New Website on Human Rights In Ireland

Check out this new website – www.rightsmonitor.org – which has gone live today. It is an initiative by three Irish NGOs: Free Legal Advice Centres (FLAC), the Irish Council for Civil Liberties (ICCL), and the Irish Penal Reform Trust (IPRT). This summer, the site’s focus will be on Ireland’s performance under the United Nations International Covenant on Civil and Political Rights, which will come under formal examination by the UN Human Rights Committee in Geneva next Monday and Tuesday (14 and 15 July 2008).

Future of International Humanitarian Law

Harvard University's Programme on Humanitarian Policy and Conflict Research is holding a panel discussion on the 'Future of International Humanitarian Law', to be broadcase live on the web on 16 July 2008, at 1515 EST.

Panelists will include:
Antoine Bouvier, Legal Advisor, Delegate to Academic Circles, International Committee of the Red Cross
Claude Bruderlein, Director, Program on Humanitarian Policy and Conflict Research
Knut Dörmann, Head of the Legal Division of the International Committee of the Red Cross
Jennifer Leaning, Co-director, Harvard Humanitarian Initiative
Naz Modirzadeh, Senior Associate, Program on Humanitarian Policy and Conflict Research
Daphna Shraga, Principal Legal Officer, Office of the Legal Counsel, United Nations
According to the announcement, 'The panel will focus on the emerging challenges to, and continued relevance of, international law in the protection of civilians. Issues to be covered will include opportunities for the enforcement of humanitarian law, responsibilities of states and non-state actors, negotiation of humanitarian access, and the role of civil society in humanitarian protection.Panelists will take questions and comments from humanitarian professionals from around the world. Online viewers are warmly invited to submit questions before or during the event to the moderator, Dr. Vincenzo Bollettino, at vbollett@hsph.harvard.edu. '
For more information; http://ihlforum.ning.com.

ICC Spray Protects Against Prosecutions

Unfortunately, when the International Criminal Court was being created, its drafters didn't think too much about the acronym, which is widely used in other contexts. There is a product on the market known as 'ICC Spray', available by internet: http://www.cookingconcepts.com/PDF/Spray_ICC.pdf. Dov Jacobs says it is a'nice metaphor of international justice, turning it into a "soft, light cloud"'
See also, the International Cricket Council: http://icc-cricket.yahoo.com/ and the International Chamber of Commerce: http://www.iccwbo.org/
Thanks to Dov Jacobs.

Farewell to Louise Arbour as High Commissioner

Louise Arbour has now stepped down as High Commissioner for Human Rights. A nice story about her by Marlyse Simons appeared in today's New York Times: http://www.nytimes.com/2008/07/06/world/europe/06arbour.html?_r=1&ref=world_&oref=slogin

‘Flipside’ Prosecutions of Jewish Partisans in Lithuania

One of the ongoing challenges to international criminal law is the issue of ‘balance’ in prosecutions, sometimes called the 'flipside' cases. From Bosnia to Rwanda to Sierra Leone to Uganda, there are calls to prosecute the ‘other side’, and criticisms of prosecutions that appear to make political choices in targeting alleged offenders. The classic response is that international human rights (and humanitarian) law is concerned with the jus in bello, which applies regardless of whether the cause was or was not just. In my view, this issue remains unresolved, and it does not lend itself to simplistic solutions. The proposition that prosecution for international atrocity crimes must be neutral and indifferent strikes me as profoundly unsatisfactory.
As an example, consider the Nuremberg trial, which some critics label ‘victors’ justice’. We may well ask, however, about the historic legacy of post-World War II justice had it attempted to prosecute crimes committed on all sides, even-handedly. Should, for example, Jewish partisans who struggled valiantly with the limited means at their disposal to resist genocide have been punished for war crimes on the same basis as their Nazi tormentors? I had thought the question a hypothetical one, and indeed a rhetorical device demonstrating the perverse consequences of what some call even-handed justice. Apparently my example has an air of reality. Haaretz reports on investigations in Lithuania into a massacre allegedly perpetrated by Jewish partisans in 1944: http://www.haaretz.com/hasen/spages/1000086.html. More than 200,000 Jews were murdered in Lithuania under the Nazi regime, approximately 90% of what was one of Europe’s most dynamic and vibrant Jewish communities.According to Haaretz, the focus of the investigation is Yitzhak Arad, former chairman of of the Yad Vashem holocaust museum in Jerusalem. ‘Arad was appointed in 2005 by Lithuania's president to a high-level commission examining past war crimes. As a part of his work, Arad drew the ire of right-wing groups when he publicly asked that the country address the role of Lithuanians in the murder of Jews during the Holocaust. After a number of attacks on Arad in right-wing Lithuanian newspapers, Lithuania's chief prosecutor opened a pretrial investigation of Arad's wartime actions in Kaniukai. A Polish institute had earlier found that 38 people in the town were killed in 1944 by a Soviet anti-Nazi unit consisting of 120 to 150 people, including both Jews and non-Jews. In June 2007, Israel was formally asked to question Arad - a request that Israel declined. Since then, Lithuanian authorities also have questioned two women: Fania Branstovsky, a former partisan and now a librarian at the Vilnius Yiddish Institute, and Rachel Margolis, who wrote a memoir about her experiences in the resistance.’Arad was quoted in Forward as saying: ‘The murderers are now becoming national heroes, and we, the few surviving victims who took up arms and fought the murderers, are under investigation as criminals.’

