On 50-year sentences for tyrants

Article 10(1) of the International Covenant on Civil and Political Rights states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Paragraph 3 of article 10 says

The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.

It is hard to rejoice about a 50-year sentence being imposed on a 65-year old, no matter how heinous and terrible the crimes he committed may have been.

Fifty years is not the highest sentence ever imposed by an international criminal tribunal. A few years ago, the same Special Court for Sierra Leone imposed a sentence of 52 years. But none of the other tribunals has ever imposed such a high sentence. Not even close.

The judges of the Special Court will explain that they need to do this because they cannot impose a sentence of life imprisonment, which seems to be excluded by the Statute of the Special Court. At the International Criminal Tribunal for the former Yugoslavia, this option is available, although it has only rarely been used.

At the International Criminal Court (which has never yet imposed a sentence), there is a maximum sentence of 30 years. The judges may also impose a life sentence “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”. However, the sentence is subject to a mandatory review after 25 years.

What is troubling about the 50-year sentence given to Charles Taylor is the implicit message that he should never be released. There is provision in the Rules of Procedure and Evidence for a reduction in the sentence at some point in the future. But nothing in the Statute of the Court or in the Rules gives Charles Taylor the right to seek reduction in the sentence at any point in time.

There is the haunting precedent of Rudolf Hess, the only Nazi defendant to be given a life sentence at Nuremberg. Of course, the majority were sentenced to death. But some of the Nazi villains, like Albert Speer, were given sentences of 20 years. Hess server more than thirty years of his sentence, unable to achieve any form of release because of differences of opinion at the political level. He tried, unsuccessfully, to bring his case to Strasbourg. He finally committed suicide.

The Special Court for Sierra Leone could have achieved the same result with a sentence of 25 or 30 years. Indeed, it is for this reason that the other international criminal tribunals, as well as justice systems of most countries, do not generally impose custodial sentences with fixed terms greater than 25 or 30 years.

As article 10 of the Covenant recalls, a detention regime must never lose sight of  the ‘inherent dignity of the human person’. The ‘essential aim’ must be ‘reformation and social rehabilitation’. If we fail to honour his human dignity, we damage our own. There is no reason why Charles Taylor cannot be reformed and rehabilitated. This must not be forgotten as the Court attempts to find a sentence that adequately reflects the horror of the crimes that he committed.

More on the Removal of Judge Sow

Yvonne McDermott sends a very helpful and complete account, reproduced below. As the conclusion indicates, the colleagues of Judge Sow decided that his rather frustrated and ineffective attempt to make a short statement at the end of the delivery of the summary of the Taylor judgment makes him 'unfit' to be a judge. They cannot, however, remove him from office. They can only recommend that this be done by the Secretary-General of the United Nations, and this is what they have done. Pending a determination by the Secretary-General, they have suspended him from sitting. The authority for this is Rule 24(iii), which states: 'The Judges shall meet in Plenary to... (iii) Decide on matters relating to the internal functioning of the Chambers and the Special Court.' Suspending a judge from sitting in a case, when the Rules themselves say that he is required to be present at every hearing, seems an extraordinarily serious measure to be based upon such a vague provision.


From the sentencing hearing transcript:
"Before proceeding today, it gives us no pleasure to have to place on record some explanation for the extraordinary situation which occurred at the end of the previous sitting of the Trial Chamber on 26th of April, 2012, on which date the Trial Chamber delivered its summary judgement.
On that date, at the conclusion of the proceedings, the Alternate Judge, without any notice to the Trial Chamber, proceeded to deliver his own opinions from the bench on the judgement that had just been delivered on these proceedings and on the Special Court itself. What the Alternate Judge did was in contravention of the agreement, the Statute, and the Rules which govern this Court and amounted to misconduct. The purpose of attaching an Alternate Judge to a Trial Chamber is that he can be designated to replace a sitting Judge if that Judge is unable to continue sitting. See Article 12 of the Statute. No such designation has been made in the present case. Further, during the proceedings, the Alternate Judge may pose questions through the Presiding Judge, but there is no other entitlement for an Alternate Judge to speak during court
proceedings. See Rule 16 bis (B). Moreover, an Alternate Judge not have any say in decisions of the Trial Chamber. He is obliged to be present during deliberations off the Trial Chamber, but he is not entitled a vote thereat. See Rule 16 bis (C). It follows that it was wrong for the Alternate Judge, who has not been designated to replace a sitting Judge, to offer an opinion, whether dissenting or concurring, on a judgement of Trial
Chamber.

The behaviour of Judge Sow was referred by the Council of Judges to a plenary meeting of the Judges of the Special Court. We three Trial Chamber Judges abstained from voting at that plenary.
I will now read onto the record the resolution of the plenary.

