Annual Death Penalty Survey from Amnesty International

Amnesty International today released its annual survey on use of the death penalty. According to Amnesty International, although 58 countries retained the death penalty in 2009, most did not use it. Only eighteen countries were known to have carried out executions, killing a total of 714. More than 500 of these are attributed to Iraq, Saudi Arabia and the United States. The United States was the only country in the western hemisphere to conduct executions. In sub-Saharan Africa, only Sudan and Botswana imposed the death penalty. Two more countries, Togo and Burundi, abolished the death penalty during 2009.

The International Criminal Court on a Wobbly Bicycle?

Earlier this week, a short resumed session of the Assembly of States Parties of the International Criminal Court took place in New York City. Its function was to make final preparations for the Review Conference, to be held in Kampala over the first two weeks of June. A report was issued, but it does not yet seem to be on the website.
I didn’t attend the meeting in New York city, but have spent the last couple of days at the Annual Meeting of the American Society of International Law, where it seems many of the players at the Assembly of States Parties decamped to once their session was over.
On Thursday night here in Washington, the Legal Adviser to the Department of States, Harold Koh, gave a major speech that included important comments on the position of the United States with regard to the agenda of the Review Conference. In a memorable metaphor, Harold described the Court as a 'wobbly bicycle'.
Then, this morning there was a panel featuring Christian Weneweser, who is the president of the Assembly of States Parties, Béatrice le Frapper, who is an aide to Prosecutor Moreno-Ocampo, Ambassador Steve Rapp, war crimes ambassador for the United States, and Bill Pace of the Coalition for the International Criminal Court.
The plan for the Review Conference is to devote the first four days to ‘stocktaking’, which what is called a ‘high level segment’ involving speeches by ministers, heads of State and the like. There seems to be some genuine effort to make the ‘stocktaking’ more than a mere exercise in public relations for the Court. Nevertheless, there is considerable resistance to any serious attempt to come to terms with the problems that have troubled the Court over its first seven or eight years of operation. The spokesperson for the Prosecutor, for example, used terms like ‘celebration’. But perhaps there should be more self-criticism and introspection, given that the Court, and the Prosecutor, have not met the targets they have themselves set in terms of holding and completing trials.
The remaining days of the Conference will address the various amendments that are proposed. The first issue – the only one that must necessarily be considered – is article 124, labeled a ‘transitional provision’. The trend seems to be to simply leave it alone. The second involves changes to the war crimes provisions dealing with prohibited weapons, so as to make them applicable to non-international armed conflict. This is not as important as it might seem, because it mainly covers rather archaic weapons, such as hollow bullets and poisoned spears, which are of little importance in modern-day armed conflict.
And then there is the big issue, aggression. My sense is that it is quite unlikely at this point that the Court will be able to prosecute the crime of aggression anytime soon. There are two clusters of issues, the definition of the crime itself and the modalities of its prosecution by the Court. The former is not so difficult, and some delegations seem to be pushing for the idea of adopting a definition and then leaving the other issue for the future. That would be putting a brave face on failure, I think. Already, in 1998, there was such a half-baked solution in the reference to aggression in article 5(1) but in such a way as to prevent prosecution of the crime. The proposal to adopt a definition and nothing more is only a more sophisticated version of the gimmick employed in 1998.
The hard part is the modalities of prosecution. This is sometimes called the ‘jurisdictional issue’ but it is really about triggering the jurisdiction of the Court. After a decade of work by the Special Working Group, a menu of proposals emerged. They can be distinguished by the varying degrees of warmth or hostility to the Security Council. Hoping to resolve this at Kampala, some enthusiasts for the crime of aggression seem willing to compromise on the most Security Council-friendly approach. This would be a big mistake. The Court’s success has been due to its ability to take its distance from the Security Council. At Rome, in 1998, many States would have been happy to make the separation even clearer, by simply omitting the provisions that became articles 13 and 16. Finally, there were compromises. But adopting provisions on aggression that are too deferential to the Security Council will tilt the Court in a direction that many States will find unpalatable.
After being largely absent from the debate for many years, the United States is returning at strength, and plans to be a big player in the negotiations at Kampala. Although Harold Koh and Steve Rapp express the positions with courtesy and in a manner that communicates their support for and commitment to the Court, what emerges from their remarks is the view of the United States that it would be desirable to put all of the aggression business on the shelf. Return to it sometime in the future, they are saying. On Thursday, Harold Koh described the Court as ‘a wobbly bicycle that is finally starting to move forward’, and asked whether the crime of aggression might be ‘frankly more weight than the bicycle can bear’.
It’s a bit of Rome redux. Twelve years ago, the United States pressured and cajoled and threatened,, on a range of issues. Did it finally get its way? Well, the United States voted against the Rome Statute, yet the text was covered with its fingerprints. Kampala may be different, because the debate is focused on a single issue. Battle lines are being drawn. After years of silence, the United States has decided to stake out its positions. Over the next two months we shall see whether it is more or less influential than it was in 1998.

