Genocide and sexual orientation

Brazil is in the course of enacting legislation to incorporate international crimes within its criminal law. Draft legislation on genocide has been proposed:

Genocídio

Art. X2 – Praticar as condutas descritas nos incisos abaixo com o propósito de destruir, total ou parcialmente, um grupo, em razão de sua nacionalidade, idade, idioma, origem étnica, racial, nativa ou social, deficiência, identidade de gênero ou orientação sexual, opinião política ou religiosa.

I – matar alguém;

II – ofender a integridade física ou mental de alguém (redação adequada ao Tratado de Roma);

III – realizar qualquer ato com o fim de impedir ou dificultar um ou mais nascimentos, no seio de determinado grupo;

IV – submeter alguém a condição de vida desumana ou precária;

V – transferir, compulsoriamente, criança ou adolescente do grupo ao qual pertence para outro.

Pena: Prisão de 20 (vinte) a 30 (trinta) anos, sem prejuízo das penas correspondentes aos tipos penais comuns.

Parágrafo Único. Na mesma pena incide quem incita publicamente a prática do genocídio.

X2-A - Associarem-se mais de três pessoas para a prática dos crimes mencionados neste artigo.

Pena: Prisão de 10 (dez) a 15 (quinze) anos, sem prejuízo das penas correspondentes aos tipos penais comuns.

Prisoners at Sachsenhausen wearing the pink triangle.

Even those not familiar with Portuguese will have no trouble seeing the resemblance to the definition in article 2 of the Genocicde Convention. What is unique about the Brazilian draft is the proposal to include ‘orientação sexual,’. Although most national legislators adopt the definition in the Genocide Convention without any change, something that confirms its virtual universality, innovation is not at all unknown and there have been many efforts to modify the definition over the years. For a full list, see the recent book by David Nersessian, Genocide and Political Groups.

The Brazilian proposal is, to my knowledge, the first to include sexual orientation. In 1985, in his celebrated report on genocide to the United Nations Sub-Commission the Prevention of Discrimination and the Protection of Minorities, Benjamin Whitaker mooted the idea of amending the definition to include homosexuality.

Thanks to Thomaz Santos.

Genocide and the United States Election

Genocide rears its head as a campaign issue in the United States elections once again. In September 2004, George Bush and Colin Powell launched the charge that the Sudanese government was committing genocide. It was a demagogic appeal aimed at obtaining votes from American fundamentalists. Some months later, a United Nations Commission of Inquiry ruled that the word genocide was not an appropriate description of the atrocities that had taken place in Sudan.

This time around, it is Mitt Romney trying the same trick. Yesterday, in New Hampshire, he made a statement concerning Iranian President Ahmadinejad.

‘What Ahmadinejad said this past week about Israel ... the awful, offensive, obnoxious things he said should lead to him being indicted under the Genocide Convention [and] his people being treated like the pariah they are’, Romney said. Romney was referring to one of Ahmadinejad’s periodic outbursts, in which the Iranian president apparently said that the State of Israel was a ‘cancerous tumour’ that should be ‘destroyed’.

Nobody is claiming that Ahmadinejad or Iran have actually committed genocide. There is a Jewish minority in Iran, represented in Parliament, that is probably better off than Jewish communities in many countries of the Middle East.

Romney was building on a campaign that has been going on for several years now aimed at charging Iran, and its President, with ‘direct and public incitement to commit genocide’. This is a distinct crime from genocide as such, and exists even if genocide itself is not committed. It is committed by words alone.

When the United States incorporated the crime of genocide into federal legislation, in 1988, it provided that direct and public incitement to genocide was subject to a fine of not more than $500,000 or imprisonment for a maximum of five years. On the Richter scale of crime in the United States, it is hardly a tremor.

Inevitably, the crime of direct and public incitement involves interpreting words that are susceptible of more than one meaning. The Rwanda Tribunal has convicted people for incitement, but the challenge of interpreting the meaning of specific comments prior to and during the Rwandan genocide is simplified enormously by the fact that genocide actually took place. Similarly, we understand that Nazi talk about a ‘final solution’ meant genocide, but that is because of the deeds that followed the words.

In the case of Ahmadinejad, what are the deeds that help us construe the words? His attackers point to Iran’s alleged efforts to obtain nuclear weapons. Indeed, in yesterday’s speech Romney made the link. It is argued that Iran wants to get nuclear weapons in order to destroy Israel and thereby fulfill its genocidal ambitions.