'Resolution on complaint by Trial Chamber II against Justice Malick Sow. The Judges of the Special Court for Sierra Leone sitting on the 7th and 10th of May, 2012, in the 17th plenary of Judges, pursuant to Rule 15 bis (B) of the Rules of Procedure of Evidence of the Special Court which mandates the Council of Judges who refer an allegation of unfitness of a Judge to sit to the plenary if it determines that, one, the allegation is of a serious nature, and two, that there appears to be a substantial basis for same.
Pursuant also to Rule 24(iii) of the Rules, which provides that the Judges shall meet in plenary to decide upon matters relating to the internal functioning of the Chambers and the Special Court, seized of the complaint by the Judges of Trial Chamber II, dated 26th of April, 2012, against Justice Malick Sow, Alternate Judge, considering the response of Justice Malick Sow, dated the 1st of May, 2012, to the complaint, having also considered the views and recommendations of the Judges on the matter and the response of Justice Malick Sow to those views
pursuant to Rule 15 bis (C) have reached the following conclusions:

1. The plenary declares that Justice Malick Sow's behaviour in court on the 26th of April, 2012, amounts to misconduct rendering him unfit to sit as an Alternate Judge of the Special Court.
2. The plenary recommends to the appointing authority pursuant to Rule 15 bis (B) to decide upon the further status of Justice Malick Sow.
3. Pursuant to Rule 24(iii), the plenary directs Justice Malick Sow to refrain from further sitting in the proceedings pending a decision from the appointing authority.

Done in Freetown, Sierra Leone, this 10th day of May, 2012, for and on behalf of the plenary, signed by the President Justice
Jon Kamanda.

What Happened to Judge Sow?

Earlier this week, the full judgment in the Charles Taylor case was issued. It runs to more than 2,500 pages – something that earns it a place in the Guinness Book of World Records – and I hope readers of the blog will understand if a detailed analysis is not yet forthcoming. But there is something puzzling on page 1 of the final judgment. The name of Judge Malik Sow is missing.

Judge Sow served throughout the trial as an Alternate Judge. Rule 16bis, entitled Alternate Judges, says ‘An alternate Judge … shall be present at each stage of the trial or appeal to which he or she has been designated.’ The sentencing hearing was part of the trial.

 Judges at the Special Court for Sierra Leone are appointed either by the Secretary-General of the United Nations or by the Government of Sierra Leone. Judge Sow was appointed by the Secretary-General. He was present throughout the Trial and for the delivery of the judgment on 26 April 2012. His name appears on the summary of the judgment, which was distributed on 26 April 2012.

When the judgment was first issued in summary form, a few weeks ago, Judge Sow made a public objection which is discussed in an earlier post on the blog.

But apparently he was not present when the sentencing hearing took place last week. There is nothing on the website of the Court that I could find to explain this. I was told, informally, that the Plenary of the Court, composed of all of the judges, issued a decision removing him from case. This week's full judgment is supposed to include a 'Procedural History' as an annex, and surely that is where such a  development must be explained. But it is missing from the full version of the judgment that was distributed.

Can readers of the blog assist in clarifying the procedure, and the legality, of removing a judge while a case is in progress?

Judge Sow still appears on the website as a judge of the Court. I don't believe he has been removed from office. In any case, I think that can only be done by the Secretary-General of the United Nations.

The Rules of Procedure and Evidence says a judge may not sit in a case ‘in which his impartiality might reasonably be doubted on any substantial ground’ (Rule 15). But from what I understand of the events in the courtroom on 26 April 2012 this is not the problem. Nothing Judge Sow said that day suggests a lack of impartiality.

It is also possible for a judge to be deemed ‘unfit to sit’ (Rule 15bis). It provides for a rather complex procedure involving referral by the President to the Council of Judges who then refer the matter to the Plenary Meeting which makes a recommendation to the body which appointed the judge. But this is really a procedure for removal from office, it seems. And presumably Judge Sow has not been removed from office. So should he not have been in the courtroom for the sentencing hearing, and should his name not have appeared on the judgment? How can a judge be part of a summary of a judgment yet absent from the judgment itself?

There may be a good explanation for all of this. It should be public. It is not good for international justice that such develops as removal of a judge from a trial be cloaked in mystery. 

Samuel Moyn, Peng-chun Chang and the Universal Declaration of Human Rights

It isn’t every day that the name of Peng-Chun Chang appears in the New York Times. But there it is, in today’s newspaper, in an op-ed written by Columbia University historian Samuel Moyn. Professor Moyn is the author of The Last Utopia: Human Rights in History, which was published a couple of years ago.

Peng-chun Chang and Eleanor Roosevelt in 1948.

