The Irish Centre for Human Rights, NUI Galway, in conjunction with Bank of Ireland announces a one-year fellowship in Human Rights Law for a scholar of note from a developing country at the post-doctorate level. Applications are invited for this fellowship from academics of any developing country whose research output and teaching focus on, or relate to, the area of human rights. While the Centre is engaged in the teaching and research in international human rights law, this fellowship is not restricted to scholars with legal backgrounds. Interested candidates should send in their complete CV, outlining their engagement with human rights issues or organisations and teaching interests. In addition candidates are also requested to send a brief abstract of research they wish to pursue during their time at the Irish Centre for Human Rights. It is also desirable to submit at least two letters of recommendation with the application.
The application package should be sent addressed to:
Dr. Kathleen Cavanaugh, Irish Centre for Human Rights, National University of Ireland, Galway, Republic Of Ireland. Applications may also be made by e-mail to: kathleen.cavanaugh@nuigalway.ie
The following terms and conditions are applicable:
1. The Fellowship is tenable at the Irish Centre for Human Rights in Galway for one year beginning as soon in the 2010-11 academic year as possible preferably by September 2010 but by no later than October 2010.
2. The fellow is required to reside in Galway during the fellowship
3. Recipients will be selected on the basis of engagement with human rights issues – gauged by research output and teaching interests, work within human rights NGOs and postgraduate qualifications in the field.
4. It is desirable that the recipient have experience in his/her local human rights NGOs.
5. The application should highlight a specific research project that will be undertaken during the year in Ireland
6. The total fellowship amount is €20,000 for one year
7. The recipient of the Fellowship is responsible for his or her own travel to and from Galway.
8. The recipient will be responsible for his/her own accommodation while in Galway. The university will provide assistance in locating accommodation.
9. The recipient will accept the right of the Irish Centre for Human Rights, NUI Galway and the Bank of Ireland to make reference to the holder in any promotional statements made in connection with the Fellowship.
10. All publication, reports, conference papers etc. that may be produced as a result of the Fellowship must acknowledge the Irish Centre for Human Rights, NUI Galway.
11. Applications will be considered by a special academic panel nominated by the President. The President will, on the advice of the panel, announce the name of the recipient of the Fellowship to the University Governing Authority and appropriate academic bodies.
12. On completion of the Fellowship, the candidate will be obliged to prepare a final report for presentation to NUI Galway.
For further information on the Centre and the University, please visit:
http://www.nuigalway.ie/human_rights
Please note: applications must be received by August 1, 2010. The Fellow will be announced by August 10th. The recipient of the award must be willing to take up the position by no later than the end of October 2010.
Tuesday, 27 July 2010
Thursday, 22 July 2010
50 Best Blogs for Human Rights
Online Degrees Net has prepared a list of the 50 Best Blogs for Following Human Rights News.
Saturday, 17 July 2010
Save the Date: 10th Anniversary Celebration at Irish Centre for Human Rights
The Irish Centre for Human Rights was established in its new premises in January 2000. We are marking the tenth anniversary this year with a series of activities that are concentrated on the 19-20 November weekend.
The weekend will feature an academic conference on the theme 'Forgotten Rights, Forgotten Concepts'. The keynote speaker is Manfred Nowak, who is the special rapporteur on torture. It will begin on the afternoon of 19 November and continue through the following day.
There will be a gala banquet the evening of 19 November (space is limited, so reserve your tickets soon) at Galway's Glenlo Abbey hotel. Senator David Norris will be the master of ceremonies.
Another activity will be a photo exhibition on human rights themes, entitled 'Through the Lens' made up of work by students and graduates of the Centre. The exhibition will actually be opened at Kenny's Book Shop in mid-October.
On thevening of 20 November, when the conference is over, there will be a more informal party at the Galway Rowing Club on the Corrib River, featuring Irish traditional music.
For further queries, and to reserve tickets for the banquet, contact: http://www.nuigalway.ie/human_rights;%20y.mcdermott2@nuigalway.ie
The weekend will feature an academic conference on the theme 'Forgotten Rights, Forgotten Concepts'. The keynote speaker is Manfred Nowak, who is the special rapporteur on torture. It will begin on the afternoon of 19 November and continue through the following day.
There will be a gala banquet the evening of 19 November (space is limited, so reserve your tickets soon) at Galway's Glenlo Abbey hotel. Senator David Norris will be the master of ceremonies.
