Lemkin, Adoption of Genocide Convention, on Youtube

For a short clip showing a brief interview with Raphael Lemkin, who invented the word 'genocide', and a scene from the adoption of the Genocide Convention by the General Assembly in 1948, click here.

African Union Amendment to Article 16 of Rome Statute Analysed

A very fine and detailed study on the African Union proposal to amend article 16 of the Rome Statute has been published by the South African Institute for Security Studies. It is authored by three distinguished scholars: Dapo Akande, Max du Plessis and Charles Chernor Jalloh. The authors explain that their work was informed by an expert group (to which I belong), although it does not suggest that the experts agree with everything in the report. I certainly agree with most of it.
Following the Prosecutor's announcement that he was seeking an arrest warrant against the President of Sudan, Omar Al Bashir, the AU sought to halt this proceeding using the only mechanism available under the Rome Statute: article 16. The provision allows the Security Council to suspend prosecutions for one year, although this is renewable. The AU request did not find sufficient support in the Security Council. In particular, the United States, which has now become the Court's greatest friend, indicated that it was opposed and that if things came to a vote it could exercise its veto.
Subsequently, the AU proposed to amend article 16 in order to allow the General Assembly, as well as the Security Council, to request that Court proceedings be suspended. The amendment was tabled last year before the Assembly of States Parties but had insufficient support to make it onto the agenda of the Kampala Review Conference.
Some think that the warming of the United States towards the Court is due to the election of President Obama. Actually it began much earlier. The real starting point for the change in the United States position was about when the Court began to go after Sudan, in March 2005. Support for the Court has become a 'zero sum game'. The more the United States likes the Court, the cooler Africa gets. Africa's declining enthusiasm for the Court has been manifested in a number of ways, including the refusal of certain ICC member states to comply with the Al Bashir arrest warrant. Africa's tension with the Court is profoundly troubling.
This report, written by three Africans, addresses the African concerns with great understanding and sympathy. It concludes that the legal obstacles to the proposed amendment to article 16 are actually not so serious. The real problem is political. The report suggests there will not be sufficient support among members of the Court. I think that getting general support within the United Nations, or within the States Parties to the Court, is probably not such an obstacle. After all, article 16 was not exactly a careful, balanced attempt to address the relationship between peace and justice. Rather, it was a nasty compromise with the five permanent members of the Security Council, who thought (and probably still think) that in any case the Security Council has the power to stop the Court at any time, even permanently. The real problem with amending article 16 is the permanent five.
It is often said that involving the General Assembly in deferral of prosecution would only 'further politicise' the Court. But it is already politicised. I don't see why making the politicisation of the Court more democratic, by involving the General Assembly, aggravates a problem. In that sense, the African Union proposal makes fine sense. The heart of the matter, I think, is that there is indeed a role for political considerations in the identification of situations for prosecution before the Court, and in decisions to defer prosecution. It is problematic that these decisions are essentially the remit of a single individual, the Prosecutor of the Court. Leaving the Security Council as the only body able to bring such political considerations to bear is also unacceptable, for obvious reasons.
The African Union has probably not found the answer to this conundrum, but its amendment helps in the discussion about how to relate political considerations to choices about prosecution. The current mantra that suggests the Prosecutor is 'independent' and indifferent to political matters doesn't make sense and doesn't correspond to reality. Like all of us, he has his own views about the world and they are reflected in the determinations that he makes. But many continue to promote the fiction that the Prosecutor is guided only by judicial criteria, such as the mysterious, enigmatic concept of 'gravity'.
There is a section in the report about impunity in Sudan. It seems accurate enough, except I tend to think it is beside the point. We can all agree that impunity in Sudan needs to be addressed, yet we must also bear in mind the importance of ending existing conflicts and preventing new ones in that unhappy country. African political leaders seem in broad agreement that prosecuting Al Bashir at this sensitive point, with a referendum on the breakup of the country only weeks away, will do more harm than good. Their views are largely dismissed by what I will call the 'international justice community'. Personally, I am inclined to think that the views of African political leaders are extremely important. I would trade a prosecution of Al Bashir for the promise of peace in Sudan in a heartbeat.