The occasion for Moyn’s article is the release of Chinese activist Chen Guangcheng a few days ago. Professor Moyn mentions Peng-Chun Chang because he uses the recent events to return to the thesis he sets out in his book about the insignificance of the Universal Declaration of Human Rights. Chang was the Chinese representative on the Commission on Human Rights when the Universal Declaration was being drafted in 1947 and 1948. He has been described as one of the intellectual heavyweights of the Commission at the time. His contributions to the drafting of the Universal Declaration were enormous.

(On visits to China in recent years, I’ve frequently referred to Chang as the person responsible for the vital Chinese contribution to the Universal Declaration. Chinese colleagues often dismiss Chang as a ‘nationalist Chinese’ – as does Moyn, by the way – without recognizing that Change was, at the time, the representative of ‘one China’. I think China should today be proud of Chang and his role in the drafting of the Universal Declaration.)

In today’s New York Times, Professor Moyn repeats his unfortunate and rather simplistic analysis of the Universal Declaration: ‘The 1948 Universal Declaration of Human Rights — which Peng-Chun Chang, a representative of Nationalist China, helped draft — had virtually no impact on world politics in its time.’ Professor Moyn says human rights did not become a significant factor in international relations until the mid-1970s, when the activities of Soviet dissidents, the election of Jimmy Carter, and the award of the Nobel Peace Prize to Amnesty International transformed the situation. He is dismissive of writers who have spoken of the importance of the Declaration and of its drafters, like Mary Ann Glendon, Johannes Morsink, Elizabeth Borgwaldt and Paul Gordon Lauren, for being ‘celebratory’.

But one can acknowledge the significance of the 1970s in terms of the development of international human rights without denigrating the richness of the late 1940s. This is where Professor Moyn is in error. He also suffers from the same celebratory fervour of those he criticizes in failing to recognize the ambiguities of the 1970s.

His analysis is also a bit too US-centric. It does not, for example, acknowledge the 1970s as a period when human rights in Europe improved dramatically, and pulled ahead of the United States, which was heading into the tailspin that led to Abu Ghraib and Guantanamo. Take as an example the issue of capital punishment, still practised in France and Spain in the 1970s, at a time when it had been abolished judicially in the United States. Europe went on to universal abolition while the United States Supreme Court reversed itself and reinstated the practice.

By focussing on the United States, as he does, Professor Moyn also does not adequately assess the role of the ‘third world’ in the development of modern human rights. There is a tendency – still prevalent today – to view international human rights as a gift from the Global North to the Global South, exported by modern day missionaries from the civilized to the uncivilized.

But the history of human rights within the United Nations indicates a very important role for the newly independent countries who joined the organization in the 1960s and who set the elimination of apartheid at the top of their agenda. At the time, Europe and America were running interference for the racist regime in Pretoria, providing it political, economic and moral support. Important breakthroughs in terms of the legal clout of international human rights norms and institutions flowed from the insistence of the ‘third world’ on dealing with this blight. The first efforts to pierce the veil of state sovereignty were about apartheid, and they were driven by the Global South.

The Universal Declaration of Human Rights was produced in the ferment of the post-Second World War lawmaking process. It was not alone. Other important legal developments took place, including the adoption of the 1948 Genocide Convention and the 1949 Geneva Conventions, not to mention the immense progress manifested in the Charter of the United Nations itself, and the international trials at Nuremberg and Tokyo.

The Cold War intervened to prevent further developments. That is not the fault of the Universal Declaration. Indeed, the Declaration is like many legal instruments that are adopted in periods of change and unrest. They are like seeds in a spring garden, and require water and warmth to germinate and grow. That there is a period of apparent dormancy until this process takes place does not mean that nothing is going on. One could say the same about the fourteenth amendment to the United States constitution, which was adopted in the aftermath of the Civil War but which only delivered its promise in the 1950s and 1960s.

Samuel Moyn has very pertinent observations about developments in human rights in the 1970s, but they do not need to be premised on downgrading the importance of the Universal Declaration of Human Rights and the period in which it was drafted. The 1940s were a period of huge tension and contradiction. The world was struggling to bury a past characterized by colonialism and global warfare. Out of this crucible emerged developments of immense importance, including the Universal Declaration of Human Rights. He should adopt a more nuanced and subtle understanding of the development of human rights, one in which there is room for recognition of the significance of both the 1940s and the 1970s.

For the sake of full disclosure, my current writing project is a compilation of the drafting history of the Universal Declaration of Human Rights. The materials consist of more than a million words. They are organized chronologically accompanied by annotations and indexes that should make these relatively obscure materials much more accessible to scholars. Within the coming weeks I expect to see page proofs of this three-volume collection of the travaux préparatoires of the Declaration. It is to be published by Cambridge University Press early in 2013. The documents reveal the richness of the debates, the significance of the text, and the inspired brilliance of many of the Declaration’s drafters, including Eleanor Roosevelt and Peng-chun Chang.