The purported genocidal association between Ahmadinejad’s words and Iran’s nuclear plans is pretty thin. Isn’t it far more plausible that Iran wants nuclear weapons as protection, and deterrence, given that its major strategic and military threats in the region actually have nuclear weapons?

Of course Romney’s charges are also part of his well-known declarations of support for Israel’s threatened military attack on Iran. In that context, the genocide charges look like nothing more than sabre rattling for aggression by Israel. On his recent trip to Israel, Romney endorsed an Israeli military attack on Iran. He also made his bizarre statement about how Jewish culture accounts for Israel’s prosperity, something that many took as an insult to Palestinians and Arabs. I thought the suggestion that Jews are good with money also sounded like old-time anti-Semitism, but his Zionist cheerleaders seem prepared to overlook the point.

What to make of Ahmadinejad’s remarks? The most plausible interpretation is that he posits the destruction of the State of Israel. But that is not at all the same thing as the extermination of the State’s inhabitants. Anyway, the speculative hypothesis of an Iranian nuclear attack aimed at destroying Israel would also kill millions of Palestinians and other Arabs. This hardly makes sense, even for a reckless tyrant like Ahmadinejad.

In Ireland there are many who would like to ‘destroy’ the state of Northern Ireland. They don’t mean exterminating its inhabitants. During the Cold War, there were those who called for the destruction of the Soviet Union, and of Yugoslavia. They were successful, by the way. But obviously that did not mean extermination of the populations of those states. Are those who call for a ‘one-state solution’ - that is, a secular democratic state that may at some point in the near future have a Palestinian majority – endorsing the destruction of Israel? Certainly it would be the end of Israel as we know it.

Ahmadinejad’s comments may lend themselves to varying interpretations, but when read in context they cannot be viewed as incitement to genocide. Confronting the threat of genocide is one of the existential problems of our time. But beware of those who brandish the word cavalierly, especially if they are trying to build support for an illegal military attack on a foreign country, or to stifle political discussion about the future of Israel, or campaigning for the United States Presidency on behalf of the Republican Party.

Hugo Adam Bedau

One of the world’s great scholars on capital punishment, Hugo Adam Bedau, passed away early this morning. Hugo was Austin B. Fletcher Professor of Philosophy at Tufts University for most of his career. He combined first class academic work with great devotion to the campaign to abolish the death penalty, particularly in the United States. His major work, The Death Penalty in America, now in its fourth edition, first appeared in 1964 and had enormous influence on the debate.
He did much to advance the cause of abolition within the United States, although there were many ups and downs in the struggle during his great and distinguished career. In the 1960s, he saw capital punishment come to a halt in the United States. By the early 1970s, the Furman ruling of the Supreme Court created hopes that it was permanently at an end. Then, the death penalty revived, reaching a peak in the late 1990s. Since then, it has continued to decline in the United States, and judicial abolition may not now be too far away. During his last decade, Hugo witnessed important judgments of the Supreme Court that restricted the use of capital punishment.
Hugo celebrated his 75^th birthday at my home in the west of Ireland when he attended an international conference on capital punishment hosted by the Irish Centre for Human Rights and the Université de Paris II in September 2001. We celebrated with champagne and cake and many friends, including Mike Radelet, Roger and Nancy Hood, Sandra Babcock, Nigel Rodley, Christina Cerna, Emmanuel Decaux, Peter Hodgkinson and many others. I last saw Hugo in Boston in late June of this year, when he attended a public symposium organized by two of the United Nations special rapporteurs. Nigel Rodley and I had a wonderful chat with him, reminiscing about human rights activities we had attended together over the years. He was doing poorly, and had not been well for some time. His effort to attend the meeting was remarkable, and this last meeting with him was charming and memorable.
Our sympathies go out to his wife, Constance Putnam, and to the rest of his family.

Death Penalty Report from the Inter-American Commission on Human Rights: The Elephant in the Room

The Inter-American Commission on Human Rights recently released a nearly 200-page report on capital punishment, with a focus on its own case law and that of the Inter-American Court of Human Rights. It is entitled The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition.

This is a very thorough review of the applicable law that demonstrates the important role the Inter-American institutions have played in its development.

If a criticism of this otherwise excellent report may be permitted, there is an obvious truth about capital punishment in the western hemisphere that does not emerge: the death penalty has virtually disappeared, with one, single exception.