Moscow Ban on Gay Pride March Violates European Convention on Human Rights

In Alekseyev v. Russia, 21 October 2010, a Chamber of the European Court of Human Rights held that Russia had violated the right to freedom of peaceful assembly (article 11 of the European Convention) by imposing a ban on Gay Pride marches in 2006, 2007 and 2008.

Moscow authorities had justified the ban because there had been opposition and even threats of violence from certain religious extremists. According to the Court,

the Government failed to carry out an adequate assessment of the risk to the safety of the participants in the events and to public order. It reiterates that if every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority opinion (para. 77).

The Court noted that the mayor of Moscow had frequently expressed his determination to prevent gay parades and similar events from taking place, apparently because he considered them inappropriate. Also, Russia’s observations before the Court said ‘such events should be banned as a matter of principle, because propaganda promoting homosexuality was incompatible with religious doctrines and the moral values of the majority, and could be harmful if seen by children or vulnerable adults’. The Court said ‘these reasons do not constitute grounds under domestic law for banning or otherwise restricting a public event’ (para. 79). It said ‘it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority’ (art. 81).

Responding to Russia’s claim that it had a ‘margin of appreciation’ on such matters, which were not subject to a European consensus, the Court explained:

There is ample case-law reflecting a long-standing European consensus on such matters as abolition of criminal liability for homosexual relations between adults (see Dudgeon, cited above; Norris v. Ireland, 26 October 1988, Series A no. 142; and Modinos v. Cyprus, 22 April 1993, Series A no. 259), homosexuals’ access to service in the armed forces (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, ECHR 1999-VI), the granting of parental rights (see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, ECHR 1999-IX), equality in tax matters and the right to succeed to the deceased partner’s tenancy (see Karner v. Austria, no. 40016/98, ECHR 2003-IX); more recent examples include equal ages of consent under criminal law for heterosexual and homosexual acts (see L. and V. v. Austria, nos. 39392/98 and 39829/98, ECHR 2003-I). At the same time, there remain issues where no European consensus has been reached, such as granting permission to same-sex couples to adopt a child (see Fretté v. France, no. 36515/97, ECHR 2002-I, and E.B. v. France [GC], no. 43546/02, ECHR 2008‑...) and the right to marry, and the Court has confirmed the domestic authorities’ wide margin of appreciation in respect of those issues.

The Court added that even if there was no European Consensus, this was no relevant, ‘because conferring substantive rights on homosexual persons is fundamentally different from recognising their right to campaign for such rights’ (para. 84).

The Court also said:

There is no scientific evidence or sociological data at the Court’s disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities’ social status, would adversely affect children or “vulnerable adults”. On the contrary, it is only through fair and public debate that society may address such complex issues as the one raised in the present case. Such debate, backed up by academic research, would benefit social cohesion by ensuring that representatives of all views are heard, including the individuals concerned. It would also clarify some common points of confusion, such as whether a person may be educated or enticed into or out of homosexuality, or opt into or out of it voluntarily. (para. 86)

Winter School on Rights of Migrants

The University of Bologna is hosting a winter school on the European Convention of Human Rights and the rights of migrants, from 10 to 14 January 2011. For information, click here.

European Court Considering CIA Rendition

The European Court of Human Rights is considering a case involving the extraordinary rendition programme operated by the CIA. The case involves A german citizen, Khaled El-Masri, and is filed against Macedonia.
According to the Justice Initiative of the Open Society Institute, in December 2003  Macedonian security forces seized Khaled El-Masri at the request of the United States and held him—incommunicado—for 23 days. El-Masri was then handed over to the CIA and flown to a detention center in Kabul, Afghanistan, where he was confined in appalling conditions, interrogated, and abused. After several months, El-Masri was finally released and dumped on a roadside in Albania.
The case has been ‘communicated’, a very preliminary stage but one that most applications to the European Court do not surmount. Macedonia must answer specific questions about the application by El-Masri. Next, the Court will consider whether to actually hear the case. The Justice Initiative explains:

With this case, the European Court has gone beyond the U.S. judiciary in responding to the torture and abuse associated with unlawful rendition. In 2007, the U.S. Supreme Court declined to revisit an appellate court’s ruling that the state secrets privilege required dismissal of El-Masri’s case. The U.S. has never publicly acknowledged rendering El-Masri. Despite overwhelming evidence of its collaboration, to date Macedonia has also denied that El-Masri was detained illegally on its territory or handed over to the CIA.

