Death Penalty for Child Rape Declared Unconstitutional

Yesterday, the United States Supreme Court (by 5 to 4) in Kennedy v. Louisiana voted to declare unconstitutional a Louisiana statute authorising the death penalty for raping a child, even if there was no loss of life: http://www.supremecourtus.gov/opinions/07pdf/07-343.pdf. The Court applyied its eighth amendment jurisprudence, by which punishment must be consistent with 'evlolving standards of decency'. International human rights law prohibits capital punishment, although States that still retain the death penalty may still use it for the 'most serious crimes' (International Covenant on Civil and Political Rights, art. 6(2)). It is usually argued that the concept of 'most serious crimes' means that the crime must involve intentional loss of life, although some States continue to apply it for crimes such as drug trafficking and, in a few cases, adultery(!).
You will never guess who criticised the Court's opinion: 'I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes. I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that that does not violate our Constitution.' Those are the words of the Senator from Illinois, Barack Obama.
Thanks to Bill Harzog for this.

Latest News from The Hague

Yesterday, the Trial Chamber in the Lubanga case held a hearing to follow up on its earlier decision, reported on this blog last week, to grant a stay of proceedings because of the refusal of the Prosecutor to remit potentially exculpatory documents to defense counsel. No decision was made yesterday, but written decisions are promised soon.
The Trial Chamber said it was premature to consider releasing Lubanga. First, the Prosecutor is applying to appeal the decision. Apparently, the Trial Chamber seems to think that leave to appeal must be granted first, although this does not seem obvious to me. The Rome Statute does not provide for a stay of proceedings, and as a result it does not establish the procedure for appealing a judgment granting a stay of proceedings. I would be inclined to treat a stay as analogous to an acquittal or a conviction, and therefore it is a decision that is subject to an appeal of right and not with leave.
They are also talking of releasing the accused. He was brought to The Hague from his cell in Congo, where he was awaiting trial on charges of genocide and crimes against humanity. Rather than be released, it seems to me that he should be returned to Congo for trial on these charges.
According to the press release issued yesterday by the Court, http://www.icc-cpi.int/press/pressreleases/389.html, presiding Judge Fulford said that 'any proposal allowing the judges to view the potentially exculpatory material that forms the basis of the stay must comply with minimum requirements in order to ensure a fair trial. These requirements include the right of both the Trial and Appeals Chambers to view, retain and study the material in question.' I am not sure that this is enough. Can it really be fair for trial judges to see hundreds of documents that are clearly relevant to the criminal responsibility of the accused without the accused also having access to this material? Obviously, the material may include both exculpatory and incriminating information, and it cannot be right that judges see incriminating information without the defense having an opportunity to reply to it.

Researcher Appointments

Catholic University of Leuven has two junior researcher positions open in the field of human rights: http://www.mediafire.com/?mmygtgcmujc; http://www.mediafire.com/?d3ojkxg9a4i.

The Next High Commissioner for Human Rights?

Louise Arbour steps down in a few days as United Nations High Commissioner for Human Rights. Her successor has yet to be named. One report suggests that the Secretary-General, who makes the appointment, will wait until the Durban 2 conference is out of the way, because of its potential to damage the new High Commissioner.
A few days ago, Human Rights Tribune (http://www.humanrights-geneva.info/+Arbour-successor-list-narrowed,1195+) reported ‘sources’ in Geneva saying ‘the panel named by UN Secretary General Ban Ki-Moon to audition candidates to succeed Louise Arbour as High Commissioner for Human Rights, has locked up its list. There are four names on the list: Louis Alfonso de Alba of Mexico, the former President of the Human Rights Council and Mexico’s Ambassador in Geneva; Navanethem Pillay of South Africa, currently a judge at the ICC (International Criminal Court) and a former defense attorney for political prisoners during apartheid; Francis Deng of Sudan, currently a UN special advisor for the prevention of genocide and José Ramos Horta, a Nobel Peace Prize winner and President of East Timor. The first two are said to be the favorites. If that is the case, I would say that Judge Pillay would have a better chance, if only because there has never been a High Commissioner for Africa or Asia, and there have been two each from Latin America and 'the north'.
And in the meantime, the Toronto Star has run a story saying that Louise Arbour is rumoured to be a candidate for the Liberal Party in the next Canadian election (http://www.thestar.com/News/Canada/article/445150).

