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.' This means that one can show disrespect for a religion or other belief system' as long as it does not constitute incitement to discrimination or hostility. It looks like a hard line to draw in practice.

Britain, France Flirting with Letting Gaddafi Avoid Prosecution by the ICC

2011-07-28T06:21:00.001+01:00

There are reports that both Britain and France are toying with the possibility of a peace plan in Libya by which Gaddafi will leave power but not be brought to justice before the International Criminal Court. Last month, a Pre-Trial Chamber issued an arrest warrant against Gaddafi for crimes against humanity and war crimes.

On Monday, the British Foreign Secretary, William Hague (don’t confuse him with The Hague) said a political settlement was being considered by which Gaddafi would relinquish power but remain in Libya.

‘What happens to Gaddafi is ultimately a question for the Libyans’, Hague said. ‘It is for the Libyan people to determine their own future. Whatever happens, Gaddafi must leave power.’

France has made similar declarations.

Hague was apparently building upon a statement from Mustafa Abdul Jalil, president of the rebel national transitional council, who said that Gaddafi could remain in Libya if he left power.

But Florence Olara, who is spokesperson for the Prosecutor of the International Criminal Court, said: ‘Any negotiation or deal has to respect (UN Security Council resolution) 1970 and the ICC's decision’.

And so we return to the peace and justice conundrum that has troubled the International Criminal Court since it began prosecutions in 2005. Indeed, it is an issue that all international tribunals dealing with crimes committed in ongoing conflicts have had to confront. To what extent can justice be sacrificed to peace?

Impunity for Gaddafi in exchange for peace and democracy in Libya seems a small price to pay. Some think it an unconscionable transaction, but I wouldn’t agree, and I am sure that the people of Libya don’t either.

Gaddafi may look to the example of Charles Taylor, who was also promised a ‘get out of jail free’ card in exchange for leaving power. The peace deal that ended the conflict in Liberia included a promise that Taylor could live in exile in

Nigeria

. But states reneged on the deal. Gaddafi may be mad but he’s not stupid.

The questions raised by this problem were hotly debated in 2006-2007 after the arrest warrants were issued against leaders of the Lord’s Resistance Army in

Uganda

. The threat of prosecution brought them to peace negotiations, and an end to the war seemed within reach. But when the rebel leaders demanded that the charges be dropped, the ICC Prosecutor answered that this was impossible. The peace settlement collapsed. The rebels refused to sign the agreement. The Lord’s Resistance Army are still out there, although conflict in northern Uganda has abated, possibly only temporarily. Then, the African Union demanded that the Court back off from proceeding against the president of Sudan for similar reasons. The Prosecutor answered that it could not do so, and that the way to block prosecution was through a Security Council resolution.

What is so significant about the latest development in Libya is that it indicates that two of the strongest supporters of the Court – Britain and France – do not see international justice as an absolute. It is something to be balanced with the imperatives of ending armed conflict. They had hinted at such a view in 2008 at the time of the application for the Bashir arrest warrant. But the United States, which had become ‘more Catholic than the Pope’, insisted this would damage the integrity of the Court and pledged to veto any resolution of the Security Council intended to suspend or block the prosecution of Bashir.

There are extreme views on both sides of this debate. Among supporters of the International Criminal Court, the prevailing opinion is that expressed by the Office of the Prosecutor. The theory behind this is developed in the Prosecutor’s paper on ‘interests of justice’ where he says that the decision to temper justice so as to promote peace should be made outside the Court, at the Security Council.

There is a difficulty with this ‘division of labour’ approach to the peace and justice problem. Much of the enthusiasm for the International Criminal Court has been driven by the desire of states to create an institution that is not subservient to the Security Council. Article 16, which is the provision by which the Court acknowledges the authority of the Council to block prosecution, was an ugly compromise. Most states – and certainly almost all states from the Global South – would have been delighted to eliminate article 16 altogether.

But in his ‘interests of justice’ paper, the Prosecutor said that the way to deal with peace is through article 16 of the Rome Statute. I believe that this philosophy does not sit well with many states, and that it helps explain the unhappiness with the Court that we have seen in Africa in recent years.

Can what the British and French (and the rebel leaders) propose be done lawfully? Libya is not ordinarily under an obligation to cooperate with the Court, because it is not a party to the Rome Statute. As I understand the position of the British Foreign Secretary, as long as Gaddafi remains in Libya there is no obligation for it to surrender him to the Court. But Resolution 1970, by which the Libya situation was referred to the Court (in accordance with article 13(b) of the Rome Statute), states:

5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

The reference to ‘States not party to the Rome Statute’ means the US, China, Russia and so on, but not Libya, as I understand it, because of the first phrase in the paragraph.

