Right to a Name Protected by Right to Privacy

The UN Human Rights Committee has concluded that  language legislation imposing a 'Latvian-sounding name and surname' on all citizens violated the right to private life. Raihman  v. Latvia, and the Views were agreed recently although they have yet to be issued formally. I have received a copy of them, but each page is in an individual file and it is complicated to post on the blog. If someone cannot wait, I will be happy to send them all of this by e-mail.
Here is a comment from Prof. Fernand de Varennes on the recent ruling:

I am very pleased - and indeed relieved - with this conclusion for a number of reasons. On a personal level, I have to admit that I was instrumental in “inspiring” the complainant, Mr Raihman, to submit his case to the UN Committee almost eight years ago after a speech I made in Latvia on language rights. Mr Raihman became a citizen at around 40 years old and was then forced to have a name and surname in Latvian that changed his original Russian and Jewish name and surname. He started legal proceedings and eventually lodged a communication to the UN Human Rights Committee with the help of the Latvian Human Rights Centre.

From a legal point of view, this case clarifies the issue of whether a name/surname can be protected in its linguistic form under the right to private life. Previously the European Court of Human Rights had actually denied that similar legislation – though very different facts - amounted to a violation of the right to private life in the cases of Mentzen/Mencena v. Latvia and Kuhareca v. Latvia.

As surprising as this may sound, the European Court’s comments seemed at one point to suggest that because others have a right to use the official language of the country, it was appropriate that all citizens be given – and forced to use for official purposes – a “Latvianised” name/surname.  Despite a number of European documents and treaties indicating that minorities have the right to their own name and surname in their own language, the European Court never made reference to such standards, though in a sense the other cases it had to consider were not the strongest and didn’t raise the kind of facts which were probably needed.

For all the talk of European democracies being respectful of the identity and private life of individuals, some other comments of the European Court seemed not to reflect this, stating at various points that it should be left to states such as Latvia (through the doctrine of ‘margin of appreciation’) to deal with the use of an official language in relation to the name/surname of individuals. One would have thought the lessons from history where oppressive governments sought to extinguish the presence of ‘others’ by seeking to erase their names/surnames in other languages from the public sphere was long gone, but the European Court did not seem to completely reject such an option in the Latvian cases, though to be fair it did not exactly condone such measures either.

I worked from the very beginning with Mr Raihman and his team to develop the legal arguments and to illustrate the consequences of the restrictions on the use of Mr Raihman’s Russian first name and Jewish/Yiddish family name. The UN Committee’s views in Raihman v. Latvia are not published yet, but they have accepted the legal arguments which we developed, though unfortunately did not comment specifically on the arguments around the discriminatory impact of the difference of treatment on the ground of language. The communication will be released digitally in the near future, but I can forward the communication in jpeg format to anyone interested.

I've copied here the key page of the decision, with the reasoning of the Committee

More Hyperbole from the Prosecutor

Last week, the Prosecutor of the International Criminal Court made his bi-annual report to the Security Council. He spoke of ‘an ongoing genocide by rape and fear’. According to the Press Release issued by the United Nations: ‘”Rape and fear are silent weapons, below the radar of the peacekeeping forces”, he said, pointing out that sexual violence continued, generally committed by men in military uniform, according to the Secretary-General’s report of 14 July.’

I’m not sure what report is being referred to. Perhaps a reader of the blog can assist. There is a report of the Secretary-General from 14 July2009 on Sudan, but it doesn’t seem to speak of rape or sexual violence. And it seems odd that he would be referring to a report from 209. This year there was a report dated 19 July (S/2010/388), but it too doesn’t seem relevant.

Here is the account from Agence France Press:

‘The situation in Darfur is not just a humanitarian crisis, it is a systematic attack against the civilian population. The situation in Darfur is a genocide, it is an ongoing genocide’, Ocampo said. The prosecutor said hundreds more civilians have been killed and thousands displaced in the western Sudan region in the last six months. The people of Darfur ‘are suffering a subtle form of genocide -- genocide of rape and fear. Rape and fear are a silent weapon, below the radar of the peacekeepers, unstoppable for the humanitarian organizations, and this continues’, Ocampo said.

Is he speaking about the same Darfur that we read about in United Nations reports? The latest report of the Secretary-General on Sudan, is dated 14 October 2010 (S/2010/528). It says nothing about rape, sexual violence or genocide. It has three paragraphs about Darfur, entitled ‘Darfur Peace Process’. One looks in vain for the dire situation that the Prosecutor spoke about in the Security Council. The earlier report, of 19 July 2010, is similar in tone. It does mention the word genocide, but only because it notes the issuance of the arrest warrant by the Pre-Trial Chamber of the International Criminal Court.