Another activity will be a photo exhibition on human rights themes, entitled 'Through the Lens' made up of work by students and graduates of the Centre. The exhibition will actually be opened at Kenny's Book Shop in mid-October.
On thevening of 20 November, when the conference is over, there will be a more informal party at the Galway Rowing Club on the Corrib River, featuring Irish traditional music.
For further queries, and to reserve tickets for the banquet, contact: http://www.nuigalway.ie/human_rights;%20y.mcdermott2@nuigalway.ie
Geneticization of Rights
David Keane, who is a lecturer at the Law School of Middlesex University in London, and a PhD graduate of the Irish Centre for Human Rights, has just published an article entitled 'Survival of the Fairest? Evolution and the Geneticization of Rights' in the Oxford Journal of Legal Studies. Here is the abstract:
The process of evolution is largely absent from philosophical legal literature, to the extent that the possibility of a genetic origin of rights has not been explored. This is striking given that human rights theory stems from natural law and natural rights, which seems to imply a potential link with natural selection. Furthermore, the concept of nature has played a significant role in the philosophical foundations of international legal norms of rights and responsibilities. On the surface it may seem desirable to link rights to genetics. However, this approach can undermine criticism of genetic research and risks subordinating rights-based analysis to a problematic endeavour. The article looks to the discourse of ‘geneticization’ to provide a critique of future research into ‘law as evolution’. It recommends shifting jurisprudential thinking beyond the confines of bioethics, in line with future advances in biological research into the genetic origins of rights.
Friday, 16 July 2010
Inappropriate Comments from the Prosecutor of the International Criminal Court
Earlier this week, a ruling of the Trial Chamber was published on this blog in which a spokesperson for the Office of the Prosecutor was chastised by the judges for giving misleading statements to the press. Today’s Guardian has a good example of this phenomenon.
The Prosecutor has authored an article that distorts the decision of the Pre-Trial Chamber issued at the beginning of the week authorizing three genocide charges in an arrest warrant directed against President Al-Bashir.
Here are the first paragraphs of the article, cited verbatim.
This is quite misleading. The Court did not find ‘that Bashir’s forces have raped on a mass scale in Darfur’. The Court did not find ‘that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction’. The Court did not – and would not – do anything to suggest the issue of whether or not genocidal acts had taken place was actually decided. It merely issued an arrest warrant.
The Court applied a test set out by the Appeals Chamber, based upon article 58. It said that there were ‘reasonable grounds to believe’ that rapes were perpetrated. This test is significantly lower than the ‘substantial grounds’ test of article 61. It is much lower than the ‘beyond reasonable doubt’ test of article 66. Experts familiar with the Rome Statute and criminal lawyers generally will understand this point. But the average reader of the Guardian may well be misled by the Prosecutor's words into believing that the Court actually reached the conclusion that Bashir’s forces raped on a mass scale in Darfur, or that Bashir was deliberately inflicting conditions calculated to bring about the destruction of ethnic groups.
Shouldn’t the Prosecutor remind readers that the presumption of innocence continues to apply? Shouldn’t he point out that this is only an arrest warrant, and that the issue as to whether the crimes took place and whether Bashir was responsible remains to be determined? Is this sort of statement really compatible with a Prosecutor who is supposed to show a measured neutrality and who should, according to article 54, ‘investigate incriminating and exonerating circumstances equally’? I don't ever recall such extragant language from prosecutor's at the other international criminal tribunals.
The statement begins with the words: ‘No more excuses. No more denial.’ It is an unfortunate use of the word ‘denial’, made even more ugly by the reference in the following paragraph to the Nazi holocaust. By using the word 'denial', the implication is that those who qustion whether genocide is the appropriate characterization of crimes committed in Darfur are in the same camp as the anti-Semitic hatemongers who claim there were no gas chambers at Auschwitz. Is the Prosecutor suggesting that the judges of the Pre-Trial Chamber who issued an arrest warrant in 2009 against President Al-Bashir for crimes against humanity and war crimes were ‘deniers’? That is how I would read his statement, and it is wrong and unfair.
The judges in this week’s decision who issued the arrest warrant on genocide charges did not disagree with the factual findings of the judges who issued the first arrest warrant in March 2009. The only question was the standard to be applied in deciding to issue an arrest warrant. The Prosecutor is making a lot more of this week’s decision than it deserves, and in doing so is suggesting that the earlier Trial Chamber was composed of ‘deniers’.