Over the past decade, several hundred executions have taken place within the United States, while a handful have been conducted elsewhere in the hemisphere. There was one execution in St Kitts and Nevis in 2008, and three in Cuba in 2003. Aside from the United States, that’s it.

Several states in the Caribbean continue to sentence people to death. But executions are not carried out. Much of the responsibility for this is due to the energetic work of lawyers in the region, and in England, who have launched effective judicial attacks. Cuba now appears to have abandoned the death penalty.

The most important observation that can be made about the death penalty in the Inter-American human rights system is that it has disappeared, for all intents and purposes, with this one terrible exception. The Inter-American human rights system deserves much of the credit for this development. In order to progress the idea of abolition in the United States, it is essential that we continue to remind Americans of how isolated they really are. It is also important to point out that the disappearance of capital punishment on a regional level is not just a European phenomenon (with one exception - Belarus). The death penalty has also virtually disappeared in the western hemisphere (with one exception - the United States) and in Africa (with a few exceptions).

El sueño del celta

The latest book by the Peruvian writer Mario Vargas Llosa, El sueño del celta (The Dream of the Celt), describes some of the earliest human rights investigations of modern times. It is a somewhat fictionalised account of the life of Sir Roger Casement, an Irishman who worked for the British diplomatic service. The book is built around three main themes, two of which are human rights fact-finding investigations conducted by Casement around the beginning of the twentieth century.

Casement was assigned by London to inquire into human rights abuses in the Congo Free State, then the person fiefdom of King Leopold II of Belgium. Casement was not the first to expose the terrible abuses but his authoritative report had extraordinary influence. No doubt influenced by Casement’s findings, Mark Twain published his own satirical book, King Leopold’s Soliloquy.  Following publication of the report, Casement developed an international reputation as a human rights investigator.

Much of this account by Vargas Llosa, who was awarded the Nobel Prize for Literature in 2010, is an account of the human rights abuses in the Congo. Vargas Llosa makes a sharp contrast between Casement’s approach with that of Joseph Conrad, who expressed the view, in Heart of Darkness, that backward Africa had brought out the primitive instincts of Europeans.

Casement’s second major investigation concerned the activities of the London-based Peruvian Amazon Company in the Putumayo region of Peru. Casement exposed the brutal practices which were related to harvesting rubber, and of which the victims were indigenous peoples. Again, Vargas Llosa describes the abuses in great detail. One feature that will be of particular interest to modern-day human rights scholars is the focus on corporate social liability for human rights abuses. The horrific activities of the Peruvian Amazon Company were quietly tolerated by the Peruvian government. But Casement’s conclusions were directed at London, where the company had its headquarters and took its profits.

The third theme of the book is Casement’s conversion to Irish nationalism. Vargas Llosa presents this as the logical progression of the views that emerged from his work in the Congo and Amazonia, and which made Casement ‘one of the great anti-colonial fighters and defenders of human rights and indigenous cultures of his time’. The author explains how Casement began his career driven by a mission to bring modern civilization to Africa and elsewhere, but through his human rights investigations came to understand that the abuses he encountered were not unfortunate distortions of the colonial project but rather their inevitable consequences, built as they were upon ideas of racial and cultural superiority. From there, it was a small step for Casement to become, in his final years, a campaigner for Irish independence.

When the First World War broke out, Casement went to Berlin to enlist German support in the struggle for Irish independence. He was captured by the British upon his return to Ireland, in 1916, and executed in London’s Pentonville Prison on 3 August of that year. In keeping with British prison practice, his remains were buried within the prison walls. In the 1960s, Prime Minister Wilson allowed them to be moved to Ireland, although on the condition they not be taken to Northern Ireland. They were buried in Dublin’s Glasnevin cemetery following a State funeral addressed by the President.

Vargas Llosa also deals with Casement’s homosexuality. After his arrest in 1916, the British worked to undermine any sympathy that Casement might attract by disseminating copies of Casement’s so-called ‘black diaries’, which recounted Casement’s propensity for casual sexual encounters with young men, some of them in their teens. Vargas Llosa presents this material with considerable sympathy. He accepts the validity of the controversial diaries, which many have claimed were forged, but takes the view that much of them reflect Casement’s fantasies rather than actual activity.

Authored by one of the great writers of our time, The Dream of the Celt, which appeared in English translation a few months ago, belongs on the bookshelf of human rights investigators, campaigners and scholars.

