Bulletin of Irish Centre for Human Rights

The latest edition of the Bulletin of the Irish Centre for Human Rights is now available on our website.

Bashir in Kenya

Max DuPlessis and Christ Gevers have written a thoughtful article on the visit by President Bashir of Sudan to Kenya, and the failure of the authorities to enforce the arrest warrant issued by the International Criminal Court.

Michael D. Higgins is Candidate for Presidency of Ireland

Amongst his many distinctions and accomplishments, Michael D. Higgins TD is an adjunct professor at the Irish Centre for Human Rights. Yesterday, Michael announced that he is seeking the nomination of the Labour Party for the Irish Presidency. He has given several interviews is which the elements of his unique candidacy are set out, including a piece in yesterday's local paper, the Galway Advertiser. Here is an excerpt:

Dep Higgins has always been an outspoken member of Dáil Éireann, speaking continually in favour of human rights, on Israel/Palestine, and in opposition to the so called ‘war on terror’. The President of Ireland, despite being the highest political honour and post in the State, is ironically meant to be ‘above’ politics, and is constrained in what s/he can say.

Given his passion for human rights and interest in international affairs, Dep Higgins is not someone who would be able to remain silent on such issues, or be blandly, and inoffensively neutral.

As such a Michael D presidency would be an ‘active presidency’, but does the role allow for that?

“I have looked in detail at the role of the president and there is scope within it to address issues such as in the area of culture, human rights, the future of Ireland,” he says, “and with my background in political science, I know what the role entails as well.

“I am an adjunct Professor at the school of Human Rights in NUI, Galway and there are many ways in which such issues can raised. I will be able to give my emphasis and analysis and offer people intellectual options to help break the cycle of fatalism.”

Best of luck, Michael

Photo credit Pa Dinneen: http://www.photoblog.ie 

Ombudsperson

The United Nations Security Council has established an Ombudsperson, who is responsible for dealing with issues that arise as a result of the blacklists and freezing orders imposed by the Security Council as part of its counter-terrorism activities. I had dinner last night in New York with the office holder, Kimberly Prost, who was recently an ad litem judge of the International Criminal Tribunal for the former Yugoslavia.  There, she participated in the recent Popovic decision, which by the way has some interesting bits about genocide.
The Ombudsperson is a fascinating new mechanism that certainly deserves an LLM dissertation and a law review article. It is a response to the lack of any form of judicial or quasi-judicial control over the actions of the Security Council, which may have devastating consequences for human rights. The Council can - and has - imposed travel bans and frozen bank accounts on individuals. When they learn of this - often by accident, when they arrive at an airport and try to use a credit card to buy a plane ticket - they learn that there is no real judicial recourse. The measures have shocked judges at the national and international levels. There is a recent article on this by Gráinne de Búrca in the European Journal of International Law ((2009) 20 EJIL 853) that provides all of the relevant references.
The mechanism of an Ombudsperson isn't adequate, in my opinion, but it is certainly a great improvement on what previously existed. The work of the Ombudsperson will necessarily involve a lot of confidential activity. It will be a real challenge for researchers to see how much we can learn about her activities.

Contempt Ruling by Extraordinary Chambers of the Courts of Cambodia

Here is a recent decision by the Extraordinary Chambers of the Courts of Cambodia. The bench splits, with the international judges voting one way and the national judges voting the other way. It is on a defence motion calling for an investigation into government interference.
Thanks to Robert Petit.

'Double Genocide' in Lithuania

Yesterday's Guardian had an interesting column by Jonathan Freedland on the so-called 'double genocide' in Lithuania during and after the Second World War. It is a useful contribution to the discussions about moral equivalence, and the tendency to a broad use of the word 'genocide' with the consequence that it diminishes the horror and stigma of real genocides.

Ireland Condemned by Grand Chamber of European Court of Human Rights for Fair Trial Violation

Today, the Grand Chamber of the European Court of Human Rights ruled against Ireland in a case involving unreasonable delay in a criminal prosecution: Here is the Court's press release in McFarland v. Ireland (for the full decision, click here):

Principal facts

The applicant, Brendan McFarlane, is an Irish national who was born in 1951 and lives in Belfast. The case concerned unjustified delays in the criminal proceedings brought against him for offences allegedly committed in 1983, of which he was acquitted in 2008.