Let me point out that in the first two arrest warrants issued with respect to Darfur, the Prosecutor himself did not seek genocide charges. In his Guardian article, he says that Al-Bashir used Harun to co-ordinate genocidal attacks. But he never charged Harun with genocide. So was the Prosecutor, too, in 'denial' until he suddenly became obsessed with genocide charges in July 2008?
The implication in the third paragraph that the Court found the genocide was continuing is also quite misleading. It results from the assertion, in the third paragraph, that ‘the genocide is not over’, followed by the words, in paragraph 4, that ‘the Court also found’. It is compounded by the claim that the Pre-Trial Chamber found that ‘Bashir is deliberately inflicting…’ Note the use of the present tense.
But the Court made no statement or finding about any ongoing genocide. In fact, as this week's ruling makes clear, the Court refused to hear any new evidence. Thus, the decision was based on the very evidence that was before the Pre-Trial Chamber when it issued the first arrest warrant in March 2009. In that ruling, the Court turned to materials other than those supplied by the Prosecutor, including authoritative UN reports. It said that ‘the materials provided by the Prosecution in support of the Prosecution Application reflect a situation within the IDP Camps which significantly differs from the situation described by the Prosecution in the Prosecution Application’.
If the Prosecutor had succeeded in getting the Court to consider new and more recent evidence, I suspect the conclusion would have been that there is not serious evidence of ongoing genocide in Darfur.
Readers of the blog are referred to recent reports to the Security Council by Ibrahim Gambari, who is Joint Special Representative for the African Union and the United Nations Hybrid Operation in Darfur. He reported to the Security Council in May, and again in June, telling of some renewed fighting – much of it between rebel groups themselves – but did not say anything to suggest an ongoing genocide in the camps for internally displaced persons (see UN Doc. S/PV.6318, UN Doc. S/PV.6338) In May, Gambari told the Security Council: ‘‘In the areas of security and the protection of the civilian population, some progress has indeed been made, but pockets of instability remain.’ In June, he said, following a meeting with the Government, ‘the Government of the Sudan gave instructions to the relevant agencies to allow, immediately and wherever possible, access for both UNAMID and the humanitarian agencies’. Does this sound like genocide?
Here is the discussion of the situation in the camps in the most recent report on Darfur from the Secretary-General (‘Report of the Secretary-General on the African Union-United Nations Hybrid Operation in Darfur (UNAMID)’, UN Doc. S/2010/213), issued in April 2010:
In June, the Independent Expert of the Human Rights Council issued a report (‘Report of the independent expert on the situation of human rights in the Sudan, Mohammed Chande Othman’, UN Doc. A/HRC/14/41/Add.1). He said: ‘While significant progress has been made towards the protection of women, acts of sexual violence, particularly against internally displaced women and girls, continue to be of concern’ Referring to the humanitarian assistance situation, he wrote:
The Prosecutor is free to apply for a new arrest warrant for genocide, dealing with the current situation, but he has not done so. If he tries, the current UN reports on Darfur will not be very helpful to him.
The Prosecutor has authored an article that distorts the decision of the Pre-Trial Chamber issued at the beginning of the week authorizing three genocide charges in an arrest warrant directed against President Al-Bashir.
Here are the first paragraphs of the article, cited verbatim.
No more excuses. No more denial. This week, the international criminal court issued an arrest warrant for three charges of genocide against the president of Sudan, Omar al-Bashir.
The world once claimed ignorance of the Nazi atrocities. Fifty years later, the world refused to recognise an unfolding genocide in Rwanda. On Darfur, the world is now officially on notice.
The genocide is not over. Bashir's forces continue to use different weapons to commit genocide: bullets, rape and hunger. For example, the court found that Bashir’s forces have raped on a mass scale in Darfur. They raped thousands of women and used these rapes to degrade family and community members. Parents were forced to watch as their daughters were raped.
The court also found that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction. Millions of Darfuris are living in camps for displaced persons and, at the disposal of Bashir's forces, experiencing an ongoing genocide. They are helpless, voiceless and with no hope for the future. Darfuris need other voices to help end a genocide that should have been stopped years ago. We can still stop it but we must stop it now. The court's recent decision could provide a last chance for the world to react properly, to transform "never again" from a promise into a reality.
This is quite misleading. The Court did not find ‘that Bashir’s forces have raped on a mass scale in Darfur’. The Court did not find ‘that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction’. The Court did not – and would not – do anything to suggest the issue of whether or not genocidal acts had taken place was actually decided. It merely issued an arrest warrant.
