Canadian Officials Breach Canadian Constitution in Guantanamo

The Supreme Court of Canada has held that officials from the Canadian department of foreign affairs participated in breaches of fundamental rights of an adolescent detained by the American at Guantanamo. Omar Khadr, a Canadian citizen, was interrogated by Canadian officials in 2003 and 2004 while at the American detention centre. According to yesterday’s ruling: ‘This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada's international human rights obligations and contributed to Mr. Khadr's ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.’ The Court said: ‘Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations… Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.’ Here is the judgment.
Khadr has the distinction of being the only citizen of a western democracy whose own government has not intervened on his behalf in order to organise repatriation. Although now in his early 20s, he was captured by United States forces in 2001 at the age of 15 and has been detained ever since. Omar Khadr was born in Toronto.
Thanks to Bill Hartzog.

Abortion in Ireland

Human Rights Watch has issued its report on abortion in Ireland: A State of Isolation: Access to Abortion for Women in Ireland.
According to Human Rights Watch, the report shows how women struggle to overcome the financial, logistical, physical, and emotional burdens imposed by restrictive laws and policies that force them to seek care abroad, without support from the state. Every year thousands of women and girls travel from Ireland to other European countries for abortions.
'Women in need of abortion services should, as a matter of international law and – frankly –human decency, be able to count on support from their government as they face a difficult situation', said Marianne Mollmann, women’s rights advocacy director at Human Rights Watch. But in Ireland they are actively stonewalled, stigmatized, and written out.'
In December, three cases directed against Ireland raising abortion-related issues were argued before the European Court of Human Rights.

Diamonds, Charles Taylor and Movie Stars

Earlier this month, during his trial at the Special Court for Sierra Leone Charles Taylor was cross-examined about a dinner party he attended with supermodel Naomi Campbell and actress Mia Farrow, in 1997, in South Africa. Here's the transcript. The interesting part starts at page 33336. The prosecutor claimed that he had given a rough diamond to Naomi Campbell, a charge that Taylor denies. the prosecutor claims that Campbell told Mia Farrow about this the following morning, and that Mia Farrow has provided the Special Court with an affidavit confirming that Campbell told her this.

Rules of evidence are a bit relaxed at international criminal tribunals, but there must be limits. Farrow's affidavit is a great example of double hearsay, of course. Not only is it a statement rather than personal testimony (single hearsay), but all it does it report what someone else said. Couldn't the prosecutor at least get an affidavit from Campbell?

But in a common law court, I don't think we'd allow such evidence anyway. The prosecutor concedes that the evidence is only being led to challenge Taylor's credibility, because he had earlier said in his testimony that he never did have any diamonds in his possession. I think this is what we call a collateral attack, and it would not be allowed. Still, a guest appearance at the Court from a model and a movie star would sure liven things up.

Thanks to Yvonne McDermott.