Or, see paragraph 49 of the latest report from the Independent expert on the situation of human rights in the Sudan, which is dated 26 May 2010:

Since early 2009, the joint African Union-United Nations chief mediator for Darfur has been convening talks in Doha, between the Government of the Sudan and Darfur rebel groups in an effort to reach a political settlement for the Darfur conflict. Some of the rebel movements, including the Abdul Wahid (AW) faction of the Sudan Liberation Army (SLA) have refused to participate in the peace process, and the African Union-United Nations mediation team has been making substantive efforts to unify a number of splintered rebel factions in preparation for new negotiations. As a result of the lack of readiness of the armed movements to engage fully in the process and their lack of capacity to represent the interests of all Darfurians, the mediation has also focused on enhancing civil society participation in the process. In November 2009, the mediation organized a series of meetings in Doha between the armed movements and Darfurian civil society in an effort to better represent the voices of all Darfurians in the peace process…’ 

This doesn’t sound like genocide.

At paragraph 51, the Independent expert says ‘the Government has been actively promoting an agenda of permanent return… Some displaced persons have complained about being subjected to undue pressure from various armed factions and government officials to return to insecure areas. Some also reported that their lands have been occupied by mostly Arab nomads and militia groups, which enjoy Government support and protection.

Paragraph 60 and 61 speak directly to the issue of rape and other forms of sexual violence.

60. In spite of the lack of reliable data on sexual violence in Darfur, it is generally acknowledged that reported cases have decreased. In 2009, 101 reported cases of sexual violence were recorded by UNAMID (49 in North Darfur, 25 in South Darfur and 27 in West Darfur). The decrease in reported incidents of rape is not necessarily an indication of a decrease in the commission of the crime, but might simply be the result of underreporting, as explained by some stakeholders.

61. In spite of the above-mentioned drawbacks, there were some positive developments in combating gender-based violence, including an increasing awareness among some judicial officers of the seriousness of sexual violence crimes and their effect on the victims. In December 2009, a judge in Zalingei sentenced two military police officers to 10 years of imprisonment each and 100 lashes for the gang rape of a 50 year old woman. The judge stated that he was applying the maximum sentence as a deterrent to other policemen.

At some point in the past, the Prosecutor may have an arguable case for using the word genocide, but surely not today. What purpose is served by speaking about an ‘ongoing genocide’ when manifestly this is not what is happening? Wouldn’t the Prosecutor be wiser to claim that the genocide is no longer ongoing, and then take credit for this, saying it is a consequence of the deterrent effect of his work on behalf of the International Criminal Court?

Racism in Galway Taxi Industry

Racism in the Galway taxi industry is the subject of a report issued Friday by the Irish Centre for Human Rights. It was prepared by Dr Vinodh Jaichand, deputy-director of the Centre, with the assistance of a team of student researchers.
The report is based upon launched an investigation launched in July this year to examine racially based tensions in the taxi industry within the city. Many Galway taxi drivers of African origin were present Friday at the launch. the report describes various dimensions of racism in the taxi industry, including attempts to impose various qualifications that would have the consequence of excluding African drivers from the profession. Research indicated that some companies have no African drivers. Moreover, the elimination of the 'cab rank rule' has had as a consequence that clients are not required to take the first cab. Some clients refuse to take cabs with African drivers. Sometimes white drivers leave the dome lights on at night inside their taxis so that clients can identify them.
The issue of racism in the taxi industry is not unique to Galway. Dublin, in particular, is notorious for this, as are many other cities in various parts of the world. Our hope is that various stakeholders address the relevant issues so as to reduce and hopefully remove this blight upon the city.
Hats off to Vinodh and his team for their great work!

Universal Jurisdiction

Eichmann in the dock.

We discussed the issue of universal jurisdiction at our regular seminar for doctoral students at the Irish Centre for Human Rights yesterday evening. There has been a great deal of activity at the political level on the subject in the last few years. Put simply, universal jurisdiction authorizes a state to prosecute crimes that were not committed on its territory or by its nationals, or with some other connection to the state itself. Historically, piracy – a crime committed on the high seas and thus on the territory of no state - was prosecuted using universal jurisdiction. More recently, it has been used for human rights violations or atrocity crimes, the most celebrated examples being the prosecution of Eichmann in the early 1960s and Pinochet in the late 1990s.