South African Constitutional Court Denies Extradition without Diplomatic Assurances

South Africa’s Constitutional Court issued a ruling on 27 July (Tsembe et al.) denying the Government’s attempt to extradite two individuals to Botswana where they might face the death penalty. Originally, South Africa had sought an assurance that the death penalty not be imposed, but Botswana refused to issue one. South Africa then took the view that it would extradite anyway. Lawyers for the two men (one of them has since died) took the case to the Constitutional Court, where they have prevailed.

The Government sought to make a number of petty distinctions with existing South African law on the subject, but the Court did not see anything in these arguments.

The judgment confirms that the standard to be applied in such refoulement cases is whether there is a real risk of capital punishment. There is some divergence in international human rights law on this point, to the extent that the expulsion, deportation or extradition involves the death penalty rather than torture. There is widespread support for the view that in torture cases, even diplomatic assurances are not sufficient. With respect to the death penalty, however, diplomatic assurances are sought (and generally obtained). Moreover, I know of no case where a State that provided such diplomatic assurances to to impose the death penalty has ever reneged on its commitment.

In answer to the charge that there was perhaps not a real risk of execution, the South African Court noted that Botswana has mandatory death penalty provisions, and that it had moreover refused to provide an assurance that the death penalty not be imposed.

Botswana is one of a handful of African states that still use capital punishment. It may be the only state in southern Africa to have used capital punishment in recent years.

This is another proud moment for the rule of law in South Africa, and another important contribution to international human rights law by its distinguished Constitutional Court.

Thanks to Max Du Plessis, who argued the case on behalf of the accused men for Lawyers for Human Rights, and who, along with his colleagues, deserves our congratulations.

Harry Rhea PhD

Prof. Michael Scharf is on the video screen, and Harry is on the right. Prof. Ray Murphy and myself are on the other side of the screen.

Harry Rhea successfully defended his doctoral thesis at the Irish Centre for Human Rights today. The topic of the thesis is 'The United States and International Criminal Tribunals'. Prof. Michael Scharf of Case Western Reserve University School of Law in Cleveland was the external examiner, participating by videolink. Prof. Ray Murphy of the National University of Ireland Galway was the internal examiner. Congratulations, Harry!

Antigone, jus cogens and the International Court of Justice

Seeing yesterday’s great performance of Antigone at the National Theatre brought my mind back to Friday’s judgment of the International Court of Justice in the Belgium v. Senegal case. Charged with defying the law of the State by insisting on burying he brother Polynices despite the order to the contrary by King Creon, Antigone answers:

That order did not come from God. Justice,
That dwells with the gods below, knows no such law.
I did not think your edicts strong enough
To overrule the unwritten unalterable laws
Of God and heaven, you being only a man.
They are not of yesterday or today, but everlasting,
Though where they came from, none of us can tell.
Guilty of their transgression before God,
I cannot be, for any man on earth.

The passage has often been cited as an early understanding of natural law, apparently going back as far as Aristotle’s Rhetoric.

Friday’s judgment of the International Court of Justice says:

99. In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).
That prohibition is grounded in a widespread international practice and on the opinio juris of States. It appears in numerous international instruments of universal application (in particular the Universal Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the protection of war victims; the International Covenant on Civil and Political Rights of 1966; General Assembly resolution 3452/30 of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and it has been introduced into the domestic law of almost all States; finally, acts of torture are regularly denounced within national and international fora.

This is not the first reference to jus cogens in the case law of the Court. The first, I believe, was in the Democratic Republic of the Congo v. Rwanda decision (para. 64), with respect to the prohibition of genocide. Ad hoc Judge John Dugard wrote a separate opinion about how the concept might be developed. A reference to the pronouncement on jus cogens in the DRC decision was made in the Genocide case (Bosnia and Herzegovina v. Serbia) (para. 161) but without further comment. In this year’s ruling on State immunity, in Germany v. Italy, there is a discussion of jus cogens that dismisses its significance in the debate in that case (see paras. 95-96).

The reference to jus cogens in Friday’s judgment is of interest because it provokes comments by several of the judges in their individual opinions.

Judge Abraham describes the comment on jus cogens in para. 99 as an obiter dictum, in other words, as a statement that is not decisive in reaching the Court’s conclusion. He says that the reference might well have been omitted.

27. … A propos de l’interdiction de la torture, l’arrêt affirme (paragraphe 99) qu’elle relève du droit coutumier et qu’elle a même acquis le caractère d’une norme de jus cogens, mais c’est à l’évidence un simple obiter dictum, dont la Cour aurait pu se passer sans priver son raisonnement d’aucun élément indispensable.