Crime of Aggression, International Law and the Chilcott Inquiry

Yesterday, two international lawyers who had held senior positions in the British government at the time of the Iraq invasion testified before an official inquiry that they considered the acts of the British government to be illegal. See the account in today's Guardian. Elizabeth Wilmshurst, who had been deeply involved in negotation of the Rome Statute of the International Criminal Court, courageously resigned when the advice was dismissed and the British government decided to proceed with its American partners. In addition to testimony by Elizabeth Wilmshurst and Sir Michael Wood, who had been the chief legal advisor, memos written at the time were revealed to the public for the first time during yesterday's hearing.
On 24 January 2003, Michael Wood wrote a memo because Jack Straw had told US vice-president Cheney that Britain would 'prefer' that the invasion be authorized by a Security Council resolution, but that it would be 'OK' if they tried and failed to get one 'à la Kosovo'. I note in passing that in 1999 no resolution on Kosovo ever was put to a vote in the United Nations Security Council.
In his memo to Straw, Michael Wood wrote: 'To use force without security council authority would amount to a crime of aggression.' Straw apparaently replied: 'I note your advice but I do not accept it.'
If Wood is correct, and I think that he is, then Straw (and Blair) committed the crime of aggression. But can they be prosecuted for this?
Although the International Criminal Court continues to wrestle with defining the crime of aggression, for the purposes of an amendment to the Rome Statute that will enable it to actually prosecute the crime, there can be no doubt that the crime of aggression exists under customary international law. This has been held by the British courts. It seems preposterous to claim that the crime of aggression existed at Nuremberg and Tokyo (it was then called crimes against peace) , but that it does not exist today because there is no definition in the Rome Statute.
The difficult issue is not defining the crime but finding a court with jurisdiction over it. The House of Lords has already taken the view that British courts do not have jurisdiction to prosecute the crime of aggression. George Monbiot, the Guardian columnist, has been raising funds for a prosecution of Blair. I hope he refunds their money back when he realises that this is a dead end.
The fact that the International Criminal Court cannot actually prosecute the crime of aggression, however, does not mean that this is irrelevant to its work. It arises indirectly, and provides a route to litigate these issues and, I think, hold Blair and Straw accountable.
The Court's Statute adopts a concept of criminal enterprise (art. 25(3)(d)) by which an individual is punishable by the Court who 'contributes to the commission or attempted commission' of war crimes, crimes agianst humanity and genocide 'by a group of persons acting with a common purpose. Such contribution shall be intentional'' and shall be 'made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court' (my italics). This is the entry point for the crime of aggression in the work of the International Criminal Court.
There is a good case to be made that Blair and Straw were part of 'a group of persons acting with a common purpose' whose activity involved 'the commission of a crime within the jurisdiction of the Court', namely, the crime of aggression. Article 5(1) of the Statute states that 'the crime of aggression' is a crime within the jurisdiction of the Court. Although article 5(2) says that temporarily the Court cannot exercise jurisdiction over the crime of aggression, this is not what it would be doing if it proceeded against Blair and Straw for war crimes committed pursuant to a common purpose to commit aggression. All this does is make effective the words of article 5(1), which describe the crime of aggression as a crime within the jurisdiction of the Court. These same words are used in article 25(3)(d).
The Court can exercise jurisdiction over war crimes committed in 2003. It has jurisdiction over Blair and Straw because they are nationals of a State party. And it can punish those who were part of the 'common purpose' or criminal enterprise to commit aggression even for war crimes committed by individuals who escape its jurisdiction, such as American nationals.
The Prosecutor of the International Criminal Court has already been dismissive of appeals that he investigate British war crimes in Iraq, although he has acknowledged that there is good evidence some took place He has also suggested that Britain is dealing with them before its own courts.
But Britain isn't dealing with the masterminds of the joint criminal enterprise to commit aggression. They are liable under the Rome Statute to the extent that war crimes were committed pursuant to this joint criminal enterprise. In other words, if either British or American troops committed war crimes, then Blair and Straw should be liable for prosecution by the Court under article 25(3)(d).
In his 2006 statement, the Prosecutor said he would not proceed against the British troops for what he suggested were isolated war crimes, because they were not serious enough. Perhaps he has a point here. But he might reconsider this with respect to Blair and Straw, especially given the fact that according to yesterday's testimony they defied advice from their own experts who told them that they would be committing the crime of aggression by invading another country without Security Council authorization. That strikes me as 'serious enough'.

Republican Bigotry

'By bluntly insisting that France’s republican values are under threat from a thousand or so women who wear full-face veils, a parliamentary commission that submitted a report opposing the practice on Tuesday merely succeeded in cheapening those values.' See the rest of this fine editorial in today's Financial Times.