The Court applied a test set out by the Appeals Chamber, based upon article 58. It said that there were ‘reasonable grounds to believe’ that rapes were perpetrated. This test is significantly lower than the ‘substantial grounds’ test of article 61. It is much lower than the ‘beyond reasonable doubt’ test of article 66. Experts familiar with the Rome Statute and criminal lawyers generally will understand this point. But the average reader of the Guardian may well be misled by the Prosecutor's words into believing that the Court actually reached the conclusion that Bashir’s forces raped on a mass scale in Darfur, or that Bashir was deliberately inflicting conditions calculated to bring about the destruction of ethnic groups.
Shouldn’t the Prosecutor remind readers that the presumption of innocence continues to apply? Shouldn’t he point out that this is only an arrest warrant, and that the issue as to whether the crimes took place and whether Bashir was responsible remains to be determined? Is this sort of statement really compatible with a Prosecutor who is supposed to show a measured neutrality and who should, according to article 54, ‘investigate incriminating and exonerating circumstances equally’? I don't ever recall such extragant language from prosecutor's at the other international criminal tribunals.
The statement begins with the words: ‘No more excuses. No more denial.’ It is an unfortunate use of the word ‘denial’, made even more ugly by the reference in the following paragraph to the Nazi holocaust. By using the word 'denial', the implication is that those who qustion whether genocide is the appropriate characterization of crimes committed in Darfur are in the same camp as the anti-Semitic hatemongers who claim there were no gas chambers at Auschwitz. Is the Prosecutor suggesting that the judges of the Pre-Trial Chamber who issued an arrest warrant in 2009 against President Al-Bashir for crimes against humanity and war crimes were ‘deniers’? That is how I would read his statement, and it is wrong and unfair.
The judges in this week’s decision who issued the arrest warrant on genocide charges did not disagree with the factual findings of the judges who issued the first arrest warrant in March 2009. The only question was the standard to be applied in deciding to issue an arrest warrant. The Prosecutor is making a lot more of this week’s decision than it deserves, and in doing so is suggesting that the earlier Trial Chamber was composed of ‘deniers’.
Let me point out that in the first two arrest warrants issued with respect to Darfur, the Prosecutor himself did not seek genocide charges. In his Guardian article, he says that Al-Bashir used Harun to co-ordinate genocidal attacks. But he never charged Harun with genocide. So was the Prosecutor, too, in 'denial' until he suddenly became obsessed with genocide charges in July 2008?
The implication in the third paragraph that the Court found the genocide was continuing is also quite misleading. It results from the assertion, in the third paragraph, that ‘the genocide is not over’, followed by the words, in paragraph 4, that ‘the Court also found’. It is compounded by the claim that the Pre-Trial Chamber found that ‘Bashir is deliberately inflicting…’ Note the use of the present tense.
But the Court made no statement or finding about any ongoing genocide. In fact, as this week's ruling makes clear, the Court refused to hear any new evidence. Thus, the decision was based on the very evidence that was before the Pre-Trial Chamber when it issued the first arrest warrant in March 2009. In that ruling, the Court turned to materials other than those supplied by the Prosecutor, including authoritative UN reports. It said that ‘the materials provided by the Prosecution in support of the Prosecution Application reflect a situation within the IDP Camps which significantly differs from the situation described by the Prosecution in the Prosecution Application’.
If the Prosecutor had succeeded in getting the Court to consider new and more recent evidence, I suspect the conclusion would have been that there is not serious evidence of ongoing genocide in Darfur.
Readers of the blog are referred to recent reports to the Security Council by Ibrahim Gambari, who is Joint Special Representative for the African Union and the United Nations Hybrid Operation in Darfur. He reported to the Security Council in May, and again in June, telling of some renewed fighting – much of it between rebel groups themselves – but did not say anything to suggest an ongoing genocide in the camps for internally displaced persons (see UN Doc. S/PV.6318, UN Doc. S/PV.6338) In May, Gambari told the Security Council: ‘‘In the areas of security and the protection of the civilian population, some progress has indeed been made, but pockets of instability remain.’ In June, he said, following a meeting with the Government, ‘the Government of the Sudan gave instructions to the relevant agencies to allow, immediately and wherever possible, access for both UNAMID and the humanitarian agencies’. Does this sound like genocide?
