Preliminary investigation into UK activity in occupied Iraq

The Prosecutor of the International Criminal Court stated today that she will resume an investigation into conduct of forces of the United Kingdom during the Iraq occupation. In 2006, the previous Prosecutor issued a statement saying that he had decided not to proceed with investigations. Earlier, as we now know from Wikileaks, he had reassured diplomats that he had no intention of investigating conduct of the occupying forces in Iraq.
Today's statement by the Prosecutor notes that new information has been received in a submission by the European Center for Constitutional and Human Rights and Public Interest Lawyers. The full communication, delivered to the Prosecutor in January of this year, can be found here. The Prosecutor should be congratulated for her courage in taking this step. It will no doubt incur the wrath of the right wing press and conservative politicians who think that there are two standards of justice, one for the global south and another for those who wrote the Magna Carta.
Last week, the Prosecutor indicated that she would begin an investigation into the Ukraine as a result of that country's declaration accepting jurisdiction of the Court. And presently, France is promoting a resolution in the Security Council aimed at referring the situation in Syria to the International Criminal Court.
For the Court, this activity in States outside Africa where very strategic interests of major powers are involved is a welcome development. It will help to transmit a message that this is an independent and impartial institution capable of judging the strong and not only the weak. 

Dr Helen McDermott

Dr Shane Darcy, Dr Helen McDermott, Professor Carsten Stahn, Dr Noelle Higgins

Helen McDermott successfully defended her PhD thesis, 'Extraterritorial Abduction under the Framework of International Law: Does Irregular mean Unlawful?', at the Irish Centre for Human Rights on Tuesday 6 May. The external examiner was Professor Carsten Stahn of Leiden University and the internal examiner was Dr Noelle Higgins of the Irish Centre for Human Rights. The panel, who awarded the PhD without corrections, are pictured here with Helen and her supervisor, Dr Shane Darcy. Congratulations, Helen! 

Quebec Court of Appeal Upholds Rwandan Genocide Conviction

The Quebec Court of Appeal has upheld a judgment convicting Désiré Munyaneza of genocide with respect to events in Rwanda in 1994. The prosecution is based upon the principle of universal jurisdiction. Munyaneza had been convicted in a trial held before a judge sitting without a jury and sentenced to life imprisonment without eligibility for parole for twenty-five years. This is an automatic sentence triggered by a conviction for murder and the Court of Appeal did not therefore reconsider it.

Judgments in criminal appeals are final with the possibility of appeal to the Supreme Court of Canada only with the permission of that Court. If there is not grant of leave to appeal, this will be the first conviction based upon universal jurisdiction by Canadian courts since legislation was adopted to permit this in the late 1980s.

The judgment is available in the original French and in an English translation.

Thanks to Raymond Savadogo.

Referring Syria to the International Criminal Court

France is currently preparing a Security Council resolution referring the situation in Syria to the InternationalCriminal Court. If adopted, it will be the third referral of a situation by the Security Council under article 13(b), and the first referral of a State outside Africa.

Previously, such an effort seemed to have no chance of success because Russia would not support it. But it seems that the difficulty now is finding language for a referral that will satisfy the United States. It would be happy enough to see the current regime in Syria threatened with prosecution. However, it is concerned that a referral of Syria would include Golan, which is Syrian territory occupied by Israel for nearly fifty years.

According to the New York Times, the proposed resolution will define the ‘situation’ narrowly, describing it as ‘involving the Syrian government of President Bashar al-Assad, its allied militias, and armed opposition forces between March 2011 and the present’ and to exempt ‘current or former officials or personnel’ of countries that have not ratified the Rome Statute, except Syria.

If the resolution is ever adopted, it will provide the Court with the opportunity to pronounce itself on the legality of such restrictions. In 2004, when Uganda attempted to limit the scope of a referral to the enemies of the regime rather than to the ‘situation’ in general, the Prosecutor insisted that this be reformulated in a more neutral way. With discussions underway in New York about the resolution, it might be a good occasion for the Prosecutor of the Court to make a statement reminding the Security Council of the importance of neutrality in any resolution.

The Prosecutor is required to undertake an investigation when a situation is referred to the Court by the Security Council. She can decline to do so if it is not in the ‘interests of justice’. Perhaps such a one-sided referral would fall into such a category. An alternative approach would be to consider a targetted referral like the one currently being proposed by France as being simply inconsistent with the terms of article 13 and therefore of no legal effect. The Security Council’s powers are circumscribed by article 13 of the Statute. If it does not refer a ‘situation’ but rather a ‘situation within a situation’, then it has not complied with article 13 and the resolution does not therefore trigger the jurisdiction of the Court.

Luis Moreno-Ocampo: The Gift that Keeps on Giving

Is it really possible that a senior official of the International Criminal Court would actually discourage States from ratifying the Rome Statute?
Yet that seems to be the advice that Luis Moreno-Ocampo, who was Prosecutor of the Court from 2003 to 2012, is offering to both Israel and Palestine.
He is quoted by Associated Press on a recent visit to Israel:

JERUSALEM –  A former chief prosecutor of the International Criminal Court says Palestinians should proceed with caution as they consider pursuing war crimes against Israel.
Since winning upgraded status at the United Nations in 2012, the Palestinians have threatened to turn to the ICC to press charges against Israel at the world's first permanent war crimes court if peace efforts fail. The latest round of talks broke down last month.
Luis Moreno-Ocampo on Wednesday said the Palestinians are indeed eligible to join the court. But he said if they accepted its jurisdiction, Gaza's Islamic Hamas rulers also could be investigated for rocket fire and suicide bombings against Israeli civilians.
In his first visit to Israel, he recommended the sides avoid the court and find a "creative" way to resolve their differences.

