Why Didn’t the Council of Europe get the Nobel?

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The award of the Nobel Peace Prize to the European Union was an inspired choice. After centuries of civil wars, culminating in the most devastating conflict the world has ever seen, Europe has been largely at peace for nearly seventy years. Many deserve credit for this. Focussing on one of the central institutions of the ‘European project’ is fine. Nevertheless, it risks distorting our understanding of the peaceful Europe that the Nobel award appears intended to underscore.

The European Union began as an organization premised upon economic integration, although the dreams of many of those who were engaged in the process was for full-blown political union. Nevertheless, until the 1990s the focus within the European Union was probably more on a shared interest in material prosperity than any broader vision.

The larger perspective on Europe’s future was more he work of the Council of Europe. Founded in 1949, a year before the European Coal and Steel Community which is the ancestor of the European Union, the Council of Europe’s mission is the construction of a common democratic and legal area throughout the continent, based upon ensuring respect for human rights, democracy and the rule of law.

At the heart of the Council of Europe is the European Convention on Human Rights and its primary implementing organ, the European Court of Human Rights. It has provided the forum for the development of a shared European understanding rooted in respect for human dignity, pluralism and equality.

The Council of Europe has always had a larger catchment than the European Union. Today, it numbers 47 member states, whereas the European Union has only 27 members. A poor country can join the Council of Europe as long as it shares the organizations values. While the European Union, too, imposes political requirements for membership, it has always been and remains a club for wealthier countries.

Today, the Council of Europe and the European Union are joined at the hip. The Nobel committee might well have made a joint award as it has often done in the past. It is a pity that yesterday’s announcement leaves the Council of Europe (and the European Court of Human Rights) in the shade.

Today’s papers point to complaints in Greece, which sees itself victimized by the European Union and especially its common currency. A spokesman for the leftist party Syriza said: ‘In many parts of Europe, but especially in Greece, we are experiencing what really is a war situation on a daily basis…’ He should ask his grandparents to remind him about Greece in the 1940s, when millions died a violent death, before making even implied comparisons with Europe when it was really at war.

Still, the people of Greece would probably have understood better the message that the Nobel committee wished to communicate if the prize had been centred on the Council of Europe rather than the European Union. The story about the permanent peace that emerged in the course of what the late Eric Hobsbawm called the ‘short twentieth century’ has more to do with human rights than it does with the euro.

For several months, I have been meaning to write about Stephen Pinker’s brilliant book The Better Angels of our Nature. This is a good occasion, because Professor Pinker may well have influenced the Nobel committee. His thesis is that the world has become less and less violent. He makes a very compelling case in his erudite analysis of many centuries of human behaviour. One of the chapters is entitled ‘The Long Peace’. He writes:

The international entity with the best track record of implementing world peace is probably not the United Nations, but the European Coal and Steel Community, an Intergovernmental Organization founded in 1950 by France, West Germany, Belgium, the Netherland, and Italy to oversee a common market and regulate the production of the two most strategic commodities. The organization was specifically designed as a mechanism for submerging historic rivalries and ambitions – especially West Germany’s – in a shared commercial enterprise. The Coal and Steel Community set the stage for the European Economic Community, which in turn begot the European Union.

Many historians believe that these organizations helped keep war out of the collective consciousness of Western Europe. By making national borders porous to people, money, goods, and ideas, they weakened the temptation of nations to fall into militant rivalries, just as the existence of the United States weakens any temptation of, say, Minnesota and Wisconsin to fall into a militant rivalry. By throwing nations into a club whose leaders had to socialize and work together, then enforced certain norms of cooperation.

Professor Pinker’s analysis would be even stronger were he to focus more upon the role that shared values, of human rights, democracy and the rule of law, have played in European unification. Historically, that has been more the work of the Council of Europe than of the European Union.

I suppose that it will be the President of the European Council, Herman Van Rompuy, who goes to Oslo to accept the prize in December. But maybe the honour should go to Cyprus, which has the Presidency of the Council of the European Union. It is to be hoped that the acceptance speech will recognize the Council of Europe, the European Court of Human Rights and the European Convention on Human Rights.