Here is the discussion of the situation in the camps in the most recent report on Darfur from the Secretary-General (‘Report of the Secretary-General on the African Union-United Nations Hybrid Operation in Darfur (UNAMID)’, UN Doc. S/2010/213), issued in April 2010:
46. The humanitarian situation in the well-established camps for internally displaced persons remains stable. During the reporting period, food distributions carried out by the World Food Programme at some 300 points throughout Darfur regularly reached more than 95 per cent of the intended beneficiaries. Approximately 4.2 million vulnerable people continued to receive the direct food assistance of the Programme in this manner.Does this sound like ongoing genocide?
47. The continuous availability of a safe water supply was ensured for more than 1.2 million internally displaced persons through support for the operation and maintenance of more than 650 water systems, including the chlorination of the water supply. During the reporting period, a safe water supply was provided for 32,500 additional internally displaced persons and hosting communities through the construction of new water sources and was re-established for 26,000 through the rehabilitation of existing water sources.
48. Bilateral efforts are under way on the ground to provide assistance to internally displaced persons who are already returning voluntarily or who may decide to do so in the near future.
In June, the Independent Expert of the Human Rights Council issued a report (‘Report of the independent expert on the situation of human rights in the Sudan, Mohammed Chande Othman’, UN Doc. A/HRC/14/41/Add.1). He said: ‘While significant progress has been made towards the protection of women, acts of sexual violence, particularly against internally displaced women and girls, continue to be of concern’ Referring to the humanitarian assistance situation, he wrote:
27. In the aftermath of the expulsion on 4 March 2009 of 13 non-governmental organizations from Darfur, the Government took positive steps towards facilitating humanitarian assistance in Darfur, including by publicly welcoming the remaining and certain new non-governmental organizations to work in the region. In August 2009, a high level committee on humanitarian affairs, comprising senior Sudanese officials, representatives of the diplomatic community, the United Nations, regional and nongovernmental organizations endorsed the creation of a mechanism to verify the voluntary return of internally displaced persons in accordance with international humanitarian principles. Humanitarian access in Darfur was uneven during the reporting period. Access to urban areas outside the State capitals improved thanks to the presence of UNAMID team sites, while access to other areas, such as Jebel Marra and Jebel Moon, in West Darfur, and Kass, in South Darfur, were restricted owing to renewed fighting between Government and rebel forces and intertribal clashes.Does this sound like ongoing genocide?
The Prosecutor is free to apply for a new arrest warrant for genocide, dealing with the current situation, but he has not done so. If he tries, the current UN reports on Darfur will not be very helpful to him.
Thursday, 15 July 2010
Lubanga's Release Ordered by Trial Chamber
The release of Thomas Lubanga, who is the first person to be tried by the International Criminal Court, was ordered this afternoon by the Trial Chamber. The Chamber also gave the Prosecutor leave to appeal its decision staying proceedings, issued last week.
This is a bit of déjà vu all over again, to quote the late, great Yogi Berra. Two years ago, similar controversies arose between the Chamber and the Prosecutor. At that time, a solution was found, and the trial permitted to proceed.
The Chamber has suspended the effect of its decision to release Lubanga for five days, giving the Prosecutor enough time to file an appeal and to request the Appeals Chamber to suspended the decision to release the accused. I'm going to be in The Hague next week. If Lubanga's free for dinner on Wednesday, he can be my guest.
Thanks to Yvonne McDermott.
This is a bit of déjà vu all over again, to quote the late, great Yogi Berra. Two years ago, similar controversies arose between the Chamber and the Prosecutor. At that time, a solution was found, and the trial permitted to proceed.
The Chamber has suspended the effect of its decision to release Lubanga for five days, giving the Prosecutor enough time to file an appeal and to request the Appeals Chamber to suspended the decision to release the accused. I'm going to be in The Hague next week. If Lubanga's free for dinner on Wednesday, he can be my guest.
Thanks to Yvonne McDermott.
Wednesday, 14 July 2010
More on Intermediaries from the Lubanga Trial Chamber: Can it Really Take 'appropriate action'?
A recent 'ruling' by the Trial Chamber in Lubanga has just been brought to my attention. The Chamber chastised Beatrice le Frapper du Hellen, who is a senior official in the Office of the Prosecutor, for remarks that she made in an interview with the lubangatrial.org blog.
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly,
the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.'in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public's understanding of the trial), which tends to bring the Court into disrepute'. It said it would take no further action than to express 'the strongest disapproval of the content of this interview' but warned that 'if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible'.
