CIA Renditions, Security Council Blacklists

I spent yesterday attending a fascinating conference in Athens on human rights and counter-terrorism measures, jointly organised by the Parliamentary Assembly of the Council of Europe and the Marangopoulos Foundation for Human Rights (http://www.mfhr.gr/?ln=1). The stars of the conference were the Swiss senator, Dick Marty, and his key researcher, Gavin Simpson (who, incidentally, worked with me on the Sierra Leone Truth and Reconciliation Commission, where he was as indispensable to our activities as he has been to Senator Marty.
The two of them described their fascinating detective work, tracing the rendition flights throughout Europe with the help of a network of plane-spotters and more than a few ‘whistle-blowers’. It is an amazing dimension of human rights work that we rarely hear about. The very detailed and convincing reports that they prepared are available on the website of the Parliamentary Assembly: http://assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView.asp?ID=2974.
The afternoon session, at which I spoke, focused on the issue of blacklists. These are authorised by the Security Council, in a series of resolutions, which pretty much puts them out of the reach of judicial review. According to Senator Marty, everyone on the blacklists is a Muslim. The consequence of being put on a blacklist is that your assets are frozen, and you cannot travel. Senator Marty has also done a great report on this subject, which reviews the frustrating attempts to convince courts to step in and impose a bit of rule of law on the UN Security Council: http://assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView.asp?ID=3507.
Gavin is now based in New York, where he is working as a consultant for One World Research, which says it conducts ‘public interest investigations and human rights research: http://www.oneworldresearch.com/about.html.

Dr David Keane: Yet another book award for ICHR PhD graduate

Dr David Keane, who is now a lecturer at Brunel University, was awarded the book prize of the Socio Legal Studies Association at its 2008 Conference dinner in Manchester Town Hall last Wednesday night. David's book, Caste-Based Discrimination in International Human Rights Law, was published last year by Transnational Publishers. It is based on his thesis at the Irish Centre for Human Rights, which was supervised by Prof. Joshua Castellino. Several of our students participated in the Conference, presenting papers on their own research, and they were on hand to congratulate David for this great achievement. David was one of our first LLM students, and he continued on to do a PhD with us. Bravo, David!

Darfur, Uganda, Conflict and the International Criminal Court

The Royal African Society has published a very interesting collection of papers on the activities of the International Criminal Court in Africa: http://www.royalafricansociety.org/documents/Courting_Conflict-Justice_Peace_and_the_ICC_in_Africa.pdf.
Thanks for this to Paul Williams and Fannie Lafontaine.

Easter Break in Cyprus

Well, it isn’t really Easter in Cyprus (the Greek Orthodox Easter comes in late April this year), but at least a few people from Ireland took the opportunity for a vacation break. Here I am with my family in the mountain village of Arsos, where my father in law was born more than 90 years ago. That’s him on the left, in the house where he grew up and where we stay when we visit, together with my wife Penelope, myself, our daughter Marguerite and our eight-month old grandson Thomas William (Tommy). The fellow with the tie is our neighbour, Irish Senator David Norris, who owns a home in Arsos a few streets away (there only are a few streets in Arsos).

Bush Lost this Case, Unfortunately…

Yesterday, the United States Supreme Court ruled in favour of Texas and against the federal government in a case involving the implementation of the judgment of the International Court of Justice known as the Avena case (http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=18&case=128&code=mus&p3=4). Avena was the third such application to the International Court of Justice on behalf of foreign nationals who had been sentenced to death in the courts of the United States without having received the notice of their entitlement to consular assistance, something required by international treaty. Some US states have taken the view that the judgment of the International Court of Justice does not bind them, and the Supreme Court of the United States has backed them up.
According to an editorial in the Wall Street Journal: ‘Devotees of using foreign law to overrule American politicians will squawk. But the Medellín majority has delivered a victory for legal modesty and the U.S. Constitution.’ (see: http://online.wsj.com/article/SB120649157469864165.html?mod=googlenews_wsj).
I never thought I would be upset if Bush lost a case in court but, as Yogi Berra once said, ‘never say never’.
For more on this, see the symposium of the Suffolk Transnational Law Review: http://www.law.suffolk.edu/highlights/stuorgs/transnat/symposium.cfm. The articles were written before the judgment, and with a view of perhaps influencing the thinking of the Court. Unfortunately, the Court moved more quickly than the journal.