First Ratification of Aggression Amendment to Rome Statute

Liechtenstein is the first State Party to the Rome Statute of the International Criminal Court to ratify the amendments incorporating the crime of genocide within the jurisdiction of the Court. Thirty such ratifications are required for the amendments to enter into force. In addition, the Assembly of States Parties will be required to adopt a resolution confirming the entry into force of the amendments. This cannot take place before 2017.
This is a first step towards completing the process that began with adoption of the amendments at the Kampala Review Conference in June 2010.
It is fitting that Leichtenstein be the first State Party to ratify, because its Permanent Representative to the United Nations, Ambassador Christian Weneweser, and his key aide, Stefan Barriga, played an indispensable role in the negotiation of the amendments. Together with German academic Claus Kress, Stefan recently published a collection of the drafting history of the aggression amendments.
Obtaining the remaining 29 ratifications is complicated by the fact that the NGO community, which did so much to promote ratification of the Statute itself, is dragging its heels. Hopefully the big NGOs will realize the mistake they made with their indifference to the aggression amendments. One way or another, however, there can be little doubt that the thirty ratifications will be obtained by 2017 and that the resolution of the Assembly of States Parties will be adopted without difficulty. Several States have already indicated that they will follow the example of Liechtenstein.

Charles Taylor Judgment Suggests a More Modest Level of Participation in the Sierra Leone Conflict

To much general rejoicing, Charles Taylor was convicted by the Special Court for Sierra Leone in a long-awaited judgment delivered on 26 April 2012. The delays in issuing the judgment are inexcusable. And we are in fact still waiting for the real judgment. Instead, the judges have given us a 44-page summary.

The Court’s press release on the judgment makes the simplistic assertion that ‘Charles Taylor was convicted on all 11 counts‘. This somewhat distorts the reality, because much of the Prosecutor’s case was not in fact upheld in the decision.

The press release also boasts that ‘Charles Taylor is the first head of state to be indicted, tried and convicted by an international tribunal.’ This is not accurate. Admiral Doenitz, who succeeded Hitler as head of state of the Third Reich in April 1945, was indicted, tried and convicted by the International Military Tribunal.

Many Prosecution Charges were Unproven

The summary of the judgment begins by reviewing various atrocities perpetrated in Sierra Leone during 1998 and 1999 associated with the civil war. As a general rule, it concludes that they were indeed committed. This is hardly surprising. It is consistent with the earlier decisions of the Court as well as the findings of the Truth and Reconciliation Commission. The issue was not of course whether the atrocities were committed but the role played in them by Taylor.

It has long been part of the lore about the Sierra Leone conflict that Charles Taylor was its mastermind behind. But this is not what the judgment finds:

62. … Contrary to the Prosecution’s submissions, the evidence did not establish that prior to 1996, Taylor, Sankoh [leader of the Revolutionary United Front]  and Dr. Manneh [of The Gambia] participated in any common plan involving the crimes alleged in the Indictment, nor in fact, that the three men even met together. Furthermore, the evidence was that during the pre-indictment period Sankoh operated independently of the Accused, and that while he relied at times on Taylor’s guidance and support, Sankoh did not take orders from the Accused.

63. During the pre-Indictment period the Accused provided the RUF with a training camp in Liberia, instructors, recruits and material support, including food and other supplies. However, again contrary to the Prosecution’s submissions, the evidence did not establish that the RUF were under the superior authority of the Accused or the NPFL chain of command, or that they were instructed in NPFL terror tactics.

64. The Accused supported the invasion of Sierra Leone in March 1991. NPFL troops actively participated in the invasion, but the Prosecution failed to prove that the Accused participated in the planning of the invasion. The Prosecution also failed to prove that the support of the Accused for the invasion of Sierra Leone was undertaken pursuant to a common purpose to terrorize the civilian population of Sierra Leone. Rather, the evidence shows that the Accused and Sankoh had a common interest in fighting common enemies, namely ULIMO, a Liberian insurgency group in Sierra Leone, and the Sierra Leonean Government forces, which supported ULIMO.

By the time of the attacks on Freetown and elsewhere in Sierra Leone during 1998 and early 1999, Charles Taylor’s alliance with the RUF and the AFRC seems to be beyond dispute. The judgment reviews how he provided assistance in various forms, including small numbers of soldiers as well as sometimes substantial quantities of weapons and ammunition. Some of this was paid for in diamonds. Again, nothing really surprising here. The big question – and the Trial Chamber only really begins to consider this at page 31 - is ‘Knowledge of the Accused of Crimes Committed in Sierra Leone’. The issue, for the Trial Chamber, is not whether Taylor ordered, directed or commanded the atrocities perpetrated in Sierra Leone - this is not established by the judgment - but rather whether he knew that they were taking place.