This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to 'take appropriate action' in the case of 'objectionable public statements'. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week's decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of 'intermediaries'. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to 'appropriate action' if I make an 'objectionable public statement'? I am inclined to think that it could stay the proceedings if a third party - such as myself - made an 'objectionable public statement' that drastically compromised the fairness of the trial itself, but that it can do no more than that.
The views of readers of the blog on this issue would be welcomed.
Thanks to Yvonne McDermott
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly,
the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.'in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public's understanding of the trial), which tends to bring the Court into disrepute'. It said it would take no further action than to express 'the strongest disapproval of the content of this interview' but warned that 'if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible'.
This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to 'take appropriate action' in the case of 'objectionable public statements'. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week's decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of 'intermediaries'. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to 'appropriate action' if I make an 'objectionable public statement'? I am inclined to think that it could stay the proceedings if a third party - such as myself - made an 'objectionable public statement' that drastically compromised the fairness of the trial itself, but that it can do no more than that.
The views of readers of the blog on this issue would be welcomed.
Thanks to Yvonne McDermott
Arms Trade Treaty Negotiations Blog
The Geneva Academy of International Humanitarian Law and Human Rights (Stuart Maslen and Gilles Giacca) are running a blog on the Arms Trade Treaty negotiations in New York City.
Thanks to Andrew Clapham.
Thanks to Andrew Clapham.
Tuesday, 13 July 2010
Genocide Charges Confirmed at International Criminal Court
Yesterday, a Pre-Trial Chamber of the International Criminal Court issued a second warrant of arrest against President Al-Bashir of Sudan adding charges of genocide. These had earlier been rejected in a 4 March 2009 ruling, but the decision was overturned in January by the Appeals Chamber which found the standard set by the Pre-Trial Chamber to be excessive. I have always thought that the Pre-Trial Chamber was doing the Prosecutor a big favour, by narrowing the arrest warrant to charges that he had a realistic chance of proving.
The reasoning in yesterday’s decision is quite simple, really. The Pre-Trial Chamber had said that the finding that Bashir had acted with genocidal intent was not the only reasonable conclusion, and therefore rejected the arrest warrant on that ground. Later, the Appeals Chamber said that this was too high a standard, and that as long as genocidal intent was a reasonable conclusion (rather than the only reasonable conclusion), the warrant should be issued. Yesterday, a differently constituted Pre-Trial Chamber said that since the first Pre-Trial Chamber had already concluded genocidal intent was a reasonable conclusion, albeit not the only reasonable conclusion, that therefore the warrant should be issued.
The Pre-Trial Chamber goes on to examine whether various material elements of genocide, such as killing and so on, are also present. This was never really much of an issue and the discussion here is relatively brief.
The consequence of this decision should not be exaggerated. The Prosecutor must still prove genocide beyond a reasonable doubt. At the International Criminal Tribunal for the former Yugoslavia, the Prosecutor obtained indictments against many suspects on charges of genocide but only succeeded in proving a few of them. Indeed, only last month, in Popovic et al. a Trial Chamber of the Yugoslavia Tribunal registered three convictions for genocide; the only two previous convictions for genocide were reversed on appeal. Trial Chambers have also dismissed many charges of genocide at trial.
Applying the ‘reasonable grounds’ standard at the International Criminal Court in the manner indicated by the Appeals Chamber, it should be possible to obtain an arrest warrant on genocide charges in most cases involving ethnic violence. That doesn’t mean the cases will stand up at trial, as the Prosecutor at the Yugoslavia Tribunal well knows.
There is a certain magic or mystique about the word 'genocide'. Charges of crimes against humanity are often regarded as being almost banal, alongside the 'crime of crimes'. This is not legally accurate, of course. Crimes against humanity are among 'the most serious crimes of concern to the international community as a whole'. There are what the Nazis were convicted of at Nuremberg. But for many, absent charges of genocide it is as if the violence and suffering are being downgraded unacceptably. The corrollary of this is that labelling something genocide creates enormous political momentum. The Pre-Trial Chamber's ruling, however modest the grounds on which it is based and however unlikely the chances of success of the genocide counts at trial, may nevertheless have a dramatic political effect.