When he learned he had won the Nobel Prize for literature, William Butler Yeats famously said: ‘How much?’ It is now about a million dollars. This is unlikely to make a significant impact on the fortunes of the euro. Maybe the European Union could earmark the prize money in a way that would symbolically underscore the importance of human rights and also acknowledge the contribution of the Council of Europe. It should give the money to the International Institute for Human Rights, which is located in Strasbourg just next to the European Court of Human Rights.

The Institute was founded in 1969 by René Cassin with the Nobel prize money he received in 1968, largely in recognition of his work in the drafting of the Universal Declaration of Human Rights. At the time he received the award, Cassin was president of the European Court of Human Rights. The Institute has been plagued with financial problems for many years, and the Nobel prize money would make a difference.

Another Comment on l'affaire Sow

Michael Bohlander was not the only person to have difficulty posting on the blog. Deborah Forbes has written a comment on his post, which was published here a few days ago:

Dear Professor Bohlander,

Like you, I have been unable to post comments on Prof. Bill's blog.  I however wanted to draw your attention to the following:-

1. SCSL Rules required that Judge Sow participates in all deliberations.  If the other three Judges held deliberations without him, that is problematic.  He is a very deligent Judge, the only one who is said not to have missed a single sitting of the case.  If he says there were no deliberations, we have to believe he means what he says, there were no deliberations.  If there were deliberations, then the other three must come out and either prove it or say so.

2. Volume of the Judgment: If you look at the first 750 pages closely, you will notice that it is a cut and paste job from previous judgements.  In case you are not aware, the formating of the original judgement told it all.  You will notice that the judgement was issued, posted on the Court's site, withdrawn from the SCSL site and refiled.

3. If rules are important, then Justice Julia Sebutinde of Uganda was unavailable from the date she took office at the ICJ.  ICJ rules do not allow her to continue sitting at SCSL and neither do UN rules allow her to hold any other judicial office other than the SCSL, except with the permission of the appointing authority.  As far as Judge Sow was concerned, he had become a substantive Judge from the date Sebutinde became unavailable.  He is convinced that it was within his remit to make the statement that he made.  He was technically a substantive Judge with a right to dissent.

Lastly, before you get tough on the Defence and Sow, find out why it was so important that Julia Sebutinde of Uganda remained in Office for the Taylor Judgement at all costs, against all rules and odds. Who is flouting the rules here, Judge Sow or The Court and Sebutinde.

Consider unprecedented 14 rounds of voting for ICJ Justice Sebutinde, she gets the majority in the GA but the SC (read America) says no.........remember wikileaks, Sebutinde and the Americans at war with each other, then suddenly, she bags the ICJ job but she must remain on the Taylor Bench?

Why did we have an alternate Judge at all?  He could have taken over her role on the Taylor .  She missed many Court sessions but Judge Sow did not?

In summary, perversion of justice, Taylor was guilty before his trial began. This is what we human rights activists should abhor, using International systems to endorse political agendas.

Sow did human rights a great favour, the rules we love and respect are destined to fail if we continue this way.

Student Research Conference in London

University of London is hosting a one-day interdisciplinary research conference on 20 November for postgraduate students in human rights. Here are the details: School of Advanced Study, University of London,?Room S261 (Second floor),?Senate House (South Block),?Malet Street,?London WC1E 7HU. There is a very modest registration fee.

Please send abstracts of up to 300-350 words to HRC@sas.ac.uk by 26 October 2012. Presenters will be asked to speak for 15-20 minutes on their research proposal and work to date.

Capital Punishment in Serbia

Here is an interesting new website on capital punishment in Serbia.