Summer School on Cinema, Advocacy and Human Rights

For several years I have been involved in a summer school on cinema and human rights, organized by the European Inter-University Institute in Venice. Last year the Institute decided to drop the programme, and we have picked it up in Galway. The Irish Centre for Human Rights and the Huston Film School of the National University of Ireland, Galway, will offer a one-week programme on cinema and human rights in late August 2010. For more information.

Unsigning the Covenant

On Monday of this week, I ran an item on this blog about the date of signature of the International Covenant on Civil and Political Rights by China. Yesterday, the United Nations changed the date of signature of China on its treaty database. The entry now reads 5 October 1998, which is the date of signature by the People’s Republic of China. There is a footnote indicating: ‘Signed on behalf of the Republic of China on 5 October 1967.’ I'm glad to see that they are reading the blog!
Many of us laughed in 2002 when the Bush administration (and Israel) purported to ‘unsign’ the Rome Statute. But that seems to be what the Secretary-General of the United Nations has done with respect to the ‘Republic of China’.
Withouit wanting to be overly technical, one could argue that the People's Republic of China was bound as signatory to observe certain obligations (art. 18 of the Vienna Convention on the Law of Treaties) because when it took the Chinese seat in the United Nations it in a sense inherited the rights and obligations associated with China, like membership in the Security Council, but also duties as a signatory of the Covenant. The Secretary-General now says China wasn't a signatory of the Covenant from 1971, when it joined the United Nations, until 1998. In effect, then, China's human rights obligations have been reduced. I think this is inconsistent with the general view that a State that succeeds to another is bound by the existing human rights obligations. Admittedly, the China case is not a classic one of State succession. Still, we shouldn't be reducing the application of the Covenant to a State, as the Secretary-General seems to have done. Can a State escape from its obligations by 'unsigning' a treaty and then resigning it at a later date?

Civil Rights in the United States: The Promise

The New Yorker has a very moving, and informative, presentation on its website about the history of the civil rights movement in the United States. It has some beautiful photographs of many of the participants, some of them taken at the time, some of them very recent. There are also interviews with many of them. I think my favourite is of the 'Little Rock nine', who as young teenagers registered for Little Rock Central High School in September 1957. They were turned away by the Arkansas National Guard, and only got into the school when President Eisenhower sent federal troops to escort them. I suppose they would have been 13 or 14 years old at the time. And there they are, all nine of them, now pushing seventy, one has a walker, elegantly dressed, proud and dignified as they hold hands in front of their old high school. It's the photo that is at the top in the centre on the web page. A few of them are interviewed briefly. See The New Yorker.

Taiwan and the International Covenant on Civil and Political Rights

In an intriguing development in the realm of international human rights treaties, the Republic of China (that is, Taiwan), attempted to deposit instruments of ratification of the International Covenant on Civil and Political Rights last year. This followed a vote in the Taiwan legislature, on 31 March 2009, by which the two Covenants were ‘ratified’.
The ratification was refused by the depositary, which is the United Nations Secretary-General. In a letter dated 15 June 2009, the UN Under Secretary-General for Legal Affairs, Patricia O’Brien, wrote that the Secretary-General ‘was in no position to accept Taiwan’s ratification because of UN Resolution 2758, which recognizes the People’s Republic of China as the sole and legitimate representative of China’.
Here’s the background. On 5 October1967, the Republic of China signed the International Covenant on Civil and Political Rights . At the time, the ‘Republic of China’ (i.e., Taiwan) occupied the Chinese seat at the United Nations. This all changed with Resolution 2758. It recognized the People’s Republic of China as ‘the only legitimate representatives of China to the United Nations’.
Then, in 1998, the People’s Republic of China declared that it had signed the International Covenant on Civil and Political Rights. The treaty website of the United Nations contains the following declaration of the People’s Republic of China: ‘The signature that the Taiwan authorities affixed, by usurping the name of “China”, to the [Convention] on 5 October 1967, is illegal and null and void.’ But the website of the United Nations continues to list 1967, not 1998, as the date of signature of the Covenant by China.
Here is the text of article 48 of the Covenant:

Article 48

1. The present Covenant is open for signature by any
State Member of the United Nations or member of any of its specialized agencies,
by any State Party to the Statute of the International Court of Justice, and by
any other State which has been invited by the General Assembly of the United
Nations to become a party to the present Covenant.
2. The present Covenant is
subject to ratification. Instruments of ratification shall be deposited with the
Secretary-General of the United Nations.

The problem is that if the People’s Republic of China does not in effect acknowledge the 1967 signature, then the Republic of China remains a signatory to the Covenant and is therefore entitled to ratify it. There is no requirement that a ratifying State be a member of the United Nations. Any signatory State can ratify. General Assembly Resolution 2758 concerns the place of China with respect to the United Nations, and does not seem to contemplate treaties that have an autonomous existence. Isn’t the issue whether the Republic of China was a Member State of the United Nations in 1967, a fact that is confirmed by Resolution 2758? And if that is the case, is it not a State capable of ratifying the Covenant, even if it is no longer a Member State of the United Nations, provided it has legally signed the Covenant.
Is Taiwan a State at all? The question as to what is a State has been debated elsewhere on this blog in recent months with respect to the declaration by the ‘State’ of Palestine pursuant to article 12(3) of the Rome Statute.

Commentary on the Rome Statute

Oxford University Press have just published The International Criminal Court: A Commentary on the Rome Statute, of which I am the author.
I apologise for what some may feel is a shameless bit of self-promotion, but I promise not to do so often on this blog. The book is about 1,350 pages long, and consists of an article by article review of the Rome Statute. It takes into account the case law of the Court up to 1 July 2009, as well as academic writing on the subject in English, French, German, Spanish and Italian. I've reviewed the written record of the drafting of the Statute, avoiding the temptation of many writers to claim 'this is what we meant' and instead basing conclusions on objective, verifiable sources. There is a full subject index, as well as tables of cases and instruments that are cited.
I've been studying the Court since the early 1990s, when the International Law Commission prepared the draft statute that formed the basis of further negotiations under the aegis of the United Nations General Assembly. I attended several of the Preparatory Committee sessions, as well as the Rome Conference. I'm now looking forward to Kampala, in June, where the first Review Conference of the Statute will be held. I've also written many articles on the Court, as well as the Introduction to the International Criminal Court, which will appear with Cambridge in a fourth edition early next year. It has been translated into Chinese, Turkish and Farsi.
The Commentary joins two other similar works, the first published under the editorship of Antonio Cassese, in 2002, and the second under the editorship of Otto Triffterer, in 2008. I have contributions in both of those volumes too.
It is my hope that the book will assist the Court, which will soon move into its second decade of existence. It is an expensive book, I'm afraid, at GBP 150 or $US 240 (the two other commentaries are double or more that price), and that may unfortunately put it out of reach of many people . The book will be on sale at the upcoming American Society of International Law conference where, I believe, it will be available at a significant discount. It should quickly find its way into the major reference libraries. Just please don't make too many photocopies!

Data on UN Special Procedures

The Office of the High Commissioner for Human Rights has issued a very informative and useful booklet providing detailed information on the special procedures of the Human Rights Council

Responsibility to Protect

'The Responsibility to Protect: From Principle to Practice' is the title of a conference to be held in Scandic Linköping Väst, Sweden from 8-12 June 2010, hosted by the University of Amsterdam. Speakers include Francis Deng, Edward Luck, Ambassador Heraldo Munoz, Nicolas Michel, Larry May, Daphna Shraga and Paola Gaeta
The final programme is now available.

Rights & Democracy

There is a campagin to support Rights and Democracy in its struggle for independence (and survival) from the Canadian government. See the website to see how you can support this important human rights institution.
Thanks to Michael Kapellas.