Rape as a Weapon of War

Yesterday, the United Nations Security Council adopted a resolution on the subject of rape as a weapon of war. It considerers the destabilising effect sexual violence can have on armed conflict situations and its potential consequences for the restoration of international peace and security. The Council says that ‘effective steps to prevent and respond to acts of sexual violence can significantly contribute to the maintenance of international peace and security’: http://daccessdds.un.org/doc/UNDOC/GEN/N08/391/44/PDF/N0839144.pdf?OpenElement. Ireland issued a statement for the debate: http://www.mediafire.com/?mydfzyittte. For a BBC story with some NGO reactions, see: http://news.bbc.co.uk/2/hi/americas/7464462.stm.
Thanks to Niamh Hayes for this.

What if Moreno-Ocampo Indicts Bashir?

In his recent report to the Security Council, International Criminal Court Prosecutor Moreno-Ocampo used language suggesting that his Darfur-related investigations reach the highest levels of the Sudanese government. Alex de Waal runs a blog called 'Making Sense of Darfur' that asks the question: 'What if Moreno-Ocampo Indicts Bashir?': http://www.ssrc.org/blogs/darfur/.

Another Transfer to Rwanda Denied by International Tribunal

A third decision, in Prosecutor v. Hategekimana, adds to a growing body of case law on transfer of international prosecutions to national courts of Rwanda: http://www.mediafire.com/?tgtw1ytxn3t. Two earlier decisions have been posted on this blog over the past two weeks. The latest decision is by a different trial chamber, and raises one argument that was not even considered by the other trial chambers, namely whether Rwandan law is adequate to prosecute on the basis of 'command responsibility'. All three decisions are interesting, and show considerable variation in approach of the judges. It is a bit frightening, really. One would hope that the law would be clear and stable enough that if the same question based on the same facts were asked to different judges of a tribunal, as a general rule one would get the same result. But so far, three different trial chambers composed of three judges have ruled on transfer cases, and the approaches vary considerably. Is it really a good enough answer to say that these things will get sorted out by the Appeals Chamber?

Stay of Proceedings Ordered by International Criminal Court Trial Chamber in Lubanga Case

A Trial Chamber of the International Criminal Court has just ordered a stay of proceedings in the case involving Thomas Lubanga, who is charged with enlistment of child soldiers in the Democratic Republic of Congo: http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1401-ENG.pdf. The judges faulted the Office of te Prosecutor for failure to disclose exculpatory material to the defence. The Prosecutor had made agreements with the United Nations to obtain documents under condition that they would not be disclosed, and these included materials that might support an acquittal for Lubanga. The fundamental right to a fair trial has been breached, the judges conclude, and for this reason the highly exceptional measure of a stay of proceedings is ordered.
There is not provision in the Rome Statute for a stay of proceedings, and an earlier decision of the Appeals Chamber has held that this is not an available remedy. But article 67 ensures the right to a fair trial. An alternative remedy would be to disclose the material to the defence and proceed with the trial. But in so doing, the confidentiality agreeement with the United Nations would be breached.
This is the latest serious problem to afflict the Court as it struggles to become the functioning institution that so amny of us have campaigned for over the years. Already, the Lubanga case has taken an exceptionally long time to come to trial. It was always doubtful whether it belonged in The Hague at all, anyway, because Lubanga was already in custody in Congo awaiting charges on genocide and crimes against humanity. A Pre-Trial Chamber of the Tribunal authorised that Lubanga be prosecuted by the International Criminal Court because he was not charged in the national jurisdiction with enlistment of child soldiers. This always seemed to me like a distortion of the principle of complementarity, whose objective is to encourage national justice systems to assume their responsibilities. In trying Lubanga for genocide and crimes against humanity, I think that Congo was probably living up to its obligations to ensure that there would be no impunity. But the Court couldn't resist snatching him, as its first target. Now, it seems to be paying the price. It all looks rather like a Greek tragedy, with the Gods ensuring that the Court pay for the tragic flaw that characterised its first case.
Thanks to Deirdre Montgomery for sending this to me so quickly.