The reasoning in yesterday’s decision is quite simple, really. The Pre-Trial Chamber had said that the finding that Bashir had acted with genocidal intent was not the only reasonable conclusion, and therefore rejected the arrest warrant on that ground. Later, the Appeals Chamber said that this was too high a standard, and that as long as genocidal intent was a reasonable conclusion (rather than the only reasonable conclusion), the warrant should be issued. Yesterday, a differently constituted Pre-Trial Chamber said that since the first Pre-Trial Chamber had already concluded genocidal intent was a reasonable conclusion, albeit not the only reasonable conclusion, that therefore the warrant should be issued.
The Pre-Trial Chamber goes on to examine whether various material elements of genocide, such as killing and so on, are also present. This was never really much of an issue and the discussion here is relatively brief.
The consequence of this decision should not be exaggerated. The Prosecutor must still prove genocide beyond a reasonable doubt. At the International Criminal Tribunal for the former Yugoslavia, the Prosecutor obtained indictments against many suspects on charges of genocide but only succeeded in proving a few of them. Indeed, only last month, in Popovic et al. a Trial Chamber of the Yugoslavia Tribunal registered three convictions for genocide; the only two previous convictions for genocide were reversed on appeal. Trial Chambers have also dismissed many charges of genocide at trial.
Applying the ‘reasonable grounds’ standard at the International Criminal Court in the manner indicated by the Appeals Chamber, it should be possible to obtain an arrest warrant on genocide charges in most cases involving ethnic violence. That doesn’t mean the cases will stand up at trial, as the Prosecutor at the Yugoslavia Tribunal well knows.
There is a certain magic or mystique about the word 'genocide'. Charges of crimes against humanity are often regarded as being almost banal, alongside the 'crime of crimes'. This is not legally accurate, of course. Crimes against humanity are among 'the most serious crimes of concern to the international community as a whole'. There are what the Nazis were convicted of at Nuremberg. But for many, absent charges of genocide it is as if the violence and suffering are being downgraded unacceptably. The corrollary of this is that labelling something genocide creates enormous political momentum. The Pre-Trial Chamber's ruling, however modest the grounds on which it is based and however unlikely the chances of success of the genocide counts at trial, may nevertheless have a dramatic political effect.
Sunday, 11 July 2010
Secretary-General's Quinquennial Reports on the Status of the Death Penalty
Every five years, since 1975, the Secretary-General has prepared a report on the status of the death penalty. The reports include statistical tables, and are based on questionnaires circulated to Member States as well as on other sources. These reports provide an extremely useful mapping of the progress in the reduction and eventual elimination of capital punishment. The first report was actually quite pessimistic. According to the Secretary-General:
It remains extremely doubtful whether there is any progression towards the restriction of the use of the death penalty. Periods of abolition or non-use may be succeeded by widespread executions in a highly unstable political situation or by a sudden return to the death penalty as a sanction where a state feels insecure. Moreover, in a few States where serious forms of terror and violence have been experienced, the death penalty has been used increasingly as counter-terror, or deterrence...
What a misjudgment that was! Since 1975, every year two to three States have abandoned the use of capital punishment. Today, only a small number of States - about 35 - still resort to the death penalty. If the consistent pattern since 1975 is maintained, universal abolition cannot be much more than a decade away.
The latest of the five-year or 'quinquennial' reports was issued two months ago. Although the more recent are generally available somewhere on the UN website(s), the early reports are not accessible on line, to my knowledge. In order to make this material more accessible, I am posting all of the reports:
2010; 2005; 2000; 1995; 1990 A, B, C; 1985 A, B, C; 1980 A, B, C; 1975
It remains extremely doubtful whether there is any progression towards the restriction of the use of the death penalty. Periods of abolition or non-use may be succeeded by widespread executions in a highly unstable political situation or by a sudden return to the death penalty as a sanction where a state feels insecure. Moreover, in a few States where serious forms of terror and violence have been experienced, the death penalty has been used increasingly as counter-terror, or deterrence...
What a misjudgment that was! Since 1975, every year two to three States have abandoned the use of capital punishment. Today, only a small number of States - about 35 - still resort to the death penalty. If the consistent pattern since 1975 is maintained, universal abolition cannot be much more than a decade away.
The latest of the five-year or 'quinquennial' reports was issued two months ago. Although the more recent are generally available somewhere on the UN website(s), the early reports are not accessible on line, to my knowledge. In order to make this material more accessible, I am posting all of the reports:
2010; 2005; 2000; 1995; 1990 A, B, C; 1985 A, B, C; 1980 A, B, C; 1975
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