There is a similar remark by ad hoc judge Sur.

Judge Xue also discusses the issue:

17. Secondly, the Court’s conclusion on obligations erga omnes partes in this case is not in conformity with the rules of State responsibility. Even though prohibition of torture has become part of jus cogens in international law, such obligations as to make immediately a preliminary inquiry and the obligation to prosecute or extradite are treaty rules, subject to the terms of the Convention. Notwithstanding the fact that the State parties have a common interest in their observance, by virtue of treaty law, the mere fact that a State is a party to the Convention does not, in and by itself, give that State standing to bring a case in the Court. Under international law, it is one thing that each State party has an interest in the compliance with these obligations, and it is another that every State party has standing to bring a claim against another State for the breach of such obligations in the Court. A State party must show what obligations that another State party owes to it under the Convention have been breached. Such “injury”, to use the language in Article 42 of the International Law Commission’s Articles on State Responsibility, distinguishes the State from other State parties as it is “specially affected” by the breach. These procedural rules in no way diminish the importance of prohibition of torture as jus cogens. Jus cogens, likewise, by its very nature, does not automatically trump the applicability of these procedural rules (Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, paras. 93-95).

The most elaborate comments are by Judge Cançado, who describes the reference in paragraph 99 as ‘one of the most significant passages of the present Judgment’. Judge Cançado had also considered the subject in his separate opinion in the Immunities decision of 3 February. Some of the relevant passages are cited here (references omitted), but they do not do justice to the separate opinion, to which readers of the blog are referred.

44. In my understanding, the State obligations, - under Conventions for the protection of the human person, - of prevention, investigation and sanction of grave violations of human rights and of International Humanitarian Law, are not simple obligations of conduct, but rather obligations of result. It cannot be otherwise, when we are in face of peremptory norms of international law, safeguarding the fundamental rights of the human person. Obligations of simple conduct may prove insufficient; they may exhaust themselves, for example, in unsatisfactory legislative measures. In the domain of jus cogens, such as the absolute prohibition of torture, the State obligations are of due diligence and of result. The examination of the proposed distinction between obligations of conduct and obligations of result has tended to take place at a purely theoretical level, assuming variations in the conduct of the State, and even a succession of acts on the part of this latter, and without taking sufficient and due account of a situation which causes irreparable harm to the fundamental rights of the human person.

…

158. Paragraph 99 of the present Judgment, wherein the ICJ expressly acknowledges that “the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)”, is in my view one of the most significant passages of the present Judgment. My satisfaction would have been greater if the Court dwelt further upon it, and developed its reasoning on this particular issue, as it could and should, thus fostering the progressive development of international law. The Court, however, promptly turned around in the following paragraph, and started treading on troubled waters, embarking - to my regret - on a regressive interpretation of the relevant provision (Article 7(1)) of the CAT Convention.
159. In any case, up to now, the Court has not shown much familiarity with, nor strong disposition to, elaborate on jus cogens; it has taken more than six decades for it to acknowledge its existence tout court, in spite of its being one of the central features of contemporary international law. In effect, immediately after identifying the manifestation of jus cogens in the customary international law prohibition of torture (para. 99), the Court has indulged into a consideration, sponte sua, of non-retroactivity of treaty provisions. The Court has done so (paras. 100 to 104) adding an unnecessary - if not contradictory - element of confusion to its own reasoning.

168. Accordingly, it would seem inconsistent with the object and purpose of the CAT Convention if alleged perpetrators of torture could escape its application when found in a State in respect of which the Convention entered into force only after the alleged criminal acts occurred (as a result of the temporal limitation which the Court regrettably beheld in Article 7(1)). Worse still, although the present Judgment rightly recognizes that the prohibition of torture has attained the status of jus cogens norm (para.99), it promptly afterwards fails to draw the necessary consequences of its own finding, in unduly limiting the temporal scope of application of the CAT Convention. The Court has insisted on overlooking or ignoring the persistence of a continuing situation in breach of jus cogens.

