European Court of Justice Ruling on Products from West Bank Settlements

A ruling by the European Court of Justice last week holds that goods produced in Jewish settlements in the occupied West Bank cannot benefit from trade agreements between Europe, Israel and the Palestinian authority that give preferential access to European markets. Products such as wine, cosmetics and computer equipment are produced at illegal settlements in the West Bank. The consequence of the ruling it to allow tariffs to be imposed, making the goods less competitive in European markets.
Thanks to John Reynolds

Universities Should Defend Academics Charged with Libel

My recent post on the criminal prosecution of Joseph Weiler before the French courts for publishing a book review deemed, by the author of the book in question and seemingly nobody else in the known universe, to be defamatory, recalls a legal battle that I was subjected to in Canada more than a decade.
I was sued for defamation by Leon Mugesera, who fled Rwanda in the early 1990s and whose name has often been linked to the incitement and planning of the 1994 genocide. See, for example, Akayesu, para. 100 and Mugesera's own case before the Supreme Court of Canada. I had from time to time done media interviews in Canada on developments in Rwanda, and had referred to Mugesera's case. His claim was for about half a million dollars! My daughter Louisa freaked out when the bailiff arrived at the door.
I took the writ to the lawyers of my university and explained that I thought they were required to defend me, as doing such interviews was part of my duties as an academic. They didn't commit immediately, however, and instead called in the insurance company of the university. It was clear that the general insurance policy was probably meant to cover people who slipped in stairwells, or who fell on the ice on the steps outside the university, and not human rights academics sued by suspected génocidaires for defamation.
But the insurance policy was drafted broadly enough to cover my case, and the insurers agreed to take up the case. They even said they were proud to defend me because they had reviewed my statements on the subject and noted that I had always insisted that although Mugesera should stand trial, he was still presumed innocent.
Next, they did what insurance companies normally do in defence: file lots of punishing motions against the plaintiff. Within days, Mugesera's lawyer (the same guy who was later sanctioned by the Supreme Court of Canada for anti-semitic remarks - see Mugesera, para. 17.) asked if we would drop the case without costs, which we agreed to do. They had presumed that defending an expensive libel case would be a great financial burden on me, and perhaps had calculated that it might discourage me from continuing to speak out about Rwanda. Once the university's insurance company entered the battle, the balance of forces changed dramatically.
In convincing the university and its insurers to defend me, one of my strongest arguments was the fact that members of the faculty regularly reported to the university on our activities, and I had systematically mentioned 'interviews with media' as one of my academic tasks. Universities generally like the visibility of their academics being interviewed as authorities on various subjects. That means, of course, if and when we are sued we must insist that the university act in our defence.
Joe Weiler is a pretty smart lawyer, and I'm sure he has already figured this out. But for those of you who may not have thought this issue through, I would urge you to regularly inform your university if you do such media work, to identify yourself when you are interviewed as being associated with the university, and to seek opportunities to describe such work as part of your academic task. Having such protection should promote our academic freedom.

Best Practice on the Right of the Child to be Heard

Aoife Daly, who teaches on our LLM programme, had a piece in the Irish Times last week about the right of the child to be heard in judicial and administrative proceedings.

Irish Foreign Minister Condemns Gaza Violations of Human Rights, Supports Goldstone Commission

In a speech delivered to the 'high level segment' of the United Nations Human Rights Council in Geneva earlier this week, Ireland's Foreign Minister Micheál Martin criticized human rights abuses in Gaza resulting from the Israeli blockade. He also indicated support for the Goldstone Commission, which found that war crimes had been committed during the Gaza conflict in late 2008 and early 2009. Here are the relevant passages, taken from the full speech:

Last week, I paid a visit to Gaza. I was the first Foreign Minister of an EU member State to do so in over a year. My purpose in travelling was a humanitarian one, to see for myself the impact of a blockade which has now been imposed on the people of Gaza for some two-and-a-half years. The situation there is truly a humanitarian crisis, with a growing proportion of Gazans receiving insufficient food each day and some 80% of the population now subsisting below the poverty line. My visit reinforced my belief that the conditions under which the people of Gaza have to live as a result of the blockade are inhumane and utterly unacceptable. Normal international standards of human rights are not being respected. It is completely unjust that an entire population should be subjected to medieval siege conditions of this kind. As this situation strengthens extremism and undermines the voices of moderation, it is also wholly counter-productive in terms of achieving the wider political progress which is so urgently needed in the Middle East.
I believe that the credibility of the international community is at stake in Gaza. We must step up pressure for a lifting of the blockade and the opening of the border crossings to normal commercial and humanitarian traffic.
I am also convinced that accountability for the most serious offences which occurred during the Gaza conflict in late 2008/early 2009 must be ensured. That is why Ireland voted for the Resolution adopted by the UN General Assembly last November on the Goldstone Report and why we similarly supported the Resolution adopted last week reiterating the call on both sides to conduct credible and independent investigations. While we do not endorse every recommendation in the Goldstone Report, we do recognise it as a serious and very important contribution to our understanding of what took place in Gaza and southern Israel and of the need to
ensure some form of appropriate accountability for actions which occurred.

See also the video of the speech.
Among the 'Western European and other Group', with which Ireland is associated in the United Nations, I believe it is the only State to have taken such a public position.
Minister Martin also expressed concern about the human rights situation in the Democratic Republic of the Congo, North Korea and Burma.

Texas Judge Declares Death Penalty Unconstitutional

A judge in Texas has declared the death penalty to be unconstitutional, according to the Houston Chronicle.
According to Judge Kevin Fine, a District Judge in Houston:

Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed. It's safe to assume we execute innocent people. Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty? I don't think society's
mindset is that way now.

