International Criminal Court Issues Important Ruling on Substantive Criminal Law

Almost all of the decisions of the International Criminal Court issued to date have concerned procedural matters. On 30 September, a Pre-Trial Chamber of the Court released its decision confirming charges against Germain Katanga and Mathieu Ngudjulo Chui. The decision contains extensive discussion about the scope of specific war crimes and crimes against humanity, although there is nothing terribly earthshaking here. Perhaps more significant is the endorsement of the theory of ‘co-perpetration’ and, at least implicitly, the rejection of the ‘joint criminal enterprise’ theory of liability so cherished by judges at the International Criminal Tribunal for the former Yugoslavia. See: http://www.icc-cpi.int/library/cases/ICC-01-04-01-07-717-ENG.pdf. The decision is peppered with references to (mainly) German writers on substantive criminal law. And there is an interesting dissent, by Judge Usacka.

Banned books

Today’s Guardian has a very interesting quiz about banned books: http://www.guardian.co.uk/books/quiz/2008/sep/26/banned.books.quiz.
Visitors to the Irish Centre for Human Rights know of the bookshelf on the first floor landing that is reserved for ‘banned books’. We are constantly adding to the collection although sometimes it is because the books ‘disappear’, which may be a form of censorship. One particularly controversial book is Mein Kampf, which is of course banned in Germany. When I put it on the shelf it mysteriously vanishes. I know that some of our German students have found it particularly offensive. But how can we ban a book from our shelf of banned books?
Another book that disappeared is The Joy of Sex. A visiting professor from the United States gave that one to us. I suspect that whoever took it is having more fun than the one who swiped the Hitler book.
The books are there to be borrowed and read, but please bring them back. By the way, we welcome gifts for our collection.
Thanks to Michael Kearney.

More Charges About Due Process Violations at the Saddam Hussein Trial

The New York Times carries a story on international criminal lawyers who were involved in the Saddam Hussein trial, and who are now speaking out about the procedural abuses that characterised it: http://www.nytimes.com/2008/09/25/world/middleeast/25trial.html.
Thanks to William Hartzog.

New Indictment Against Radovan Karadžić

An amended indictment has been filed against Radovan Karadžić before the International Criminal Tribunal for the former Yugoslavia: http://www.un.org/icty/indictment/english/kar-mai080922e.pdf. Both Karadžić himself and Presiding Judge Iain Bonomy have grumbled about the fact that the Office of the Prosecutor, which has been calling for the arrest of Karadžić for more than a decade, wasn’t ready with an amended indictment when the defendant was brought into custody.
Some press reports have described the amended indictment as a ‘second genocide charge filed against Karadzic’ (see, e.g., Associated Press: http://ap.google.com/article/ALeqM5gfog99sG-4NVtaT3GNxSpZ0V33KAD93CHBL01), but on closer scrutiny this does not seem to be the case.
The earlier indictment charged Karadžić with genocide between 1 July 1991 and 31 December 1992 in eighteen municipalities. The amended indictment charges him with genocide between 31 March 1992 and 31 December 1992 in ten municipalities.
The earlier indictment also charged him with genocide at Srebrenica, over a period from March 1995 to November 1995. The amended indictment charges him with genocide ‘between a few days before 11 July 1995 and November 1995’.
This looks to me like a reduction in the genocide charges, not an expansion of them.
The Prosecutor would have been wise to drop the genocide charges for 1991 and 1992 altogether. Several trials at the Tribunal alleging genocide during this period have resulted in acquittals. Moreover, the International Court of Justice dismissed claims of genocide filed by Bosnia and Herzegovina against Serbia covering much of this period. The Prosecutor is stubbornly clinging to the theory of a genocide in Bosnia and Herzegovina in 1992, but based on all previous judicial decisions this is likely to fail. It will only lengthen this important trial at a time when the Court is trying to streamline its work and conclude its activities.
As for the Srebrenica charge, which really concerns a few days in July 1995, the case law is much more favourable. In my own opinion, however, even the theory of genocide at Srebrenica is a tenuous one. The better charge would be the crime against humanity of extermination. Either the war in Bosnia was genocidal or it was not. But a vision whereby most of the war was not genocidal, but where a genocidal massacre was essentially improvised over a few days in the final months of the conflict doesn't make a lot of sense. Yet that is what emerges from the case law, which seems to be stuck on the precedent created by a 2001 ruling of a Trial Chamber (Krstić Trial Judgment). Ever since, the judgments have been clawing this back, as if the judges have all realised that the charge was tenuous and difficult to sustain.

Human Right to Development, by Daniel Aguirre

The Human Right to Development in a Globalised World, by Dr. Daniel Aguirre, has just been published by Ashgate: http://www.ashgate.com/default.aspx?page=637&calcTitle=1&title_id=10766&edition_id=11518. Danny was one of our first LLM students at the Irish Centre for Human Rights, in the 2000 cohort, and he went on to complete his doctorate. The thesis is the basis of his new book. He is now doing exciting and important work in the area of human rights training, dealing with Burmese refugees in Thailand.