To read the international criminal law textbooks, one would have the impression that this is all a straightforward matter, with well-established principles enshrined in customary international law. It is a rather clear and uncontroversial norm of customary international law, according to the study conducted by the International Committee of the Red Cross. In reality, there are essentially no treaty-law provisions that directly address the issue, although universal jurisdiction is said to be implied by provisions in some treaties that require states to try or extradite persons suspected of committing specific crimes who are found on their territory. Recent debates suggest the matter is more complicated.

We do not have a clear ruling on the point from the International Court of Justice. In 2002, the Democratic Republic of the Congo dropped its charge against Belgium based upon an alleged violation of international law resulting from the use of universal jurisdiction. It reduced its case to one founded on a violation of immunities, and was successful. Individually judges penned separate opinions on the issue of universal jurisdiction that suggested that we were far from unanimity. Then, the Republic of the Congo sued France, and it looked as if we would finally have a judgment to resolve the matter. It was due to come before the Court for hearing this month, but a few weeks ago the Republic of the Congo dropped the case.

The African Union seems to have launched the current conversation on the subject with its 2008 ‘Report on the Abuse of Universal Jurisdiction’. African states insisted they were not opposed to the principle, but that they were concerned it was being used by states in the north who targeted states in the south. An expert report on the matter was prepared at the request of the African Union and the European Union.

Then, the African Union raised the matter in the United Nations General Assembly. A resolution was adopted in January of this year  calling upon states to submit information on the subject, and requesting the Secretary-General to prepare a report based on the replies. All of the documents can be found here. 

The responses paint a rather confused picture. It seems clear that some of the states do not even understand the issue. Some states – China and Malaysia, for example – take the position that universal jurisdiction under customary law is only available for the crime of piracy. Others go much further, but there are significant nuances on a range of issues. One of the problems – as the responses confirm – is that there is a paucity of actual practice.

A common theme in the responses was the idea that universal jurisdiction should be exercised cautiously and with discretion. Many states require some form of political control before prosecutions can be launched, usually in the form of authorization by the Minister of Justice or something similar. What is striking is the number of states that say this is necessary in order to prevent ‘politicization’ of the process. This is really quite droll. Do we really ‘depoliticize’ a process by taking its control out of the hands of judicial officials and by requiring a minister to give the green light? What they mean, I think, is that they want to control the politics of the process, so that it can deal with an African tyrant but not a NATO general.

A good example of the hypocrisy of the process can be found in the report of the United States. Washington brags about  being able to use universal jurisdiction, in accordance with the Torture Convention, to prosecute the son of Charles Taylor for atrocities committed in Liberia (although the report notes that it was able to prosecute him otherwise, as a US national). It is silent on the fact that its former president has himself boasted about using torture (‘it save the lives of Americans’) and continues to bask in the glow of impunity.

There is now a draft resolution, adopted by the Sixth Committee of the General Assembly last month following a debate on the subject.  It should be adopted by the plenary General Assembly in the coming days. It calls for the establishment of a working group of the Sixth Committee to undertake a thorough discussion of the scope and application of universal jurisdiction.
Amnesty International published a major report on the subject a few weeks ago.

This is a great subject for further research. The reports from states and the debates in bodies like the Sixth Committee provide a very significant addition to the sources of evidence of custom. It appears as if the real custom is not quite co-terminus with the custom that has been claimed to exist in the academic literature and the NGO materials. Nevertheless, the debate may also provide the opportunity to clarify agreement and move the goalposts on this issue.

I have often said that universal jurisdiction generates more heat than light. For all of the talk about it, few prosecutions have actually succeeded. The deterrent effect seems largely confined to a fear of foreign travel rather than the certainty of prosecution. Even when the threat of prosecution appears somewhat serious, it is usually more of a nuisance than a genuine concern about being put in jail for a long time. Many of the reports describe universal jurisdiction as a component of the struggle against impunity. Perhaps, but it is a small component. International tribunals and truth commissions seem a better investment of scarce resources.

We meet next on 17 January, at 5 PM, when we will discuss WikiLeaks. For starters, there is an interesting article by Simon Chesterman on the subject. We'll be exchanging other materials in the weeks to come.

Vacancies in the Legal Division of the International Committee of the Red Cross.

There are currently several vacancies for legal advisers in the Legal Division of the International Committee of the Red Cross. They are posted on the website.

Three of these vacancies are for a new project to update the commentaries to the Geneva Conventions and Additional Protocols.

