OECD Guidelines on Corporate Responsibility Cited in Decision

Student's at last year's doctoral seminar may remember a discussion about the use of OECD Guidelines on corporate responsibility, and their justiciability. The United Kingdom OECD National Contact Point has delivered a decision in the case of Global Witness v. Afrimex finding Afrimex in violation of the human rights provisions of the Guidelines: http://www.globalwitness.org/media_library_detail.php/661/en/. AFrimex is a United Kingdom-based corporation involved in the mineral industry. The decision found that Afrimex initiated demand for minerals from a conflict zone and used suppliers who had made payments to Rassemblement congolais pour la démocratie-Goma, a rebel group operating in the eastern Democratic Republic of Congo. It concluded that Afrimex had failed to contribute to sustainable development in the region and to respect human rights. The National Contact Point also stated that Afrimex applied insufficient due diligence to the supply chain, sourcing minerals from mines that used child and forced labour.
Thanks to Jernej Černič.

More on ‘Victor's Justice’: The European Court Ruling in Kozonov

In late July of this year, a chamber of the European Court of Human Rights granted the application of Vassili Kozonov, a Latvian partisan during the Second World War, decorated with the Order of Lenin, who was convicted of war crimes by Latvian courts in the 1990s: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=72153&sessionId=13585696&skin=hudoc-en&attachment=true. The Court held that the prosecution was based on retroactive operation of the law, contrary to article 7 of the European Convention of Human Rights. Kosonov had participated in a massacre in a Latvian village, but he argued that the victims were combatants, not civilians, and that this was not contrary to international law at the time. The decision was by a very close vote, four judges to three, and it will almost certainly be reviewed by a Grand Chmaber of the Court, composed of 17 judges.
The dissenters sensed that underpinning the reasoning of the majority was a reluctance to condemn a partisan for fighting the Nazis. ‘Why should criminal responsibility depend on which side those guilty of war crimes were fighting on?’ asks the minority.
This is a fascinating new chapter in the evolving ‘victor's justice’ debate. Earlier this year, the Appeals Chamber of the Special Court for Sierra Leone ruled that the side on which a person is fighting should not even be taken into account for purposes of sentencing, as an aggravating or a mitigating factor: http://www.sc-sl.org/Documents/CDF/SCSL-04-14-A-829.pdf.
I recently reported an item on this blog about prosecution of Jewish partisans in Lithuania for war crimes committed in the final stages of the Second World War. And I could add to this the ongoing debate at the International Criminal Tribunal for Rwanda about prosecuting members of the Rwandese Patriotic Front for atrocities committed against Hutu in Rwanda in the months following the genocide.
Personally, I am inclined to think that the side one is fighting on has to be relevant to certain issues of international criminal justice. The view of the Appeals Chamber of the Special Court for Sierra Leone is troubling, and seems inconsistent with the approach we would take in domestic legal systems, where the motive of the offender is always very relevant to determination of the penalty. It is also fundamental in terms of prosecutorial discretion, something now confronting the Rwanda Tribunal.
The biggest critic of Nuremberg as ‘victor’s justice’ is the notorious David Irving (see his scurrilous book on the Nuremberg trial, which you can download free from his website: http://www.fpp.co.uk/books/Nuremberg/index.html - please don’t buy it). Many think it would have been better if both sides were prosecuted at Nuremberg, but I cannot agree. It is true that the Allies committed war crimes, and that there was terribly civilian damage as a result of bombing of cities, like Dresden and Hamburg. Nuremberg is one of the great symbolic trials of our time, and if it had reflected a view by which both sides had been guilty of atrocities this would not clarify history, it would distort it. Yet isn’t that the logic of the dissenters in the Kononov judgment?

Another Setback for the Office of the Prosecutor in Lubanga Case

Readers of the blog will know of the decisions by a Trial Chamber of the International Criminal Court in June of this year ordering a stay of proceedings and the release of the accused in the first case to come to trial, Prosecutor v. Lubanga. The issue concerns disclosure to the defence of materials that the Prosecutor obtained on a confidential basis from the United Nations and some NGOs. These decisions are on appeal. But since then, the Prosecutor has been making efforts to repair the damage. He has obtained a number of concessions from the United Nations, including the right to disclose some documents entirely and others in redacted form.
Yesterday, the Trial Chamber ruled that this is still inadequate: http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1467-ENG.pdf.
I was last in The Hague in early July, and was rather surprised at what I would call the great confidence in the Office of the Prosecutor that the situation was under control and would be resolved. At the Salzburg Summer School in mid-August, the Prosecutor told participants that everything was being repaired. But Professor Kai Ambos gave a talk a few days later reviewing what had been done, and it didn't look so clear. And now the Trial Chamber has said, once again, that the efforts of the Prosecutor are not good enough.

Customary Law Study Available on line in pdf (in French)

Volume I of the study on customary law by the International Committee of the Red Cross is now available in the French language version on line at: http://www.icrc.org/web/fre/sitefre0.nsf/html/pcustom?opendocument. The English version, published by Cambridge University Press, only exists in hard copy to my knowledge.
Thanks to Jean-Marie Henckaerts.