I don't believe Moreno-Ocampo is alone in adopting this position. He may have picked it up from the US Department of State, whose views he has often echoed. But the United Kingdom and France, both of the States Parties to the Rome Statute, have also suggested that Palestine should not ratify the Rome Statute.
This sheds additional light on the Court's African focus, something that is very much the legacy of Luis Moreno-Ocampo. If he thinks Palestine and Israel should look for a 'creative' solution to their differences and that they should avoid the Court, his message seems to be that the institution is good for Africans but not for others.
It would be helpful to the Court if Moreno-Ocampo would keep his mouth shut.

Public Health, National Security and Human Rights

A conference entitled 'National Security and Public Health: Exceptions to Human Rights?' will be held at the Institute for Advanced Legal Studies in London on 29 May.  More information can be found here.

Proof in International Criminal Trials

From 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials, kindly supported by the British Academy.

There is now an impressive body of literature on the precise scope, context and application of rules of evidence in international criminal trials. However, issues surrounding proof and reasoning on evidence in international criminal law have remained relatively under-examined to date. By bringing together judges, practitioners and leading scholars on evidence, international criminal procedure and analytical methods, this conference will comprehensively address issues related to proof in international criminal proceedings. These issues include, inter alia, the means by which inferences are drawn, how reasoning on findings of fact is articulated in judgments, and how witness credibility is assessed. Participants will analyse some of the challenges of fact-finding in the complex context of international criminal trials, which often involve large masses of evidence and hundreds of witnesses.

Confirmed speakers include:
Professor Terence Anderson, University of Miami
Anna Marie Brennan, University College Cork​
Professor Nancy Combs, College of William and Mary School of Law
Judge Teresa Doherty, Residual Special Court for Sierra Leone
Professor John Jackson, University of Nottingham
Dr Mark Klamberg, University of Uppsala
Dr Yassin M’Boge, Leicester University
Dr Triestino Mariniello, Edge Hill University
Dr Yvonne McDermott, Bangor University
Professor Paul Roberts, University of Nottingham
Professor William Twining, University College London
Oliver Windridge, International Criminal Tribunal for Rwanda

To register, please follow this link.

2014 Venice School of Human Rights

The fifth edition of the EIUC Venice School of Human Rights will run from 27 June to 5 July 2014 and is accepting applications until 15 May 2014.

The EIUC Venice School of Human Rights will update participants on the state of the art debate on human rights issues and stimulate their reflection on the current challenges faced by human rights actors worldwide. After an introduction on current challenges, participants will have the opportunity to learn more about one of these 3 selected topics "Business and Human Rights”, “The Internationalisation of Migration Law and the Role of the EU” and “Freedom of Expression and Assembly Online”.

The EIUC Venice School combines theory and practice and its faculty involves internationally recognised academics and practitioners. Prof. Martin Scheinin, former UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and Prof. William Schabas from the University of Middlesex will open the Venice School 2014.

Check here for the full programme details.

Meet, mingle and discuss in the historical and peaceful location of the Monastery of San Nicolò which is situated on the island of the Lido of Venice, where human rights, arts and team spirit will play the setting of your summer!

Dates: 27 June - 5 July 2014. Type of courses: Lectures in the plenum and smaller seminars Application deadline: 15 May 2014.

Information: www.eiuc.org/veniceschool

Obama Calls for Review of Death Penalty

Last week, the White House issued two statements on the death penalty, one about the industrial-scale death sentences in Egypt and the other about the brutality of the execution in Oklahoma. This is quite unprecedented. It is quite unusual for the White House to even engage on the issue as the US death penalty is very largely the responsibility of the states. Years ago, before he was President, Obama was uncompromising in his opposition to capital punishment. He adjusted his public position slightly so that it would not threaten his electability. But it does not take much imagination to conclude that he would be very pleased if the death knell on capital punishment in the United States would sound during his administration.

Two days ago, in a press conference with Chancellor Merkel of Germany, he said the following in response to a question:

PRESIDENT OBAMA:  What happened in Oklahoma is deeply troubling.  The individual who was subject to the death penalty had committed heinous crimes, terrible crimes.  And I’ve said in the past that there are certain circumstances in which a crime is so terrible that the application of the death penalty may be appropriate -- mass killings, the killings of children.  But I’ve also said that in the application of the death penalty in this country, we have seen significant problems -- racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence.  And all these I think do raise significant questions about how the death penalty is being applied.  And this situation in Oklahoma I think just highlights some of the significant problems there. 

So I’ll be discussing with Eric Holder and others to get me an analysis of what steps have been taken not just in this particular instance but more broadly in this area.  I think we do have to, as a society, ask ourselves some difficult and profound questions around these issues.

A presidential initiative on the death penalty would be a very important development. Some years ago in Illinois the governor set up a commission to study capital punishment. It was necessarily balanced in its composition, but its conclusions helped move Illinois from the death penalty camp into the abolitionist camp. Perhaps Obama should set up a high-level panel to advise him on this subject.