Rwanda Prosecuting four Army Officers for Crimes Against Hutu

Another important development in accountability for atrocities has been taken with the arrest yesterday by Rwandan authorities of four army officers charged with the deaths of Hutu clergymen during the 1994 genocide. The officers were associated with the Rwandese Patriotic Army, which overthrew the genocidal regime and installed the current regime. For many years there have been calls for these so-called 'flipside' prosecutions, and charges that unless atrocities committed by both sides were prosecuted, Rwanda would not properly come to terms with its past.
When the Security Council directed the International Criminal Tribunal for Rwanda to complete its work, it referred specifically to the importance of investigation of the allegations of RPF crimes, generally believed to have been revenge or reprisal killings related to the aftermath of genocide. The Prosecutor of the International Tribunal has regularly indicated that investigations were ongoing. Last week, in his report to the Security Council (http://daccessdds.un.org/doc/UNDOC/PRO/N08/365/38/PDF/N0836538.pdf?OpenElement) he mentioned the pledge by Rwanda to proceed with the four cases. He said: 'As the Council knows, Rwanda shares concurrent jurisdiction with the ICTR over such offences. I have therefore decided to hold in abeyance further action on my part, on the clear that any such prosecutions in and by Rwanda should be effective, expeditious, fair and open to the public. My Office will also monitor those proceedings. The prosecutions in Rwanda will of course be without prejudice to the primacy of the ICTR’s jurisdiction over those crimes. I hope that the will be conducted by Rwanda in a manner that will effectively contribute to reconciliation in that country.'
This is further evidence of the confidence of the Prosecutor in the Rwandan justice system. It will be a good test for Rwanda, a chance to show the world that it is up to this difficult task.
Human rights NGOs have called for prosecution of the RPF cases. Last November, Amnesty International gave the failure of the Rwandan national justice system to deal with these cases as the first reason justifying its opposition to extradition of suspects from the United Kingdom to Rwanda so that they could stand trial for genocide (http://www.amnesty.org/en/library/asset/AFR47/013/2007/en/dom-AFR470132007en.pdf).
Personally, while I am of the view that all perpetrators of atrocities should be brought to justice, I would be concerned if this contributed to a revisionist narrative of the events of 1994 by which both sides are deemed to be morally equivalent. In the second world war, war crimes and other atrocities were committed by the British, the Americans, the Soviets and their allies, but these were not prosecuted at Nuremberg, nor should they have been. International prosecution, in particular, has to focus on the worst offenders, 'those who bear the greatest responsibility', and that necessarily means a selection of cases guided by what are essentially political criteria. Like the crimes of the Nazis, those of the Hutu extremists in 1994 deserve a special stigma. This is why we reserve the term genocide, 'the crime of crimes', to describe them.

First Trial at International Criminal Court Postponed Yet Again

The trial of Thomas Lubanga was to be the first at the International Criminal Court. Scheduled to start later this month, some weeks ago, rumours started circulating that it would be further delayed. Presiding judge Fulford announced today that it is postponed indefinitely. See this account from the International Herald Tribune: http://www.iht.com/articles/ap/2008/06/11/europe/EU-GEN-International-Court-Congo.php. No reason was given. Judge Fulford said that a full explanation will be given in the coming days.
It is a big disappointment, although we will have to wait for the Court's ruling before making informed comment. Lubanga was brought into custoday nearly two and a half years ago. Charges against him were confirmed at the end of January 2007.