More on Judge Sow and the Special Court for Sierra Leone

Prof. Michael Bohlander has been trying to post a comment on the affaire Sow, but without success for what must be technical reasons. He has asked me to put his criticisms on the blog, something I am more than happy to do. I often receive comments that are critical of my own views and, as readers of this blog will know, am always pleased to publish them.
Before we get to Michael's comments, however, I want to point out that I must have been misunderstood.
I am not particularly concerned about whether or not Judge Sow (or his colleagues) behaved properly. The apparent attempt to remove him from office seems a disproportionate response, in any case, although it seems largely theoretical given the fact that the work of the Trial Chamber is finished. Probably it is not a good idea for judges to be left to discipline themselves. I don't think most national judicial systems do this, no doubt for good reason.
It is of course a fact that two judges are enough to convict, although the examples where one of the three judges believes guilt is not proven beyond a reasonable doubt are extremely rare. Perhaps it is not a good idea to allow two out of three judges to convict, at least on issues of fact. If one out of three (or one out of four) professional judges, elected at the highest level, has reasonable doubts about the guilt of an individual, perhaps that should be enough to make a verdict insecure. That is my only concern here.
Here is Michael's comment:

Dear Bill,

Unlike Dr Mezyaev I cannot support your criticisms.  What Judge Sow did was unprofessional and may very well constitute judicial misconduct of a grave nature.  

There are a few points I’d like to make:

Procedure and rule of law:

Procedural rules and their observance are an integral and often neglected part of the concept of the rule of law. A former ICTY judge once likened their relationship to the task of the court as that of the handmaiden, not the mistress.  Such a view can only have come from a common law judge, but I digress. These rules have to do with a core area of the rule of law, namely judicial conduct and ethics, and I thus fail to see how one can view this as secondary.  One should always start by assuming that issues such as the individual judge’s right to state their view and the need for an effective functioning of the administration of justice have been carefully balanced when the rules were made. One cannot just push them aside if in an individual case they lead to a result unpalatable to an observer. 

Judge Sow was a non-activated alternate judge. He was not called to decide upon the case. He did thus not even have the right to declare a dissenting opinion. His views were and are in law irrelevant.

How do we know, as Dr Mezyaev says, that Judge Sow spoke out “against injustice”? Have we seen the evidence in the case ourselves?  Were we present at the deliberations or did we witness their absence? Is it not  close to arrogance to second-guess the majority’s view and label  it with such strong words from the armchair view?

Majority vote in collegiate panels:

The concern of the other ICTY judge you mention who was apparently flabbergasted that his own doubts did not lead the other judges to have the same doubts, is evidence of a fundamental misconception of the workings of collegiate panels. It is a banal fact that the very notion of a majority verdict by necessity implies that the judges may disagree on reasonable doubt. In my own 13 years of judicial experience I encountered such situations from time to time.  Naturally, being outvoted is not a pleasant experience, especially if one feels strongly about a point, but unless your legal system allows you to write a dissent, that must be the end of it.

What Judge Sow actually said was this:

"The only moment where a Judge can express his opinion, is during the deliberations or in the  courtroom, and pursuant to the Rules, where there is no deliberations, the only place left for me in the courtroom. I won't get - - because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I'm afraid the whole system is under grave danger of just losing all credibility, and I'm afraid this whole thing is headed for failure. Thank you for your attention." (public  Annex A to the Defence Motion of 19 July 2012).

 Taken at its highest, this could be interpreted as an accusation of the majority of perverting the course of justice by not deliberating (at all). That apparently is the thrust of the defence motion. 

Use for the defence

Judge Sow’s aperçus from the bench  seem to insinuate that the Trial Chamber did not deliberate on the verdict. Deliberations are secret. Disagreeing judges can write dissents. Judge Sow was not entitled to a dissent because he was not called upon to decide the verdict. So he made his concerns known in the courtroom, albeit rather nebulously. The other communications in the disciplinary proceedings, including the email from Judge Sow responding to the charges, are confidential, apparently.

If he is alleging not just a difference of opinion (in which case he should have remained silent in the first place) but an absence of deliberations and as such a fundamental breach of procedure and possibly a perversion of the course of justice, one wonders why he did not go public with an explicit statement to the press etc. if he took the step of announcing such a thing in open court in such awkward words, with the obvious risk of disciplinary consequences. He might even be justified in doing so under general aspects of the necessity defence, yet that would need a lot more specification of his insinuated allegations.