In January 1998 Mr McFarlane was released on parole after serving a prison sentence in Northern Ireland for his involvement in a bombing in the 1970s for which the IRA (Irish Republican Army) was found to be responsible. A few days after his release, he was arrested and detained by the Irish police and subsequently charged by the Special Criminal Court (SCC) in Dublin with false imprisonment and the unlawful possession of firearms, offences he was alleged to have committed in 1983 when he had escaped from prison. On 13 January 1998 he was released on bail, subject to reporting restrictions

Mr McFarlane brought judicial review proceedings with regard to his prosecution, claiming that the delay in bringing criminal proceedings against him had prejudiced his chance of having a fair trial and that the failure of the prosecuting authorities to maintain and have available for inspection certain items of evidence (such as fingerprints) had limited his ability to fully contest the nature and strength of the evidence to be introduced at his trial. His claims regarding the delay in bringing proceedings were eventually dismissed by the Supreme Court in 2006, finding that the decision when to prosecute clearly rested with the prosecuting authorities. With regard to the loss of evidence, the Supreme Court concluded that the trial court deciding on the case would have to assess whether there was any unfairness for which the prosecution was responsible. A further application to prohibit the prosecution on grounds of delay was dismissed in January 2008. During the criminal proceedings against him, Mr McFarlane reported to the SCC some 40 times, a round trip to and from his home of 320 km. He was finally acquitted in June 2008.

Complaints, procedure and composition of the Court

The applicant complained: under Article 6§1, that the Irish authorities delayed bringing and proceeding with the criminal proceedings against him; under Article 6§3(d), that, as a result of the delay, key prosecution evidence was lost and that there was a lack of evidence against him other than questionable police interviews; under Article 8§2 (right to respect for private and family life), that his arrest and detention amounted to a deliberate and disproportionate interference with his private and family life; and, under Article 13, that there was no effective remedy under Irish law for his grievances, particularly concerning the length of the proceedings.

The application was lodged with the European Court of Human Rights on 21 July 2006.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Decision of the Court

Article 13

The Court did not find effective any of the domestic remedies proposed by the Irish Government.

Concerning the first and main remedy proposed – an action for damages for a breach of the constitutional right to reasonable expedition – the Court found that there was significant uncertainty as to its availability.

While it had been available in theory for almost 25 years, it had never been invoked. The development and availability of a remedy said to exist, including its scope and application, had to be clearly set out and confirmed or complemented by practice or case law, even in the context of a common law inspired system with a written constitution providing an implicit right to trial within a reasonable period of time (as in Ireland).

The Court also considered that it had not been demonstrated that such an action could constitute a remedy as regards a judge’s delay in delivering a judgment. Moreover, the fact that the proposed constitutional remedy would form part of the High and Supreme Court body of civil litigation, for which no specific and streamlined procedures had been developed, meant that it would amount to a legally and procedurally complex constitutional action for damages in the High Court, with a likely appeal to the Supreme Court which, at least at the outset, would present some legal novelty. Two problems ensued: the time such proceedings could take (possibly several years) and the potentially high legal costs and expenses involved in taking such an action.

As to the remaining remedies proposed by the Irish Government, the Court found an action for damages under the European Convention of Human Rights Act 2003 ineffective since, among other things, it appeared that any delay attributable to “the courts” was not actionable under that Act and since the 2003 Act did not enter into force until 31 December 2003, by which time the applicant’s proceedings had been ongoing for almost six years (the 2003 Act is not retroactive). An application for a prohibition order by reason of prejudice and real risk of unfair trial due to delay was substantively different from, and not effective as regards, a complaint about unreasonable delay within the meaning of Article 6 § 1.