As the Chamber notes, public reports indicated that the rebel forces with which Taylor was aligned were committing various atrocities, including unlawful killings, sexual violence, physical violence, looting, conscription and use of child soldiers, abduction, terrorism, and other atrocities. It was ‘public knowledge’, says the Trial Chamber, so it is not a difficult leap to concluded that Charles Taylor also knew.

The Prosecutor failed to prove that Charles Taylor was the guiding spirit behind the rebel groups in Sierra Leone. It even failed to prove that the troops from Liberia that joined the insurgents in Sierra Leone were under his control: ‘the Trial Chamber finds that even if they were sent to Sierra Leone by the Accused, there is insufficient evidence to find beyond a reasonable doubt that they remained under the effective command and control of the Accused once in Sierra Leone’ (para. 140).

The Prosecutor had also alleged that Taylor was part of a ‘joint criminal enterprise’ whose purpose was ‘to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.’ (para. 23 of the indictment of 7 March 2003).

The summary of the judgment says the Prosecutor failed to prove this. (para. 144).

Taylor stands convicted because he provided significant assistance to the various rebel groups within Sierra Leone, knowing that they were perpetrating atrocities in the course of their campaigns. Consequently, he is found guilty of ‘aiding and abetting’.

What did Taylor Know?

What emerges from the judgment of 26 April 2010 is a more modest vision of Taylor’s involvement in the Sierra Leone conflict. He was assisting combatant factions in full knowledge that they were perpetrating atrocities. But the claim that he was the evil genius who manipulated the war throughout the 1990s stands unproven.

This assessment by the Trial Chamber is more consistent with the findings of the Truth and Reconciliation Commission. One of the intriguing features of the transitional justice mechanisms in Sierra Leone is that the two main bodies, the Special Court and the Truth Commission, have not necessarily shared the same vision of the conflict. The Court has focused on external factors, blaming Taylor, Ghaddafy and others for the civil war. The Truth Commission, on the other hand, tended to downplay the role of external actors like Taylor and proposed an analysis that found the main cause of the conflict to be the decades of tyranny and corruption within Sierra Leone. With its more modest perspective on the involvement of Taylor, the 26 April 2012 judgment confirms the narrative of the Truth and Reconciliation Commission.

The Trial Chamber rejects the joint criminal enterprise thesis. We shall have to await the full judgment to assess properly the reasoning of the Chamber. From the summary, it seems this was mainly based upon the facts of Taylor’s own personal role rather than the existence of the joint criminal enterprise. Elsewhere, including earlier posts on this blog, I have expressed concern about the breadth of a joint criminal enterprise notion that is ultimately premised on an enterprise that is not in fact criminal. Trying to overthrow a government and take power is not an offence under international criminal law. Facilitating the job of the Prosecutor by convicting individuals for acts that may have been a foreseeable consequence of such an enterprise – where the enterprise is not unlawful in itself – and in the absence of evidence that the accused actually knew of the crimes or intended that they be committed is a bridge too far. It unacceptably stretches first principles about guilt in criminal law.

The conclusion of the Trial Chamber in Charles Taylor seems based on uncontroversial principles. He or she who provides significant assistance to a participant in a conflict knowing that the participant is perpetrating atrocities against civilians is guilty of aiding and abetting such crimes. This is straightforward. And it leads in an interesting direction.

Atrocities were perpetrated on all sides in the Sierra Leone conflict. This emerges from the case law of the Special Court, as well as from the Report of the Truth and Reconciliation Commission. It was notorious at the time, in 1998 and 1999. So what are we to make of those who supported the other side in the conflict? For example, the Blair government and the United Kingdom provided assistance and support to the pro-government forces. The pro-government forces had their own sinister militias, involved in rapes, recruitment of child soldiers, amputations, cannibalism and other atrocities. Two of those involved were convicted by the Court and a third, who was a minister in the government supported by the UK, died before the trial completed. What is the difference between Blair and Taylor in this respect?

Moving beyond Sierra Leone, can we not blame the French government for aiding and abetting genocide, given its support for the racist Rwandan regime in 1993 and 1994? The crimes of the regime were well-publicised, not only by an NGO commission of inquiry but also by Special Rapporteurs of the United Nations. And yet the French continued to provide assistance, in personnel, arms and ammunition, to the Habyarimana regime.

What about those who supported the various sides in the war in Bosnia? Or in Sri Lanka? Are American officials who backed Saddam Hussein when he perpetrated atrocities in Iran during the 1980s also guilty of aiding and abetting in war crimes and crimes against humanity? What of those western states that continued to bolster the apartheid regime in South Africa during the 1970s and 1980s, when they were fully aware of the racist system that has been characterised as a crime against humanity.

It takes little imagination to appreciate the ramifications of the conviction of Charles Taylor for aiding and abetting.