Genocide of Australia’s ‘lost generation’

Readers of this blog know that I am not particularly tolerant of extravagant use of the term ‘genocide’. For several years, a debate has been underway in Australia as to whether the ‘g-word’ should be used to describe the forced transfer of aboriginal children to families of European origin. Australians call this the ‘lost generation’. Thanks to Sophie Cacciaguidi-Fahy for this recent account in an Australian newspaper: http://www.theaustralian.news.com.au/story/0,25197,23421344-2702,00.html. In principle, the Genocide Convention excludes acts of ‘cultural genocide’, that is, acts falling short of the physical extermination of a group. But there is one exception, the ‘forced transfer of children from one group to another’. The words of the Convention bear a striking resemblance to what happened in Australia. The real issue, then, is whether this was done with ‘intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such’. In my view, the Australian debate is certainly not one belonging to the frivolous category of allegations of genocide.
There are Australian cases on this issue: Nulyarimma v. Thompson, [1999] FCA 119; Kruger v. Commonwealth (‘The Stolen Generations Case’), (1997) 190 CLR 1. And quite a body of academic literature: Ben Saul, ‘The International Crime of Genocide in Australian Law’, (2000) 22 Sydney Law Review 527; Andrew Mitchell, ‘Genocide, Human Rights Implementation and the Relationship Between International and Domestic Law’, (2000) 24 Melbourne University Law Review 15; Sean Peters, ‘The Genocide Case: Nulyarimma v Thompson’, [1999] Australian International Law Journal 233; Sarah Joseph, ‘Kruger v Commonwealth: Constitutional Rights and the Stolen Generations’, (1998) 24 Monash Law Review 486; Michael Schaefer, ‘The Stolen Generations -- In the Aftermath of Kruger and Bray’, (1998) 21 University of South Wales Law Journal 247; Tony Buti, ‘Kruger and Bray and the Common Law’, (1998) 21 University of South Wales Law Journal 231; Matthew Storey, ‘Kruger v The Commonwealth: Does Genocide Require Malice?’, (1998) 21 University of South Wales Law Journal 224.
We’ll be discussing this and other related questions at our annual doctoral seminar, which begins next Monday at the Irish Centre for Human Rights.

Universal Periodic Review Set to Begin

I am in Geneva today, attending the Human Rights Council session. Something very exciting is about to begin. I am referring to the Universal Periodic Review process, which was originally called for by Kofi Annan in his report entitled In Larger Freedom.
A first group of countries, including India, the UK, Bahrain and others is scheduled to begin presenting their reports as part of the Universal Periodic Review process in two weeks. Check out the website for this: http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx.
The country itself submits a report. The Office of the High Commissioner prepares a brief compilation of UN materials on the country, including material from the special rapporteurs and so on. And they also prepare a 'stakeholders' summary, which is UN speak for what we mere mortals know as non-governmental organisations (well, it includes national commissions too). All of it is available on the website. I am told that they also post the submissions by NGOs, but I couldn't find this.
These documents constitute a fabulous resource for studying the human rights situation in a given country. Over the next four years, every State will have to submit. The basis is human rights obligations in the UN Charter, the Universal Declaration of Human Rights and specific treaties. Which means just about everything. In other words, the US will have to talk about economic and social rights (even though it has refused to ratify the International Covenant on Economic, Social and Cultural Rights), and China will have to talk about the death penaltz (even though it has not ratified the International Covenant on Civil and Political Rights).
The next big step is the actual presentation of the reports, which will be shown live on the UN website. We will see how robust the discussion is, and whether it really puts the country on the spot. When the UK comes up, on 10 April, the test will be to see whether it makes the first few pages of The Guardian and The Times. We will expect to see the government being grilled about using Diego Garcia and other places for CIA rendition flights. There is no issue of jurisdiction, really, although I'd be surprised if anyone asks the British about Iraq.