Deserters from US Army May Get Refugee Status

In Key v. Canada, the Federal Court of Canada yesterday granted judicial review of a decision denying refugee status to a deserter from the United States armed forces: http://cas-ncr-nter03.cas-satj.gc.ca/rss/IMM-5923-06%20Decision.pdf. According to Justice Robert Barnes, ‘military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve’. The Court overturned a ruling of the Immigration and Refugee Board
According to Key, while in Iraq with a unit of combat engineers, he had participated in at least 70 raids on civilian homes. The Board found that such actions had ‘a disturbing level of brutality’ but that they were not war crimes involving deportation, slave labour or civilian hostage-taking, or crimes against humanity, with systematic use of torture and murder against civilians. ‘In my view, the Board erred in … concluding that refugee protection for military deserters and evaders is only available where the conduct objected to amounts to a war crime, a crime against peace or a crime against humanity’, wrote Justice Barnes.
See also: http://www.theglobeandmail.com/servlet/story/RTGAM.20080704.wclaim05/BNStory/National/home
The case returns to the Board, which still has to decide whether Key can get protection from persecution within the United States.
This is a fine way to mark the fourth of July which, as many readers of this blog will know, is celebrated in our home as the birthday of our grandson, Thomas William!

Dramatic Torture Ruling by European Court

The Grand Chamber of the European Court of Human Rights, in Gäfgen v. Germany, has dismissed an application by a criminal who was tortured by police in order to obtain information about the location of a child that he had kidnapped: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=71386&sessionId=4507150&skin=hudoc-en&attachment=true. It is about as close as we come to the ‘ticking bomb’ scenario. The Court ruled that although a violation had been committed, the applicant was no longer a ‘victim’. One blog calls it ‘one of the most difficult cases’ the Court has had to adjudicate: http://echrblog.blogspot.com/2008/07/evidence-obtained-through-violation-of.html.
This will be a great case to discuss at our regular doctoral seminars, when we start them up again in September.

Massive Amnesty in Pakistan, 7,000 Death Sentences Commuted

According to today's Times, Pakistan has reprieved 7,000 death-row inmates and commuted their sentences to life imprisonment. ' In one of the biggest amnesties of modern history, the Cabinet approved the reprieve to mark the 55th birthday of Benazir Bhutto, the former Prime Minister, who was assassinated late last year. Her Pakistan’s People’s Party (PPP), which swept the national elections this year, now leads a four-party coalition government. The move will come into effect after endorsement by President Musharraf. Human rights activists said that the reprieve, the largest mass commutation of death sentence anywhere, would benefit almost one third of the world’s death-row population, which is estimated to be around 24,000. Welcoming the amnesty, the Human Rights Commission of Pakistan demanded complete abolition of the death sentence. Pakistan is among 69 nations that retain the punishment. Radical mullahs called on Muslims to protest against the clemency, which is regarded as “un-Islamic”.'
Thanks to Mark Warren, who writes: 'Truly, almost anything is possible...'

Torture in India

See the report by the Asian Centre for Human Rights, Torture in India 2008: A State of Denial: www.achrweb.org. Michelle Farrell writes: 'The report is the first ever nationwide assessment of torture in India. The findings expose a culture of impunity where torture is a routine practice in police custody as well as by the armed forces and armed opposition groups. The report documents thousands of incidences of torture (7,468 custodial deaths between 2002 and 2007), many of which resulted in death.I ndia signed the United Nations Convention against Torture in 1997 but has not yet ratified. It is a State Party to the International Covenant on Civil and Political Rights but does not recognize the competency of the Committee to hear individual complaints. In addition, India has been refusing an invitation to the Special Rapporteur on Torture since 1993.The report recommends, among other things, that India should enact legislation to criminalize torture; compensate victims; and ratify the Convention against Torture and its Optional Protocol.
Thanks to Michelle Farrell.