Jean-Marie Henckaerts, who has been in charge of the customary law project, will take over the updating of the commentaries, and that means his current position becomes vacant. Click here.

North Korea Under Investigation at the ICC

Shelling of Yeonpyeong Island

Preliminary investigation by the Office of the Prosecutor of the International Criminal Court is underway concerning alleged war crimes committed by North Korean forces in the territory of the Republic of Korea, according to an official press release.

Specifically, the investigation relates to the shelling of Yeonpyeong Island on the 23 November 2010, which resulted in the killing of South Korean marines and civilians and the injury of many others; and the sinking of a South Korean warship, the Cheonan, hit by a torpedo allegedly fired from a North Korean submarine on 26 March 2010, which resulted in the death of 46 persons.

The International Criminal Court may have jurisdiction over these acts, given that South Korea is a State party to the Rome Statute. In accordance with article 12(2), the Court may prosecute war crimes committed on the territory of a State party, even if the perpetrator is not a national of a State party.

This investigation appears to be the first by the Court involving what amounts to international conflict, involving an act perpetrated by soldiers of one state against another.

At the Rome Conference, more than a decade ago, I argued that part of the appeal of the International Criminal Court for States was the potential it provided to address what would amount to acts of aggression committed against them by other States. At a seminar in Tehran, in 1999, I explained that Iran might add a layer of protection against attacks by its enemies (it has a few) by joining the Court.

I hope that States that have not yet joined the Court are paying attention, and will see the benefit of ratifying the Statute.

Of course, the Court will not be able to prosecute aggression as such until 2007. And probably the United States and others would argue that incidents like the North Korean attacks do not amount to a 'manifest violation of the Charter of the United Nations' (see article 8bis(1) of the Rome Statute, as amended by the Kampala Conference). So, this is getting at the problem from another angle, by dealing with the attacks as war crimes. It will be interesting to see how the lawyers in the Office of the Prosecutor deal with such 'crimes' as the sinking of a warship by a torpedo fired from a submarine. At Nuremberg, the judges refused to convict the Nazi admirals for engaging in 'unrestricted submarine warfare', essentially because the Allies were doing the same thing.

Conference on Post-Conflict Justice and 'Local Ownership': Assessing the Social and Legal Impact of the International Criminal Court

The Grotius Centre for International Legal Studies, based at Leiden University - Campus in The Hague, will be hosting a launch conference on 5-6 May 2011 for a research project entitled "Post-Conflict Justice and 'Local Ownership': Assessing the Social and Legal Impact of the International Criminal Court."  The conference will be held in The Hague, with one day taking place at The Peace Palace and the other at Leiden's Hague campus. 
Papers are invited in the following areas: (1) conceptualizing "the local"; (2) social impact of the ICC in the situation-countries to date; (3) legal impact of the ICC (with a particular focus on national-level implementation and complementarity); and (4) methods and methodology for assessing impact.  Abstracts (of no more than 500 words) should be submitted electronically by February 1, 2011 to pcj@cdh.leidenuniv.nl. For the call for papers, click here.

Bizarre Ruling on Non-Retroactivity from the ECOWAS Court

The Court of Justice of the Economic Community of West African States (ECOWAS) issued a rather bizarre ruling a few weeks ago in an application by Hissan Habré, the former dictator of Chad, directed against Senegal. The African Union has supported an effort to prosecute Habré. Senegal has appointed a magistrate to work on the case. Because Senegal was seen to be dragging its heels, Belgium filed an application against Senegal before the International Court of Justice that is now pending.

The recent ECOWAS Court ruling addresses a challenge that prosecuting Habré would violate the rule against non-retroactivity, enshrined in the African Charter and in article 11(2) of the Universal Declaration of Human Rights.

The Court concludes that while it is not prohibited to prosecute Habré for international crimes, even if they were not previously incorporated into national legislation, Senegal would be in violation of the norm against non-retroactivity because ‘international custom’ requires the establishment of ad hoc or special jurisdictions for the prosecution of such crimes. It holds that Senegal would violate international law if it prosecutes Habré for international crimes before its ordinary courts.

I note that this is precisely what Belgium claims Senegal is not doing. Belgium is suing Senegal in The Hague because it is not prosecuting Habré before its national courts.