It seems likely that Fine's ruling is likely to be overturned on appeal by the State prosecutors. But this is how the abolition of the death penalty in the United States will begin.
With only about 47 States in the world that still use the death penalty, and only about 20 of them that use it regularly and to a significant extent, the United States is increasingly isolated on this important human rights issue. Statistics show that the use of capital punishment in the use is on the decline, and that juries are increasingly reluctant to impose it. Public opinion favourable to capital punishment has dropped significantly compared with a decade or two ago. Concerns about the execution of the innocent, which Judge Fine highlighted, have contributed to these changes.
Probably, some minor adjustments in the composition of the United States Supreme Court will be required before an application whose consequence would be judicial abolition could succeed. Hopefully, President Obama will get the chance to do this in the course of his term(s).
Thanks to Diane Amann.

Book Reviews and Academic Freedom

A distinguished academic, Professor Joe Weiler of New York University, is facing criminal prosecution in France on charges of defamation because he published a negative book review. The review was written by another very distinguished scholar, Thomas Weigend. This is a very disturbing development that threatens to chill academic debate. Professor Weiler has written a detailed account of the issues in the recent issue of the European Journal of International Law. In response to his appeal, I have already sent a letter of support, cosigned by my colleagues Prof. Carsten Stahn and Prof. Kai Ambos, in my capacity as editor in chief of the Criminal Law Forum.

European Court Issues Strongest Decision Ever on the Death Penalty

Yesterday, a Chamber of the European Court of Human Rights issued its judgment in the Al Saddoon and Mufhdi case. The two applicants were represented by the courageous English human rights lawyer (and very dear personal friend) Phil Shiner. The Chamber found that the United Kingdom had imposed mental suffering upon the applicants sufficient to violate article 3 of the European Convention on Human Rights because it exposed them to the threat of capital punishment. Al Saddoon and Mufhdi were in fact surrendered by the British to the Iraqi’s, where they were subject to proceedings that might have had the death penalty as an ultimate result. The Chamber noted that the applicants, who are of course still in custody of the Iraqi authorities, continue to remain under threat of capital punishment.
The Court’s decision was based exclusively on the prohibition of ‘inhuman and degrading treatment’. The Court found it unnecessary to rule specifically on article 2 of the Convention (the right to life) and Protocol No. 13, to which the United Kingdom is a party. Signalling the elements of its own progressive interpretation of the Covnention, the Chamber said:

It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the Member States have now signed Protocol No. 13 and all but three of the States which have signed have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty…

Finally! This was the struggle that Nigel Rodley and Amnesty International began during the Soering case, more than twenty years ago.
It is too early to say whether this case will go to the Grand Chamber of the European Court, or whether it will be left to become a final judgment.

Agathe Habyarimana Arrested in France for Extradition to Kigali

The widow of Rwanda's former President Juvénal Habyarimana, Agathe, was arrested in France yesterday on the basis of an international arrest warrant seeking her extradition to Rwanda to stand trial for charges related to genocide. See the story in Le Monde.
In the past year or so, several European students have refused to extradite to Rwanda on the grounds that the justice system does not provide satisfactory guarantees of fairness to an accused. Sweden, on the other hand, has agreed to extradite a suspect to Rwanda; the case is currently before the European Court of Human Rights. Courts and justice officials in Europe have been encouraged by decisions of the International Criminal Tribunal for Rwanda refusing to transfer suspects to Rwanda.
But the Prosecutor of the International Criminal Tribunal for Rwanda has suggested that the problems with Rwanda's justice system are in the course of being resolved. He has said he expects to apply again for transfer of cases to the Rwandan courts. If the judges of the International Criminal Tribunal for Rwanda support this, it will open the door to extraditions from Europe and elsewhere.
Agathe Habyarimana was in Rwanda at the time the genocide began, but was soon evacuated to France. She was widely alleged to preside over an inner circle that played a role in organizing the 1994 genocide.
Thanks to Dov Jacobs.

Karadzic Trial: Joe Powderly on BBC World News

Joe Powderly, who is completing his PhD in international criminal law at the Irish Centre for Human Rights, and who is now a research fellow at the Asser Institute in The Hague, was interviewed on BBC World News earlier today about the opening of the Karadzic trial. Well done, Joe.

Peace, the Olympics and US Militarism

The Olympic Games have a leitmotif of peace. In ancient times, they brought with them a holy truce of Greek cities. All wars were supposed to cease while the games were carried out. The same spirit should today bring together athletes from around the world as we celebrate our humanity.
However, the US hockey team apparently saw the recent winter Olympic Games as a chance to promote its country’s military goals. Driven by a group called Operation Homefront, each player on the team was paired with a wounded veteran in order, according to one of the organizers, ‘to help the players understand they're not playing for the Stanley Cup, but their country’. We all sympathize with the young men and women who have been wounded, but nor should their suffering be exploited and ultimately tarnish the ideal of the Olympics by trying to use it is a celebration of American militarism.
There were reports of US players displaying militarist slogans on their uniforms. Backup goalie Jonathan Quick had ‘support our troops’ written on his helmet. According to the US team’s general manager, Brian Burke: ‘The real heroes in America don't wear hockey uniforms, they wear police uniforms, they wear camo, they wear fire uniforms, and we want our players to understand that what we do is small potatoes compared to what those people do.’ One of the team’s forwards, Dustin Brown, was quoted as follows: ‘We realize that our soldiers always have to go over into foreign soil and get the job done and they always do. That is kind of our theme. We are on foreign soil and we have to get the job done.’
It is a perversion of the Olympic ideal to use it for such chauvinistic purposes. Brown should be told that he was not on Canadian soil ‘to get the job done’ but because he was invited. The US team was defeated in yesterday’s final of the Olympic Games, by Canadian players, whose ambitions are more modest but who play beautiful hockey.