Consternation in The Hague

Yesterday afternoon, Trial Chamber I of the International Criminal Court confirmed its earlier ruling in the Lubanga case (see this blog, 25/6/08), ordering the release of the accused subject to certain conditions (http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1418-ENG.pdf; http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1417-ENG.pdf). It has in effect now handed the matter over to the Appeals Chamber.
Lubanga is charged with the war crime of enlisting child soldiers in the Democratic Republic of the Congo. He has been in custody of the Court since March 2006 awaiting a trial which was initially scheduled to begin in March of this year, then postponed to June, and now stayed indefinitely. What was to be the first trial of the new Court has become its biggest crisis.
The core issue concerns hundreds of documents obtained by the Prosecutor, mainly for the United Nations but also from some NGOs, on a confidential basis. In principle, the Prosecutor is required to disclose to the defence any evidence in its possession that might be of assistance to the defence. However, it has invoked as an exception its right to obtain evidence on a confidential basis under limited circumstances. The Trial Chamber thinks the Prosecutor has abused this exception, in effect making very general commitments to information providers like the United Nations.
I have been in The Hague since Tuesday evening, and spent yesterday hanging out at the Court. I planned to attend the Charles Taylor trial and the Katanga confirmation hearing, both of which were underway, but after an hour or so in the courtrooms I went to the cafeteria where I began bumping into people, and really never left. Informal chats with people around the Office of the Prosecutor suggest a high level of confidence that a solution will be found and that the trial of Lubanga will continue. The Office of the Prosecutor appears to be working on some mechanism by which the judges will be able to assess the material themselves, confidentially, and decide whether it needs to be disclosed to the defence.
In my humble opinion, it is not at all obvious that this is the way forward here. The Prosecutor requires agreements from its information providers, including the United Nations, by which it can show the material to the judges. But can the judges participate in such a scheme? The information provider will simply extend the net of confidentiality to include the judges. If they conclude that some of the evidence must be disclosed to the defence, they will be at an impasse, and the trial will be aborted. The mechanism only works if they reach to opposite conclusion, namely that there is no information of an exculpatory nature in the package they are given by the Prosecutor. But can a trial then continue? Under very limited circumstances, it is allowed for judges to hold hearings ex parte, that is, without the defence being present. This works, for example, with issues involving the identity of witnesses, and similar matters. But can it ever be acceptable for judges to see large volumes of evidentiary material in the absence of an accused, material that may be inculpatory? We would hardly be surprised to learn of such procedures in Guantanamo, but in The Hague?
The Office of the Prosecutor is supremely confident that it has done nothing wrong. However, at least three judges think otherwise. We will await the Appeals Chamber decision impatiently on this point. Even if a solution is found, the approach of the Office of the Prosecutor in gathering evidence has created a terrible crisis in the Court. In such circumstances, someone has to fall on their sword. In a decision of a few weeks ago on disclosure-related matters in another case (http://www.icc-cpi.int/library/cases/ICC-01-04-01-07-621-ENG.pdf, para. 49), Judge Sylvia Steiner wrote:

After more than a hundred years of struggle, a permanent international criminal court has finally emerged as a unique symbol of the fight against impunity for the most heinous crimes of international concern. It represents the last hope for justice for the millions of children, women and men who have suffered, and are currently suffering, unimaginable atrocities that shock the conscience of humanity. With all due respect for the Prosecution, the Single Judge strongly believes that the International Criminal Court cannot allow such problems to reoccur, and that therefore, the Bureau of the Assembly of States Parties, as well as the Assembly of States Parties, will have to draw their own conclusions.

Strong words.
On another note, my informal chats in the cafeteria of the Court reveal a growing frustration with the participation of victims in the proceedings. There is a sense that this is something that has spiralled completely out of control. One of the distinctive features of the Court, in contrast with the earlier Tribunals for the former Yugoslavia, Rwanda and Sierra Leone, not to mention Nuremberg, is the participation of victims. Proceedings at the Court are now literally dominated by victim issues. It has become a small cottage industry for lawyers. I learned a new expression in The Hague yesterday, when judges referred to ‘non-anonymous witnesses’, a wonderful example of a double negative.