The future of ‘joint criminal enterprise’

It may well be that the Appeals Chamber will restore the joint criminal enterprise charge against Charles Taylor. Only time will tell. When the theory first emerged in 1999, in a ruling of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, many were concerned that it stretched the net of criminal guilt too far. Under the so-called 'third form' of joint criminal enterprise (or JCE III), individuals would be convicted not only for serious crimes that they knew of or intended but for those that were objectively foreseeable, to the extent that they belonged to a ‘joint criminal enterprise’ with others. In Bosnia, this ‘joint criminal enterprise’ involve ethnic cleansing, an international crime in its own right.

But the indictments of the Special Court for Sierra Leone took this a step further by charging an ‘enterprise’ that was not even criminal. So what had been known in the jargon as JCE III mutated into JE III. Then the disease spread to the International Criminal Court, where it has reemerged as the doctrine of co-perpetration. There is a manifestation of this in the recent judgment of the Trial Chamber of the International Criminal Court in Lubanga.

The majority of the Trial Chamber concluded that Lubanga had been part of a ‘plan’, and that as a result he could be convicted of crimes perpetrated by others even in the absence of evidence that he actually knew of them or intended them. Because he was part of a ‘plan’, he could be convicted of acts perpetrated by others to the extent that there was ‘a sufficient risk that, if events follow the ordinary course’ they would take place. Accordingly,

984. In the view of the Majority of the Chamber, the prosecution is not required to prove that the plan was specifically directed at committing the crime in question (the conscription, enlistment or use of children), nor does the plan need to have been intrinsically criminal as suggested by the defence. However, it is necessary, as a minimum, for the prosecution to establish the common plan included a critical element of criminality, namely that, its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed.

The reference to a 'critical element of criminality' is important, but the scope of a 'plan' that is not in itself criminal but that has a 'critical element of criminality' is simply too nebulous. Judge Fulford dissented from the Majority. While his views have been presented as being more friendly to the Prosecutor, I do not find this to be the case. In particular, he does not endorse the inquiry about ‘sufficient risk’, which he notes is not in the Statute and has only been added by some of the decisions.

Drama in the Courtroom

Delivery of the decision in Charles Taylor was associated with a most unprecedented development. It seems that when the reading of the judgment concluded, the reserve or stand-by judge, Malick Sow, began to express his dissent, and his view that Taylor should be acquitted. Here is the account provided by Kirsty Sutherland of the International Criminal Law Bureau:

In an unexpected turn of events, as Justice Lussick (Presiding), Justice Doherty and Justice Sebutinde rose to leave the courtroom after delivering the verdict, Justice Sow addressed the Court:

“The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”

Hearing the voice of their counterpart did not deter Justices Lussick, Doherty and Sebutinde from walking out. Justice Sow’s microphone immediately cut out and a curtain was drawn across the public gallery. Nonetheless, he persisted to air his views to those present, unaided by a microphone.

There is obviously more to this story. Perhaps readers of the blog can contribute.

Since writing these words, Diane Amann has referred me to a more thorough description of the events on IntLawGrrls.

Thanks to Jean Allain and Yvonne McDermott.

Put North Korea on Trial

See the op-ed in Thursday's International Herald Tribune by Sir Geoffrey Nice QC and myself.

Katyn at Strasbourg and Nuremberg

In what is known as the Katyn forest massacre, perhaps as many as 20,000 Polish officers and other officials were summarily executed by the Soviets, then buried in mass graves in what is today Belarus.

An application by several relatives of those who were murdered was granted in part by a chamber of the European Court of Human Rights in a decision released last week, in the case of Janowiec et al. v. Russia. The seven-judge chamber was quite divided, as can be seen in the various dissenting opinions. Typically, this sort of case works its way to the Grand Chamber, where 17 judges will re-consider it.

The Court described the massacre as follows:

140. The Court accepts that the mass murder of Polish prisoners by the Soviet secret police had the features of a war crime. Both the Hague Convention IV of 1907 and the Geneva Convention of 1929 prohibited acts of violence and cruelty against war prisoners and the murder of prisoners of war constituted a “war crime” within the meaning of Article 6 (b) of the Nuremberg Charter of 1945. Although the USSR was not a party to the Hague or Geneva Conventions, the obligation to treat prisoners humanely and abstain from killing them clearly formed part of the international customary law which it had a duty to respect. In its declaration of 26 November 2010, the Russian Parliament recognised that the mass extermination of Polish citizens had been “an arbitrary act by the totalitarian State”. It is further noted that war crimes are imprescriptible in accordance with Article I (a) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, to which Russia is a party.

The Court found a violation of article 3 of the European Convention, which prohibits torture and inhuman or degrading treatment or punishment. The violation  concerned the anxiety and frustration suffered by the family members of the victims because of  ‘the Russian authorities’ flagrant, continuous and callous disregard for their enquiries’.