Shane Darcy Receives Young Lawyer Award

Shane Darcy, who recently joined the faculty of the Irish Centre for Human Rights as a lecturer, has been awarded the John Kable QC Memorial Young Lawyer Award, in recognition of outstanding contributions to the goals and objectives of the International Society for the Reform of Criminal Law by a criminal justice professional in the first ten years of practice. Dr Darcy earned his LLM and PhD degrees for studies at the Irish Centre for Human Rights, and he received a doctoral fellowship from the Irish Research Council for the Humanities and Social Sciences. His thesis, entitled Collective Responsibility in International Law, was published in 2006 by Transnational Publishers. He served the International Society for the Reform of Criminal Law as managing editor of its journal, Criminal Law Forum, for four years. Shane Darcy was presented with the award at a ceremony held today at the Irish Centre for Human Rights.

European Court of Justice Strikes Down Anti-Terrorist Measures

A recent judgment of the European Court of Justice, Case T‑315/01 Kadi v Council and Commission and Case T‑306/01 Yusuf and Al Barakaat International Foundation v Council and Commission (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN:HTML), cancels a European Regulation (881/2002 of 27 May 2002) imposing measures directed against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban. The European Union was implementing a United Nations Security Council Resolution. According to the Court, European Union institutions violated the fundamental rights of the two applicants when they decided to freeze the assets of a Saudi businessman ('Kadi') and a Sweden-based charity ('Al Barakaat') suspected of funding al-Qaeda terror groups.
The European Court of Justice was sitting in appeal of a decision by the Court of First Instance, which had made a very controversial finding that the Regulation was invalid because it conflicted with peremptory norms of international law (jus cogens). The European Court of Justice said the Regulation was invalid because it conflicted with the constitutional principles of the European Community Treaty, and in particular the requirement that all Community acts respect fundamental rights.
The earlier judgment was critiqued by our colleague Dr Laurent Pech in a casenote written in 2006 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=915386)., and his approach is now endorsed by the European Court of Justice.
Earlier this year, I wrote on this blog about the violations of human rights that take place in the name of the 'war on terror'. Some of these measures, such as asset freezes and travel bans, are actually required by Security Council Resolutions. They violate fundamental principles of human rights and the rule of law. The European Court of Justice ruling is a step towards fixing this unacceptable situation.
Thanks to Laurent Pech.

International Day of Peace

September 21 is the International Day of Peace. It was so proclaimed by the United Nations General Assembly in Resolution 36/67, which:

Declares that the International Day of Peace shall henceforth be observed as a day of global ceasefire and non-violence, an invitation to all nations and people to honour a cessation of hostilities for the duration of the Day...“Invites all Member States, organizations of the United Nations system, and non-governmental organizations and individuals to commemorate, in an appropriate manner, the International Day of Peace, including through education and public awareness, and to cooperate with the United Nations in the establishment of the global ceasefire.

Secretary-General Ban Ki Moon made the link with human rights, and the sixtieth anniversary of the Universal Declaration of Human Rights. 'We know that human rights are essential to peace', he said in his message to mark the Day. 'Yet too many people around the world still have their rights violated – especially during and after armed conflict. That is why we must ensure that the rights in the Declaration are a living reality – that they are known, understood and enjoyed by everyone, everywhere.'

On Friday this week, I'll be participating in an international conference on the crime of aggression and the International Criminal Court, which is currently working on making aggression a crime that is punishable within its jurisdiction: http://law.case.edu/lectures/index.asp?lec_id=172.

It is astonishing that the big human rights NGOs have decided to stand back from the debate. Amnesty International has said it does not take a position on inclusion of aggression within the jurisdiction of the Court because this is not part of its mandate, which it derives from the Universal Declaration of Human Rights (AI Index: IOR 40/015/2007 p. 13, available at: http://www.amnesty.org/en/library/info/IOR40/015/2007/en). Human Rights Watch says it does not engage with issues about the lawfulness of armed conflict, and is only concerned with behaviour within the conflict (http://www.hrw.org/backgrounder/ij/asp1107/5.htm#_Toc182808674). I think they are dead wrong on this.

I would have put the matter even more strongly than Ban Ki Moon. Not only is peace necessary for the protection of human rights, there is a human right to peace. And it is in the Universal Declaration of Human Rights, which refers to 'peace' in the first sentence of the preamble, and goes on - citing Roosevelt - to declare that 'freedom from fear' has been proclaimeded as the highest aspiration of the common people. Of course, the Universal Declaration also fits within the framework of United Nations law, which outlaws the resort to force (Charter of the United Nations, art. 2(4)). Article 20 of the International Covenant on Civil and Political Rights requires States to prohibit propaganda for war.

Declining Influence of US Supreme Court

An interesting recent article in the New York Times discusses the declining international influence of the United States Supreme Court, especially in the area of human rights:
http://www.nytimes.com/2008/09/18/us/18legal.html?_r=3&adxnnl=1&oref=slogin&partner=rssuserland&emc=rss&pagewanted=all&adxnnlx=1221735851-WXzjuoA3piheFTKHDEbZnA&oref=slogin
Thanks to Rick Lines.

Europe Less Successful in United Nations Human Rights Forums

A report by the European Council of Foreign Relations review the waning influence of Europe on human rights issues within the United Nations: http://ecfr.3cdn.net/3a4f39da1b34463d16_tom6b928f.pdf.
There are lots of graphs and charts. Personally, I am not so convinced. Last December, Europe succeeded with its death penalty resolution, and built a broad coalition. There are many other successful initiatives, like new treaties and declarations. Of course, all of these involve broad consensus with the rest of the world. But what else should we expect? For European initiatives to succeed in the United Nations, they have to resonate elsewhere.
Thanks to Niamh Hayes.