National investigations related to El-Masri’s rendition are said to be ongoing in Germany and Spain. Poland, Lithuania, and the UK are also engaged in investigations about extraordinary rendition more broadly.

Death Penalty Resolution at the General Assembly

After a one-year gap, the death penalty resolution is back on the agenda of the United Nations General Assembly. I've reported in past years on the successful resolutions - the first in 2007 and the second a year later, with an ever-so-slightly greater majority. Now we're back to, in a sense, take the temperature of the United Nations member states on the issue.
As the recent report of the Secretary-General indicates, the momentum towards reduction of the death penalty (for retentionist states) and full abolition continues without interruption. (By the way, for Chinese readers, here is the report of the Secretary-General in Chinese). Therefore, one should expect the resolution to meet with similar success as in past years. Again, there ought to be a slightly greater majority.
Of interest will be the energy that certain retentionist states devote to fighting the resolution. In the past, the political battle has been led by States like Egypt and Singapore. But the recent report of the Secretary-General indicates that in practice, the use of the death penalty in these States is declining. Attitudes must therefore be changing even in these States. Other vocal supporters of capital punishment have been concentrated in the English-speaking countries of the Caribbean. But in the past decade there have been only a couple of executions, and in practice they seem to have lost their enthusiasm for executions.
Will such objectively measurable phenomenon be reflected in the positions they adopt within the General Assembly? We'll see in the coming weeks.
A draft text of the resolution was submitted a couple of weeks ago. Now, meetings with possible co-sponsors are underway, with a view to getting a final draft by the middle of the coming week (3 or 4 November). At the same time, a report from the Secretary-General on implementation of the earlier resolutions (A/RES/62/149 and A/RES/63/168) will be issued. The draft will be voted on by the Third Committee of the General Assembly sometime between 4 and 8 November.

Racism in Sport

A report on racism, ethnic discrimination and the exclusion of migrants and minorities in sport has been issued by the EU Fundamental Rights Agency. It contains the results of interviews with representatives of sport federations, player and athlete organisations and non-governmental organisations from across the EU, together with an analysis of secondary data and information. The research findings show that in many sports across the European Union, minorities and migrants are underrepresented, particularly in the management positions of sport organisations. Women and girls with a minority or migrant background are particularly underrepresented. The findings also highlight the fact that although media focus tends to be on racist incidents perpetrated in professional sport, such incidents also occur in amateur sports – not only by fans, but also between players, referees and club officials. For a copy of the report, click here.

This has the makings of a great doctoral thesis topic, and a book. I think of the United States, where discrimination in professional sport was a significant component of the fight for racial equality. Or South Africa, where the boycott of national teams during the apartheid era is said to have had more impact within the country than economic sanctions. An imaginative student could put together a fascinating package on the human rights issues involved in sport, both amateur and professional.

 