The Court therefore concluded that the Government had not demonstrated that any of the remedies proposed by them constituted effective remedies available to the applicant in theory and in practice at the relevant time. Accordingly, there had been a violation of Article 13, in conjunction with Article 6 § 1.

Article 6 § 1

The Court considered that the criminal proceedings against the applicant had lasted over 10 years and six months, from the applicant’s arrest on 5 January 1998 to his acquittal on 28 June 2008.

While the conduct of the applicant had contributed somewhat to the delay, it did not explain the overall length of the proceedings against him. On the other hand, the Government had not provided convincing explanations for certain delays attributable to the authorities, which added to the overall length of the criminal proceedings.

As to what was at stake for the applicant, the charges against him were serious and he bore the weight of such charges and of the potential sentences, for approximately 10 years and six months, during which time he had reporting obligations and was frequently required to appear in Dublin before the SCC.

The Court concluded that the overall length of the criminal proceedings against the applicant were excessive, in violation of Article 6 § 1.

We'll discuss this at the next PhD student seminar, scheduled for 28 September at 17h00 in my office.

Judge Hans-Peter Kaul on the Crime of Aggression

This has been on the website of the International Criminal Court for a few days already, but only came to my attention today. Judge Hans-Peter Kaul delivered a marvellous keynote address on the crime of aggression at the Chautauqua Humanitarian Law Dialogues last week. Here is a picture of him, in a more relaxed mode, after our dinner cruise on the lake.

Selecting Judges for International Criminal Tribunals

Today's Guardian has an interesting article on the selection of international judges. The Rome Statute makes very elaborate provision for the selection of judges but ultimately the process is at the mercy of the States Parties who nominate them. At the European Court of Human Rights, States must nominate three judges, who are then interviewed and a candidate is chosen by the Parliamentary Assembly. Andrew Drzemczewski  recently sent me an article he has published on the subject.
I was never so troubled about the fact that the first Japanese judge didn't have a law degree. She had many years of experience in the field of human rights law. The fact that she had not taken courses in tax law and divorce law didn't seem to me to be an obstacle to being a good judge. Many people with law degrees have never studied public international law, or international criminal law, or international humanitarian law. Is a law degree such an important qualification?
The Rome Statute provides for two categories of judges, those with criminal trial experience and those with and international law background. I think that it exaggerates the importance of  international law in the work of international criminal judges. If all of the judgments of all of the international criminal tribunals is put together, we end up with many rather perfunctory references to article 31 of the Vienna Convention on the Law of Treaties and not much more. The word on the street is that this was injected in the Statute in order to provide an entry point for diplomats. Yet some diplomats have been find judges at the Court.
The danger is that in over-regulating the selection process we will exclude very fine people who will make very fine judges. We will develop career profiles that are believed to identify ideal judges, and dismiss the candidacies of others who do not have these. I doubt that is a good idea.
Actually, the more mysterious process is the appointment of the Prosecutor of the International Criminal Court. The first Prosecutor was elected by acclamation, as he was the only candidate. There had been back-room negotiations and he was the result. The same process looks likely with respect to the next Prosecutor, who must be chosen by early 2012. Not only is the process opaque, we do not have any agreement on the qualifications of the ideal prosecutor. I'm struck by the fact that among the best prosecutors at the international level - I'm thinking of Richard Goldstone, Louise Arbour, and Robert Jackson - we have people who were judges without significant prosecutorial experience. Perhaps we should be looking for the next Prosecutor on the bench, maybe among judges as the International Criminal Tribunal for the former Yugoslavia or one of the other tribunals.

Cinema and the Universal Declaration of Human Rights

We are in the midst of our summer course on Cinema, Human Rights and Advocacy, which is organized jointly by the Irish Centre for Human Rights and the Huston Film School. My part in the programme is a presentation on the Universal Declaration of Human Rights using films to illustrate its content. The films I use are, of course, a personal choice, and are influenced by my own background, interests and idiosyncrasies. Really, the films provide talking points for a discussion about the substantive rights. The 60-slide presentation uses still photos and posters of the films. One day, I'll figure out the technology enough so that I can use short clips from the films too. Here is the presentation.