…

182. Identified with general principles of law enshrining common and superior values shared by the international community as a whole, jus cogens ascribes an ethical content to the new jus gentium, the International Law for humankind. In prohibiting torture in any circumstances whatsoever, jus cogens exists indeed to the benefit of human beings, and ultimately of humankind. Torture is absolutely prohibited in all its forms, whichever misleading and deleterious neologisms are invented and resorted to, to attempt to circumvent this prohibition.
183.In the aforementioned move from jus dispositivum to jus cogens, this absolute prohibition knows no limits in time or space: it contains no temporal limitations (being a prohibition also of customary international law), and it ensues from a peremptory norm of a universalist international law. Jus cogens flourished and asserted itself, and has had its material content expanded, due to the awakening of the universal juridical conscience, and the firm support it has received from a lucid trend of international legal thinking. This latter has promptly discarded the limitations and shortsightedness (in space and time) of legal positivism, and has further dismissed the myopia and fallacy of so-called “realism”.

Paragraph 99 of Friday’s ruling clearly associates jus cogens with customary international law. Several international instruments are cited, including the Universal Declaration of Human Rights. Importantly, it appears to explain the source of the jus cogens norm: ‘That prohibition is grounded in a widespread international practice and on the opinio juris of States.’ Of course, the same sources are invoked as a basis for customary norms. It seems to make jus cogens into a kind of super-custom.
Usually, there is little real point to elevating a norm into the category of jus cogens. It is a bit like putting what is already a clear statement in bold face and italics. As a general principle, customary norms are on the same level as treaty or conventional norms, and just as binding. The Vienna Convention on the Law of Treaties gives jus cogens norms the ability to override incompatible treaty norms, which is why they have a superior status. The debate rages, as we can see in the two decisions this year where jus cogens has been an issue, about the legal consequences of determining that a norm belongs in the category.
My reflections are not focused on the legal significance of jus cogens but rather about the origin of such norms. The Court’s decision suggests they are the same as those of customary international law. If that is the case, how can we ever identify them? What makes them distinct from custom generally? If the prohibition of torture is a norm of jus cogens because it is affirmed in various international treaties and declarations, why don’t we say the same thing about imprisonment for debt, or the prohibition (or lack of it) of pornography?
Judge Cançado’s separate opinion seems to find jus cogens elsewhere. In para. 182, he speaks of ‘general principles of law enshrining common and superior values shared by the international community as a whole’. The terminology is not quite identical to that of article 38(1)c of the Statute of the International Court of Justice (‘the general principles of law recognized by civilized nations’) but it is close enough and we can understand why Judge Cançado is probably uncomfortable with that archaic formulation.
He goes on to discuss how ‘jus cogens ascribes an ethical content to the new jus gentium, the International Law for humankind. In prohibiting torture in any circumstances whatsoever, jus cogens exists indeed to the benefit of human beings, and ultimately of humankind.’ Its development results from 'the awakening of the universal juridical conscience'.
And that brings us back to Antigone.
Critics will object that using ethics and similar notions to identify norms of international law is fraught with uncertainly. Perhaps. But no more so than with a concept of jus cogens that is apparently rooted in the practice and in the opinio juris of States, where the more we explore the sources the darker and gloomier the terrain becomes. Looking for ethical content in State behaviour is a terrifying prospect. Far better to search for jus cogens in the 'unwritten unalterable laws / Of God and heaven', just like Antigone. 'They are not of yesterday or today, but everlasting, / Though where they came from, none of us can tell.'

Non-international armed conflict in Syria

The International Committee of the Red Cross is now describing Syria as a non-international armed conflict. For a short course on the legal issues, listen to this brief interview with Prof. Andrew Clapham of the Geneva Academy of International Humanitarian Law and Human Rights. Click here.

Senegal ordered to try Hissène Habré by International Court of Justice

The International Court of Justice ruled this afternoon, by a crushing majority, in favour of Belgium in its application against Senegal concerning the Hissène Habré case. The vote was 14 to 2 for a violation of the Torture Convention, with the two negative votes being case by the Judge Xue of China and ad hoc Judge Sur of Senegal. The vote was unanimous that 'the Republic of Senegal must, without further delay, submit the case of Mr. Hissène Habré to its competent authorities for the purpose of prosecution, if it does not extradite him'.

Habré stands accused of torture (as well as other crimes) in Chad. Years ago he sought refuge in Senegal. Belgium insisted that Senegal live up to its obligations under the Conventions Against Torture.

Senegal is reported to be planning to begin the trial of Habré before the end of the year. It has a new government that is expected to be more respectful of its international obligations than the previous regime.

As is generally the case, today's judgment is accompanied by a raft of separate opinions as well as statements by the two dissenters. We are treated to yet another lengthy consideration of the broader issues by Judge Cançado Trindade.