China and Censorship

I've been in China the past week, and as in the past I was unable to access my blog.
Chinese censorship of the internet is more and more bizarre because it is obvious that it doesn't really work. It is a leaking sieve. When I tell Chinese friends and colleagues about my frustration accessing the blog, they explain that there are well-known techniques of circumventing censorship that virtually everyone can use. I'm not there long enough to bother learning how to do this. But it seems that any Chinese person who would be interested enough to read a blog, in English, discussing issues of interest to post-graduate students, will find their way to it.
I had a great visit, and managed to deliver lectures at universities in Shanghai, Harbin and Beijing, where I met many fine students completing masters and doctoral degrees. My lectures were on use of the death penalty for drug crimes and introduction of the crime of aggression into the Rome Statute of the International Criminal Court. Autumn is a fine time of year. The air in Beijing was crisp and clear. Harbin is already getting cold, and they have had their first snow, although it had melted when I was there. Shanghai was buzzing with Expo, but I didn't have time for a visit. I was in Shanghai so briefly that I would not have had time to wait in even a single queue at the world's fair (they are said to take several hours). Apparently Expo has 1 million visitors each day.
This seems to be a difficult time for human rights in China, with more repression than at some times in the past. I was curious to learn more about recently announced proposals to remove 13 death penalty crimes from the criminal law. Colleagues in China suggested that the efforts of our EU-China exchanges on capital punishment made a positive contribution to the debate. It is difficult to know how significant this reform really is, because we have no idea of the number of people who may have been executed for such crimes in the past. Last week I was told by reliable sources that the numbers affected are significant and that the reform - still not completed - is an important one.
When I visit China - this was probably my 20th trip in a decade - I cannot say I meet a cross section of Chinese society. My contacts are with academics and students, mainly. They are perhaps not 'typical' Chinese, but nor are they members of the new aristocracy. In that sense, they are average and representative, and they seem to come from all social backgrounds given that Chinese higher education seems to be slighly more egalitarian - in terms of access-  than in the west. And most of them have very liberal and progressive attitudes towards human rights. My impression is that while many of them are disturbed about the big human rights issues, like the death penalty, torture and 'reform through labour', what really matters to them is the somewhat intangible, nebulous notion that we call 'freedom'. They drive the same cars we do, have the latest mobile phones, and drink latte at Starbucks. But there is something that those of us who live in western democracies take for granted and that our Chinese friends are missing: freedom to say what they want, when and where they choose, without fear of arrest or persecution. Even little things, like the annoying but ineffective blocking of access to my blog, remind them of this every single day.

Iraq and Wikileaks

On Saturday, the Guardian published a special section of the newspaper about the huge repository of documents that has been posted on Wikileaks about the war in Iraq. The information is stunning in its scope. These are American military records that were released by a so-called whistle-blower. It seems that despite their claims to the contrary, the Americans were actually counting the deaths, and that the total for the conflict exceeds 100,000. There are appalling reports of the behaviour of military contractors, of systematic torture, of summary executions, and so on. It makes the conduct of Israeli forces in Gaza that was documented in the Goldstone Report look almost benign by comparison.
What sort of accountability can we expect for this? Will the United Nations Security Council or the Human Rights Council call for a report, as was the case with Gaza? Will the Office of the High Commissioner do a mapping exercise, as was the case with the Democratic Republic of the Congo?
Almost five years ago,  the Prosecutor of the International Criminal Court declined to pursue investigations in Iraq into the conduct of British troops, over whom the Court may exercise jurisdiction, because the incidents of killing and torture were not deemed serious enough. Perhaps he should reassess this in light of the new information.
It will be pointed out that these documents concern US troops, and not British forces, and that US troops are not subject to the jurisdiction of the International Criminal Court. But there is a serious argument that the British are also liable for crimes perpetrated by the Americans, because they were part of a joint criminal enterprise to commit a crime within the jurisdiction of the Court. That crime is aggression. Although the Court cannot yet prosecute the crime of aggression, it can prosecute war crimes and crimes against humanity perpetrated as part of a joint criminal enterprise to commit a 'crime within the jurisdiction of the court' (art. 25(3)(iv) of the Rome Statute). Even in 2003, the crime of aggression was a 'crime within the jurisdiction of the court' in accordance with article 5 of the Statute.
The latest documents provide much evidence of war crimes committed by or with the complicity of American troops. At Nuremberg, the International Military Tribunal famously stated that the crime of aggression was 'the supreme international crime', and that it encompassed the evil of the other crimes. Is this not the case with Iraq? Without the crime of aggression, committed when the US and the UK invaded Iraq in manifest violation of the Charter of the United Nations, the war crimes and crimes against humanity would not have taken place. War itself is the supreme evil.

Lad Chatterley's Lover and Censorship

At our Irish-American retreat last week, we held a fascinating session on censorship. It focused on Ireland, and we didn’t dwell on the issue in other countries. Yesterday’s Guardian had a great account of the Lady Chatterley trial in the United Kingdom, by the distinguished barrister Geoffrey Robertson.

Geoff’s latest book The Case of the Pope: Vatican Responsibility for Human Rights Abuses, published by Penguin, is also well worth a read.