Of course, the Security Council could revoke the resolution, of course. That would be a terrible blow for the Court, however. This is the dilemma created by the Prosecutor’s approach to the peace/justice relationship. Assigning the ‘peace’ component to the Security Council has the consequence of subordinating the Court to the Council, and this is not in the best interests of the institution. It would be better if the Court could offer a comprehensive, holistic approach to peace and justice. The Prosecutor should use the powers granted by article 53 of the Rome Statute to agree to withdraw from a situation when this is in the interests of peace. He has no need of the Security Council. In the long run, this will protect and promote the Court, and ensure that the broad support it has enjoyed throughout the world will continue.

Was the Norwegian Attack 'Muslish'? See Steven Colbert

2011-07-27T05:54:00.000+01:00

One of America's sharpest political satirists, Steven Colbert, has taken a wonderful shot at journalists who were anxious to pin the blame for the Norwegian terrorist attacks on Muslim extremists. See here.
Thanks to Elizabeth Zitrin for the Colbert link, and to David Scheffer, who took the photo.

Colbert, myself, my daughter Marguerite and my grandson Thomas last month at Northwestern University in Chicago, where we were both awarded honorary doctorates.

Crimes Against Humanity in Norway?

2011-07-26T13:32:00.000+01:00

There are news reports that prosecutors in Norway are contemplating prosecuting Anders Behring Breivik, who was responsible for the bombing and mass murder that took place a few days ago, for crimes against humanity.
Norway's own domestic legislation may be sufficiently large that such acts are covered. To the extent that it is drawn from international law sources, the issue will be the source.
If the Norwegian legislation follows the text of the Rome Statute, it would seem unlikely that the recent atrocities fit within the definition. Not only does article 7 of the Rome Statute require that the crimes be part of a 'widespread or systematic attack on a civilian population', the attack must be 'pursuant to a state or organizational plan or policy'.
It might be argued that Breivik was acting pursuant to the plan of some organization. That, in turn, raises the issue of the nature of the organization. Last year, a Pre-Trial Chamber of the International Criminal Court divided on this issue. The majority interpreted the concept broadly enough so that it could encompass the post-electoral violence in Kenya. In dissent, Judge Hans-Peter Kaul reviewed the historical sources and held that the 'organization' in question must be affiliated with a State or State-like entity.
If the Norwegian legislation departs from the text of the Rome Statute and has no reference to State or organizational policy, the issue will remain as to whether the State or organizational plan or policy is a requirement that is implied within the general notion of crimes against humanity. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has said that it is not. See Kunarac, para. 98, fn. 114.
But the discussion of this issue by the Appeals Chamber in Kunarac is decidedly unsatisfactory. It lists several sources that it says support such a conclusion. But on examination, these sources do not bear out the interpretation given by the Appeals Chamber. For example there is an inaccurate reference to the International Law Commission report of 1954. The Appeals Chamber said it provided support for the exclusion of a policy component. In fact, after lengthy consideration, the Commission decided to include such an element. The Chamber also invokes an Australian precedent. But the Australian precedent does nothing more than cite an academic journal article published in 1946 that apparently explains the fallacy of a judgment issued in 1948. I don't know how that could happen.
In my opinion, the better view is that crimes against humanity under general international law should be applied in a manner consistent with the Rome Statute, rather than in the broader approach taken by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. In other words, unless the Norwegian legislation expressly rejects the policy element, which seems unlikely, then Norway's judges should read this into the definition.
Such a result is likely to disappoint some, who will be excited at the idea that an insane, neo-fascist terrorist is being prosecuted for crimes against humanity. And I'll not be surprised if someone writes me in the next day or two asking if it might be genocide. After all, the perpetrator seems to have been intending to destroy his political opponents. Last week, in Buenos Aires, I heard a judge explain that genocide was really meant to encompass political groups as well as national, ethnic, racial and religious groups, and for that reason he had issued a ruling that condemned torturers in the Argentinian military for genocide. As a fallback argument, weren't all of the victims Norwegian? So he was trying to destroy a national group 'in part'.
But as explained above, rather than search for technical literal interpretations that generate extravagant results, we are better to interpret the definitions of international crimes in their context, and with an eye to their origins. Above all, we should consider the purpose of international criminalization.
A good test in this respect is to question whether there will be impunity. When crimes are committed as a result of state policy, generally there is impunity, and for obvious reasons, unless there has been a change in regime. Of course, crimes like those perpetrated in Norway will certainly not go unpunished. There will be no need for universal jurisdiction, or international tribunals, or truth commissions, or labels like jus cogens and erga omnes, or joint criminal enterprise or co-perpetration. They are multiple murders and I am sure that the perpetrator will go to jail for a very long time. Unless of course he is deemed to be insane, which is not entirely improbable. In that case, he'll be put in secure confinement until he has recovered. Justice will be done, and without the need for international law. My advice to the Norwegian prosecutor would be to stick to the ordinary criminal code, which has everything that is needed to deal with this tragic situation.

Thanks to Evelyne Schmid.