Two New Books by Our Graduates

Dr. Noelle Higgins, who completed her PhD at the Irish Centre for Human Rights last year, has published a book that is based upon her doctoral thesis: Regulating the Use of Force in Wars of National Liberation: The Need for a New Regime – A Study of the South Moluccas and Aceh, Martinus Nijhoff, 2010. Noelle is a Lecturer in Law at Dublin City University. She is also a graduate of our LLM programme. Her thesis was supervised by Dr Ray Murphy.
Margaret Cordial (with Knut Rosandhaug) has published Post-Conflict Property Restitution – The Approach in Kosovo and Lessons Learned for Future International Practice (Volumes 1 and 2), Martinus Nijhoff, 2009. Margaret is a graduate of the LLM in human rights programme at the Irish Centre for Human Rights. She is currently working with the UN in Afghanistan.
Warm congratulations to you both.

Anastasia Crickely Elected to Committee for the Elimination of Racial Discrimination

Anastasia Crickley, of Ireland, has been elected to a four-year term as a member of the Committee for the Elimination of Racial Discrimination. She was one of nine people who were elected or re-elected to the Committee. Among them was another good friend of the Irish Centre for Human Rights, Patrick Thornberry. Anastasia, who is an academic at the NUI Maynooth, where she is head of the department of Applied Social Studies, has served in a number of important positions related to anti-racism, including chair of the National Consultative Committee on Racism and Interculturalism and, most recently, aas inaugural chair of the management board of the European Fundamental Rights Agency.
She is the second Irish person to be elected to a United Nations treaty body, joining Michael O'Flaherty, who is serving his second term as a member of the Human Rights Committee.
It is often said that in the field of human rights Ireland, with a population of less than 6 million, punches above its weight.
Congratulations, Anastasia. Congratulations, Patrick.

Paris Conference on 10 February

The Irish Centre for Human Rights and the Centre de Recherche en Droits de l'homme et droit humanitaire, which is based at the University of Paris II, are co-sponsoring a series of lectures that are being held at the Irish Cultural Centre, in Paris: http://www.crdh.fr/cycle_2009_20102.php?lien=ok.
The next lecture is on 10 February at 18h00, and I will be speaking on international developments concerning capital punishment.
The lectures are open to the public, and there is no charge. English and French are the working languages, and there is no interpretation.

Spreading the jam

The paper on whether the Palestinian Authority can accept the jurisdiction of the International Criminal Court has stimulated a thoughtful and interesting reply from Dov Jacobs: http://dovjacobs.blogspot.com/2010/01/case-study-in-legal-reasoning-icc-and.html.

The Shrinking Costs of War

I’ve written before on the work of the Human Security Report team, who study the statistical aspect of modern conflict. In a general sense, previous reports have shown that estimates of loss of life during armed conflict are generally much exaggerated, and that mortality related to armed conflict continues to decline. More robust international peacekeeping and the enhanced role of the United Nations and factors that the Human Security Report team say help to explain the phenomenon. One might add such elements as the growing deterrent effect of international justice, and the beneficial consequences of the expansion of human rights monitoring mechanisms, the special procedures of the Human Rights Council, the activities of NGOs, and so on.
This flies in the face of the claims of various advocacy organizations. Understandably, I suppose, they dramatize the number of deaths because this helps to draw attention (and resources) to the conflicts on which they focus.
The latest report from the Human Rights Security Project was issued yesterday. Here is one of the observations:

Today, wars generate far fewer deaths on average than they did in the past. The deadliest year for war deaths since World War II was 1950, mostly because of the huge death toll in the Korean War. The average conflict that year killed some 33,000 people; in 2007, the average toll was less than 1,000.

Moreover,

In today’s low-intensity wars, rebel organizations—and government forces—often kill civilians and flout international humanitarian law in other ways. But, the horrific nature of much of the violence has tended to divert attention from the fact the actual death tolls are relatively small—and have been decreasing..