The Court noted that ‘Article 3 requires it to exhibit a compassionate and respectful approach to the anxiety of the relatives of the deceased or disappeared person and to assist the relatives in obtaining information and uncovering relevant facts’ (para. 163). In itself, this was not a novel finding, but never has the Court applied Article 3 to facts that took place so long ago.

Here are the core paragraphs:

164. In conclusion, the applicants suffered a long ordeal during the entire post-war Communist era in which political factors put insurmountable obstacles to their quest for information. The institution of Katyn proceedings gave them a spark of hope in the early 1990s but it was gradually extinguished, in the post-ratification period, when the applicants were confronted with the attitude of official denial and indifference in face of their acute anxiety to know the circumstances of the death of their close family members and their burial sites. They were excluded from the proceedings on the pretence of their foreign nationality and barred from studying the materials that had been collected. They received curt and uninformative replies from Russian authorities and the findings that had been made in the judicial proceedings were not only contradictory and ambiguous but also contrary to the historic facts which, nonetheless, were officially acknowledged at the highest political level. The Russian authorities did not provide the applicants with any official information about the circumstances surrounding the death of their relatives or made any earnest attempts to locate their burial sites.

165. Furthermore, the Court reiterates its constant position that a denial of crimes against humanity, such as the Holocaust, runs counter to the fundamental values of the Convention and of democracy, namely justice and peace (see Lehideux and Isorni v. France, 23 September 1998, § 53, Reports 1998-VII, and Garaudy (dec.), cited above), and that the same is true of statements pursuing the aim of justifying war crimes such as torture or summary executions (see Orban and Others, cited above, § 35). By acknowledging that the applicants’ relatives had been held prisoners in the Soviet camps but declaring that their subsequent fate could not be elucidated, the Russian courts denied the reality of summary executions that had been carried out in the Katyn forest and at other mass murder sites. The Court considers that such approach chosen by the Russian authorities has been contrary to the fundamental values of the Convention and must have exacerbated the applicants’ suffering.

The question now is how much further beyond 1940 it may go following the approach it has taken in Janowiec. Could the Court consider in a similar fashion the repeated denials of Turkey with respect to massacres perpetrated against the Armenians in 1915, an event that we today describe as the Armenian genocide? Readers of the blog will no doubt be able to cite other examples prior to 1940 when European states were responsible for atrocities that they have either denied or whose importance they have dismissed.

In Janowiec, the Court rejected the portion of the application based upon article 2 (‘right to life’). Of course, the actual violation of the right to life took place in 1940, more than half a century before Russia had ratified the European Convention on Human Rights. But the Court has already held that it can exercise jurisdiction with respect to a failure to investigate violations of the right to life, even if it cannot consider the actual killing as such. This is known as the ‘procedural obligation’ associated with article 2. But the Court decided that even that issue was outside its temporal jurisdiction.

The operative date is 5 May 1998, when Russia ratified the European Convention. The Court noted that while there had been investigative steps in the years immediately following the break-up of the Soviet Union, in the early 1990s, ‘no piece of evidence of a character or substance which could revive a procedural obligation of investigation or raise new or wider issues has been produced or uncovered. The Court is therefore bound to conclude that there were no elements capable of providing a bridge from the distant past into the recent post-ratification period and that the special circumstances justifying a connection between the death and the ratification have not been shown to exist.’ (para. 140).

The decision incorrectly describes the treatment of the Katyn case during the Nuremberg Trial (para. 19). The Soviet prosecutors had insisted that the Nazi defendants be charged with responsibility for the massacre. According to the European Court of Human Rights, ‘[t]he charge was dismissed by the US and British judges for lack of evidence’. That’s not quite right. There is no reference whatsoever to the charge in the final judgment. It would be better, perhaps, to say that it was simply ignored. The Chamber of the European Court of Human Rights seems to have entirely forgotten about the French judges, who also signed the final judgement, and about the Soviet judge, who wrote a dissenting opinion but who also chose to say nothing about Katyn.

Prompted by a conference on the subject organised by Michael Scharf at Case Western University last year, I spent some effort researching the treatment of Katyn at Nuremberg and write about this in my new book Unimaginable Atrocities. Critics of Nuremberg often point to the inclusion of the Katyn massacre in the indictment as evidence that the trial was ‘victors’ justice’. But evidence was led by both sides, the Germans and the Soviets, and if the judges found it to be inconclusive that makes perfect sense. Ignoring the whole business was the best they could do at the time. Nuremberg would be vulnerable to legitimate criticism had the judges, or even one of them, blamed the Nazis for Katyn, but that is not what they did.