The defence apparently pins its hopes on those five words “where there is no deliberations”.  Unless Judge Sow supports this  with more specific and testable allegations, it seems a bit difficult to believe that such a voluminous judgment was arrived at without any deliberation.  Judge Sow’s comment may just mean no more than that he felt aggrieved that his views were not shared by the others or possibly given short shrift because he was a non-activated alternate judge.

I am also somewhat bemused by the fact that the defence accepts that the judges are not actually biased, but then proceeds to base its disqualification motion on the “appearance of bias” gound. By their own admission of absence of actual bias they destroy the ground based on mere appearance. Logically, the latter is normally meant to be used if one suspects bias even if one cannot prove it, it is then that an appearance based on a fair-minded informed observer is sufficient. The disqualification procedure is, however, not an end in and of itself: If there is no actual bias, as the defence admits, then such a motion should not be filed; it is frivolous.

Dr Evelyne Schmid

From left, Prof. Chetail, Dr. Schmid, Prof. Clapham and myself.

Evelyne Schmid successfully defended her doctoral thesis, entitled 'Violations of Economic, Social and Cultural Rights in International and Transnational Criminal Law', on Thursday at the Graduate Institute of International and Developments Studies, in Geneva. Dr Schmid is now working as a lecturer at the University of Bangor, in Wales. Her work was supervised by Prof. Andrew Clapham. I was the external examiner and Prof. Vincent Chetail was the internal examiner. Congratualations, Evelyne.

Interesting Decision on Victim Participation at the International Criminal Court

An interesting decision on victim participation has been issued by Trial Chamber V of the International Criminal Court, which is hearing the Muthuara and Kenyatta case in the Situation in Kenya. One of the members of the Trial Chamber, Judge Van den Wyngaert, has already made her views known about witnesses and their participation in public lectures and in an article in the Case Western Journal of International Law.
One of the interesting features of the decision is the adoption of an innovative approach that may not be entirely in line with what is prescribed in the Rules of Procedure and Evidence. There is a discussion of the relationship between the Statute and the subsidiary legal instruments.

European Advocacy Centre to Join Middlesex

Middlesex University is a very dynamic place right now. A few months ago, the new School of Law was created. This week, its new dean, Professor Joshua Castellino, announced that the European Human Rights Advocacy Centre, formerly based at London Metropolitan University, will be moving to the Middlesex School of Law, where it will re-constitute itself as a separate Centre and sit alongside the Social Policy Research Centre.
The five-member Centre, directed by Professor Philip Leach, will pursue its focus on human rights litigation before the European Court of Human Rights. Its most recent work has focused on the human rights violations in Chechnya and elsewhere in the region that can broadly be described as the former Soviet Union, where they work very closely with the well-known Russian NGO Memorial. This is a great addition to Middlesex that should provide our students with an opportunity to gain internships and valuable experience.
Professor Philip Leach is a scholar of international repute with an outstanding research profile, which includes his highly acclaimed Oxford University Press book Taking a Case to the European Court of Human Rights.

Benjamin Ferencz Honoured in Nuremberg

Ben Ferencz in 1948 in the Nuremberg courtroom.

Ben Ferencz, taken yesterday in the Nuremberg courtroom. Behind him is the door through which the Nazi defendants entered.

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On Thursday evening in Nuremberg’s Grand Hotel, Benjamin Ferencz was honoured as the first recipient of the Nuremberg Lecture for Peace and Justice award. The honour was presented in conjunction with a conference organized by the new Nuremberg Peace Through Law Academy which was held in the famous Courtroom 600, where the Nuremberg trials took place.

Ben Ferencz, who is now in his early 90s, is an indefatigable campaigner for international justice, and in particular for its role in preventing aggressive war and promoting peace. He was the prosecutor in the Einsatzgruppen trial held from 1947 to 1948.

Judge Hans-Peter Kaul, left, at Chautauqua in August.

The award was delivered by Judge Hans-Peter Kaul of the International Criminal Court in a wonderful tribute, available here.