The latest report notes that we get large scale killing only when big armies are involved, pointing to the US invasion of Iraq in 2003 as an example. I have always been a bit curious to hear some US-based human rights activists bemoaning the number of deaths in Darfur and in the Democratic Republic of the Congo, yet strangely subdued when it comes to Iraq. When I was on sabbatical in the US a few years ago, it seemed as if every campus had a ‘save Darfur’ campaign, but little or nothing about the misery being inflicted upon Iraq. In fact, many used to argue that the main actor capable of ‘saving Darfur’ was the US military!
Here is another interesting observation:

Take the case of Darfur. In the fall of 2006, the high-profile Save Darfur Coalition, a US-based advocacy group, claimed that since the fighting in Darfur had started some three years earlier, “400,000 innocent men, women and children have been killed.”
This figure was at least double that of most expert estimates at the time and the reference to innocents being “killed” was wholly misleading. The overwhelming majority of deaths in Darfur in this period were not the result of a government-instigated “slaughter”––as Save Darfur had claimed––but of disease and malnutrition, which were already major killers before the war. Determining what percentage of these deaths could be attributed to the impact of wartime violence rather than pre-existing conditions of abject poverty and malnutrition is extraordinarily difficult, if not impossible.
Getting mortality estimates wrong can have real-world consequences and the Save Darfur campaign’s claims have been sharply criticized by humanitarian groups and area specialists. As one critic noted, “Exaggerated death tolls . . . make it difficult for relief organizations to deliver their services. Khartoum considers the inflated numbers to be evidence that all groups that deliver aid to Darfur are actually adjuncts of the activist groups that the regime considers its enemies, and thus finds justification for delaying visas, refusing to allow shipments of supplies and otherwise putting obstacles in the way of aid delivery.”
Humanitarian agencies and nongovernmental organizations (NGOs), as well as human rights advocacy groups, actively publicize the plight of the war-affected populations they seek to assist––and often use excess mortality tolls to make a case for more aid. There are compelling reasons for doing this, as the IRC’s Rick Brennan and Anna Husarska pointed out in an article in the Washington Post on July 16, 2006, “When there is media coverage, aid increases. Large donors may be more inclined to press for a greater presence of international peacekeeping forces to protect civilians and humanitarian assistance teams. And the presence of peacekeepers makes it easier for the media to report.”
If these factors come together, they accomplish the goal of every humanitarian response: saving lives.
Saving lives is, of course, the raison d’etre of humanitarian organizations.
However, a potential conflict of interest arises here because the institutional survival of humanitarian NGOs is dependent on donor funding. But, the level of funding they receive is directly related to assessments of humanitarian need––assessments that they themselves are usually responsible for generating.

We might add to this discussion the consequences of such exaggerations in another area: prosecutorial priorities at the International Criminal Court. It is intriguing that the two examples of distorted death figures cited, and examined, in the Report are both ‘situations’ currently on the agenda of the Office of the Prosecutor of the International Criminal Court. The Prosecutor has justified his choice of priorities with references to the ‘gravity’ of the conflicts in question. On several occasions he has referred to numbers of deaths as an indicator of ‘gravity’ and a major factor in his decisions. For example, in February 2006 he rejected communications urging him to investigate war crimes committed in Iraq because his priorities, he said, should be in the Democratic Republic of the Congo where the death toll was so great. And in December 2008, I heard him charging genocide in Darfur where, he said, 60,000 people were being killed every year.
My point is that if the Office of the Prosecutor has its numbers wrong – which the Human Security Report seems to suggest – then it’s also got its strategy wrong.
This work is important in terms of international criminal justice. Not only may a more scientific approach to mortality rates (and other consequences of armed conflict) be useful in establishing prosecutorial priorities, it may also help us understand the most elusive of all claims we make: that international accountability has a deterrent effect. If the Human Security Report is correct, maybe it is helping to prove this.
More generally, if peacekeeping, international criminal justice and human rights haven’t improved the situation in recent years, we might as well give up, because we have been wasting our time. I find a report that concludes there is an overall improvement to be rather encouraging. It makes me want to continue doing what we do.