More Small Steps towards Abolition in the United States

Yesterday, the Connecticut State Legislature voted to repeal legislation authorizing imposition of the death penalty. The bill now goes to the Governor, who has said that he will sign the measure into law.
Connecticut becomes the fifth state in the United States in recent years to have put an end to capital punishment. Some other states have also come very close to repeal of capital punishment provisions.
It may seem like a very small step, and cynics will note that Connecticut has not used the death penalty in recent times. But the importance of such developments will be felt at the Supreme Court, which has developed a doctrine by which the interpretation of the eighth amendment ("cruel and unusual punishment") is informed by legislative developments in the states. For example, in Roper v. Simmonds, decided in 2005, the Supreme Court put an end to the death penalty for juvenile offenders noting a trend in this direction within the legislation of states. It says that this is a strong indicator of "evolving standards of decency" that direct the interpretation of the eighth amendment.
Such developments are totally consistent with what is happening at the global level. With a few notable exceptions (Iran, Iraq, Saudi Arabia), the dwindling group of states that employ the death penalty is using it less and less.
There are likely to be more such abolitionist moves within the states of the United States. At some point, probably sooner rather than later, this will reach a tipping point that will then drive a challenge in the Supreme Court to the constitutionality of capital punishment. Something else is also essential: a few of the dinosaurs on the Supreme Court need to take early retirement, paving the way for President Obama to make progressive appointments. I'd bet that the death penalty will be through in the United States before this decade is over.

Harsh Sentencing Judgment from the European Court of Human Rights

A Chamber of the European Court of Human Rights today rejected an application by a number of prisoners being held in the United Kingdom who challenged their extradition to the United States. Several important issues are addressed in the decision, which concerns article 3 of the European Convention on Human Rights: the prohibition of torture and inhuman or degrading treatment or punishment. The decision, in Babar Ahmad et al. v. UK, is the latest in a series of decisions on the principle of non-refoulement, which prevents a party to the European Convention on Human Rights from sending an individual to another state where there is a real risk of torture or inhuman or degrading treatment or punishment being inflicted. In perhaps the Court’s most celebrated judgment, Soering v. UK, of 7 July 1989, the Court refused to extradite an individual to the United States because of concerns he would be subject to the “death row phenomenon”, defined as a protracted wait in dire prison conditions prior to execution.

            Today’s judgment seems to be a retreat from that great day. For the moment, I will comment on only one aspect of the ruling concerning mandatory sentences of life imprisonment without the possibility of parole. Some of the applicants had argued that if extradited to the United States and convicted, they would be subject to a mandatory term of life imprisonment without any possibility of parole. The Court did not think this was necessarily a breach of the European Convention:

242. For the third sentence, a mandatory sentence of life imprisonment without the possibility of parole, the Court considers that greater scrutiny is required. The vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court (see, for instance, Reyes and de Boucherville at paragraphs 151 and 152 above). This is no truer than for a mandatory sentence of life imprisonment without the possibility of parole, a sentence which, in effect, condemns a defendant to spend the rest of his days in prison, irrespective of his level of culpability and irrespective of whether the sentencing court considers the sentence to be justified.

However, in the Court’s view, these considerations do not mean that a mandatory sentence of life imprisonment without the possibility of parole is per se incompatible with the Convention, although the trend in Europe is clearly against such sentences (see, for example, the comparative study summarised at paragraph 138 above). Instead, these considerations mean that such a sentence is much more likely to be grossly disproportionate than any of the other types of life sentence, especially if it requires the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems (see, for instance, Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I at paragraphs 53 and 61 respectively and the Canadian case of Burns, at paragraph 93, quoted at paragraph 74 above).

The Court concludes therefore that, in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure (Kafkaris, cited above).

            The study to which the Court referred, by South African academic Dirk Van Zyl Smit, considered the sentencing practice within Europe. It summarized his study as follows:

138.  In his comparative study entitled “Outlawing Irreducible Life Sentences: Europe on the Brink?”, 23: 1 Federal Sentencing Reporter Vol 23, No 1 (October 2010), Professor Van Zyl Smit concluded that the majority of European countries do not have irreducible life sentences, and some, including Portugal, Norway and Spain, do not have life sentences at all. In Austria, Belgium, Czech Republic, Estonia, Germany, Lithuania, Luxembourg, Poland, Romania, Russia, Slovakia, Slovenia, Switzerland and Turkey, prisoners sentenced to life imprisonment have fixed periods after which release is considered. In France three such prisoners have no minimum period but it appears they can be considered for release after 30 years. In Switzerland there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous, although the provisions have not been used. The study concludes that only the Netherlands and England and Wales have irreducible life sentences. 

Today’s judgment sends a fearful signal to extremists in national legislatures throughout Europe, who may take it as a blessing for harsher sentencing policies.

            Of note is a reference by the Court to article 77 of the Rome Statute of the International Criminal Court (see para. 140), which allows a life sentence in exceptional cases, but with a requirement of review for parole after 25 years’ detention.