Human Rights Council, Year II

Rachel Brett of the Quaker United Nations Office in Geneva haunts the halls of the Palais des Nations, and is an astute observer of everything to do with human rights that goes on in that building. She has just issued a report on the second year of the Human Rights Council: http://www.mediafire.com/?sharekey=5ee4f5773adc93cbab1eab3e9fa335ca71d7625596b028a3

The Power to Punish for Contempt

Two comments responded to my post of yesterday on the prosecution of Florence Hartmann for contempt.
I think it is not correct to say that all criminal tribunals have an inherent power to prosecute contempt. It is probably accurate to say that all criminal tribunals can prosecute contempt when it occurs in the courtroom itself (in facie). But I do not think it is the case that all criminal tribunals have an inherent power to prosecute contempt when it takes place outside of the courtroom (ex facie). In many criminal justice systems this power would be reserved to a court of general jurisdiction, and would not be available to a statutory court. In other words, it is not at all obvious that the Statute of the International Criminal Tribunal gives the judges the power to prosecute contempt when it takes place outside the courtroom.
Now, the judges have given themselves this power by the Rules of Procedure and Evidence, of which they themselves are the authors. But they cannot enact Rules that exceed the powers they have been granted by the Security Council in the Statute.
Assuming they are wrong, who can stop them (other than the Security Council)? How about this scenario. Ms Hartmann refuses to appear, and is then subsequently arrested by national courts somewhere. If she were to challenge her arrest and transfer to The Hague before the national courts, through a habeas corpus application or some similar mechanism, she could raise an interesting argument about the legal validity of the Rules of Procedure and Evidence to the extent that they may exceed the jurisdictional remit in the Statute. In effect, judges of a national court would be asked to sit in judicial review of the powers of the judges of the International Criminal Tribunal for the former Yugoslavia to enact Rules that are ultra vires. Why not?
The idea that international judges have inherent powers to prosecute certain crimes (contempt, perjury) has always bothered me. How far does this go? Can they also prosecute someone for hacking into the website of the Tribunal, or failing to return a book to the library, or stealing the bicycle of one of the judges? I think the answer is that Dutch law would look after that. So why can't Dutch law also deal with contempt and perjury?

Appeals Chamber Orders a Retrial

In Prosecutor v. Muvunyi, the Appeals Chamber of the International Criminal Tribunal for Rwanda has ordered a retrial: http://www.mediafire.com/?sharekey=5ee4f5773adc93cbab1eab3e9fa335ca869775f79bb5ce6a (note that the judgment is not yet available on the website of the tribunal). It is, to my knowledge, the first time a retrial has ever been ordered in the practice of the ad hoc tribunals. The Appeals Chamber reversed the conviction of Muvunyi on several counts. With respect to a count of inciting genocide, however, the Appeals Chamber said that the Trial Chamber had not given adequate reasons, making it impossible for the Appeals Chamber to assess the validity of its reasoning. According to the Appeals Chamber: ‘The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. In the present situation, the Appeals Chamber is well aware that Muvunyi has already spent over eight years in the Tribunal’s custody. At the same time, the alleged offence is of the utmost gravity and interests of justice would not be well served if retrial were not ordered to allow the trier of fact the opportunity to fully assess the entirety of the relevant evidence and provide a reasoned opinion.’ (para. 148) Rule 118(C) of the Rules of Procedure and Evidence states: ‘In appropriate circumstances the Appeals Chamber may order that the accused be retried before the Trial Chamber.’
Muvunyi was initially sentence to twenty-five years' imprisonment. But the retrial is only ordered for one of several counts, and he is acquitted of everything else. By the time retrial and appeal are finished, he will probably have spent more than ten years in pre-trial detention. It seems debatable that ordering a retrial is really in the interests of justice, especially considering the completion strategy and the need for the Tribunal to finish its work soon.

Florence Hartmann Prosecuted for Contempt

Late last year, Florence Hartmann published her memoir of the International Criminal Tribunal for the former Yugoslavia, where she worked as an assistant to Prosecutor Carla del Ponte for several years. The account, entitled Paix et châtiment, is full of juicy gossip, although of course it is impossible to distinguish fact from fiction in many cases. I learned about secret decisions of the Appeals Chamber concerning disclosure of evidence from Serbia. As an employee of the Tribunal, Hartmann wasn't supposed to divulge these secrets. She might have been in breach of her contract of employment. But the Tribunal has gone a step further, charging her with contempt. She is ordered to appear in The Hague on 15 September 2008: http://www.un.org/icty/milosevic/hartmannf/trialc/order-e/080827.pdf. I'm not sure what they can do if she doesn't show up. I've always been intrigued at how the Tribunal gave itself the authority to prosecute contempt of court, as an ancillary or implied power, because the Statute does not give it any express authority in this area. Under the Statute, it has jurisdiction to prosecute serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991. It is not clear to me that publishing a book in Paris fits within this framework.

Working for the High Commissioner in Congo

An interesting job is advertised on the website of the Office of the High Commissioner for Human Rights, working on a mapping project in Congo. They are looking for someone immediately. The job lasts 6 to 9 months: http://www.ohchr.org/EN/AboutUs/Pages/WorkStudyOpportunities.aspx.

Venice Film Festival

I've been away from the blog for a week or so. This is my yearly visit to Venice for the summer school on cinema and human rights of the European Inter-University Centre. I saw a terrific film on Saturday, Z32 by Avi Mograbi. It is a film about an elite Israeli soldier who describes the murder of several Palestinians in what he called a 'revenge attack'. This was clearly a violation of international law (and, no doubt, a murder under Israeli law as well). The film has wonderful music, with an eclectic chamber orchestra that behaves a bit like a Greek chorus. It seemed to straddle the line between fiction and documentary, but at the end of the screening I went to congratulate Mograbi and ask how much of it was true. He answered: 'It's a documentary.' Try to see this one if you get the chance.