Seromba Overturned on Appeal, but Where is the Trial Chamber Judgment?

Last week, the Appeals Chamber of the International Criminal Tribunal for Rwanda granted the prosecution appeal in the case of Athanase Seromba. Seromba was a priest who had participated in the massacre of several thousand Tutsi, who had sought refuge in his church. He encouraged a bulldozer operator to knock down the church, with the victims inside. But Seromba was only convicted for 'aiding and abetting' genocide, and he received a relatively short custodial sentence from the Trial Chamber.
The Appeals Chamber changed the conviction, describing Seromba as 'committing' the crime and not just 'aiding and abetting'. It also upped the sentence to life imprisonment.
I had looked regularly on the website for the Trial Chamber decision since it was issued in 2006, as part of research for the second edition of my book Genocide in International Law, due to appear later this year. But it has never appeared on the website. This week, in The Hague, I picked up rumours to the effect that the Trial Chamber judgment was not posted on the Tribunal website out of deference to the Church, which is shocking. It seems that the Roman Catholic Church, embarrassed by the role of one of its priests in the Rwandan genocide, attempted to pressure the Tribunal in various ways, including by directly contacting judges of the Tribunal. I cannot prove this. But the Trial Chamber judgment in Seromba remains unavailable. I believe it is the only judgment of any of the three ad hoc United Nations tribunals that cannot be obtained on the official website. In the absence of any other explanation, I am inclined to accept the version from The Hague rumour mill. Seromba fled RWanda following the genocide, and was arrested at the requestn of the Tribunalin Florence, Italy.
A couple of legal notes of interest. This is the first judgment of the Appeals Chamber to clarify the scope of the term 'committing'. The judges give it a very broad meaning. This is in line with some case law that uses the term 'co-perpetration', rather than the controversial 'joint criminal enterprise'. This debate is not directly refelcted in the judgment, which avoids the troublesome terminology. But it is implicit in the ruling. The Appeals Chamber decision increases the gravity of the conviction as well as the sentence. The President of the Tribunal, Fausto Pocar, has frequently criticized this as inconsistent with human rights standards. According to President Pocar, because there is a right to appeal a conviction, the Appeals Chamber cannot 'convict'; rather, it should remit such cases back to the Trial Chamber for a new ruling. President Pocar, who served for many years as a member of the United Nations Human Rights Committee, did not participate in the Seromba decision.

Drugs and human rights

Rick Lines, a Galway alumnus who is senior policz advisor at the International Harm REduction Assocaition, reports on activities at the United Nations Office on Drugs and Crime. At the 51st session of the UN Commission on Narcotic Drugs (CND) in Vienna, the head of the ODC, Antonio Maria Costa, spoke out against the death penalty in his opening address: http://www.ihrablog.net/2008/03/cnd-day-1-unodc-chief-calls-for-end-to.html
Rick's organisation was very active in pressing the first ever human rights resolution through the Commission on Narcotic Drugs. Rick says unfortunately much of the decent language in the original draft (including a death penalty reference) was eventually stripped out or watered down before it was approved: http://www.ihrablog.net/. Rick addressed the full plenary session and discussed human rights issues: http://www.ihrablog.net/2008/03/cnd-day-2-ihra-speaks-on-human-rights.html.

Michael Kearney awarded Lieber Prize Certificate of Merit bz ASIL

Dr Michael Kearney, who completed his doctorate with us and is now a lecturer at the University of York, has been awarded one of two Certificates of Merit as part of the Lieber Prize of the American Society of International Law, for his book The Prohibition of Propaganda for War in International Law (Oxford University Press, 2007). The book is based on his doctoral thesis. It has a preface by Judge Richard Goldstone (who will be back in Galway on June 27 to receive an honorary doctorate). Congratulations, Michael, on this fabulous achievement. Michael's thesis was supervised by Dr Kathleen Cavanaugh.