From whence comes this ‘international custom’ cited by the Court? I have no idea. No authority is cited. I know of no judicial decision or academic writing that supports such a view. We have many examples of international crimes being prosecuted ‘retroactively’ by ordinary national jurisdictions. This is deemed acceptable because the crimes are proscribed by international law, even if they were not prohibited by national law at the time of their commission. Eichmann, to start with. In Canada, Finta and Munyaneza. And other universal jurisdiction trials in such places as Belgium, the Netherlands, France and, recently, the United States.

At the International Criminal Court, we say states must be willing and able to prosecute international crimes. There's been no suggestion they need to set up an ad hoc tribunal or a special jurisdiction for the purpose. And most states have not in fact done this, further confirmation that there is no international custom imposing such a requirement.

The decision is in French. Here is the operative part:

58. Toutefois, et dans la mesure où L'objet essentiel de la présente affaire découle du mandat donne par l'Union Africaine au Sénégal pour juger « au nom de l'Afrique par une juridiction compétente avec les garanties d'un procès juste», la Cour se doit de rechercher l'équation ou l'équilibre entre le fond du mandat et les méthodes qu'emprunte généralement le droit international dans pareilles situations.

… la Cour note que si les faits à la base de l'intention de juger le requérant ne constituaient pas des actes délictueux d'après le droit national sénégalais, (d'ou le Sénégal viole le principe de non rétroactivité consacré dans le texte) ils sont au regard du droit international, tenus comme tels. Or, c'est pour éviter l'impunité des actes considérés, d'après le droit international comme délictueux que le paragraphe 2 de L'article 1 5 du Pacte prévoit la possibilité de juger ou de condamner «tout individu en raison d'actes ou omissions qui, au moment ou ils ont été commis, étaient tenus pour criminels, d'après les principes généraux de droit reconnus par l'ensemble des nations ».

La Cour partage donc, les nobles objectifs contenus dans le mandat de l'Union Africaine et qui traduit l'adhésion de cette Haute Organisation aux principes de l'impunité des violations graves des droits humains et de la protection des droits des victimes. Toutefois, la Cour relève que la mise en œuvre du mandat de l'Union Africaine doit se faire selon la coutume internationale qui a pris L'habitude dans de telles situations de créer de juridictions ad' hoc ou spéciales. L'expression« .juridiction compétente .. » contenue dans ce mandat ne signifie rien d'autre que la mise en place d'un cadre judiciaire ad hoc dont la création et les attributions trouveraient leur bas relief dans les dispositions de L'article 15.2 du Pacte International sur les Droits Civils et Politiques et que le Sénégal est chargé de proposer au mandant les formes et modalités de mise en place d'une telle structure. Ainsi, toute autre entreprise du Sénégal en dehors d'un tel cadre violerait, dune part, le principe de la non rétroactivité de la loi pénale, consacré par les instruments internationaux relatifs aux droits de l'homme comme étant un droit intangible et d'autre part, ferait obstruction au respect du principe de l'impunité consacré par les mêmes textes internationaux.

The Politics of the Lebanon Tribunal

The International Crisis Group has released a report on 'the politics of the Lebanon Tribunal'. It is not entirely apparent what the ICG is proposing, but its take on the Tribunal suggests that priority be given to politics over law. The catch-line on its website says: 'An intra-Lebanese deal on how to respond to forthcoming indictments by the Special Tribunal for Lebanon (STL) is necessary to avoid a breakdown of the country’s precarious balance of power, even as the STL pursues its work.'
The report discusses the tensions associated with the work of the Tribunal - which, by the way, has to date been essentially confidential, the subject of rumor rather than anything official. ICG refers to attempts by Syria and Saudi Arabia to negotiate 'a compromise' by which Lebanon would 'request the Security Council to halt STL activities once indictments have been issued, for the sake of domestic stability. It could condition further cooperation with the tribunal on its taking certain steps (eg, foregoing the option of trials in absentia; agreeing to look into the so-called false witnesses affair). Or cooperation could continue even as Lebanon expressed serious doubts as to the basis of its findings. A compromise should be accompanied by a collective agreement to allow the prime minister to govern more effectively – something he systematically has been prevented from doing.'

The ICG is a prestigious body with a lot of influence, and its speculation on the future of the Tribunal is not to be taken lightly.
Although an 'international tribunal' in a technical sense, because it is created by the Security Council of the United Nations and resembles, in a structural sense, the international criminal tribunals for the former Yugoslavia, Rwanda and Sierra Leone, the Special Tribunal for Lebanon's jurisdiction is confined to 'ordinary' terrorist crimes. The imperative to put justice before politics is certainly weaker under the circumstances.
Thanks to Rick Lorenz.