Tuesday 26 August 2008

Guiding Principles for Human Rights Field Officers Working in Conflict and Post-conflict Environments

The 'Guiding Principles for Human Rights Field Officers Working in Conflict and Post-conflict Environments' are available at www.humanrightsprofessionals.org. They were developed in the framework of 'Consolidating the Profession: The Human Rights Field Officer', an international, inter-institutional project that seeks to further enhance human rights fieldwork. The principal project partners are the University of Nottingham Human Rights Law Centre, the Office of the United Nations High Commissioner for Human Rights (OHCHR), the European Inter-University Centre for Human Rights and Democratisation, the University of Pretoria Human Rights Centre, the Scuola Superiore Sant'Anna di Pisa and, in their personal capacities, Mr. Roberto Garretón and Professor Vitit Muntarbhorn. Together with the associated Statement of Ethical Commitments of Human Rights Professionals, the Guiding Principles are made available to relevant organisations as well as to individual human rights field officers. It is also envisaged that they will be of assistance to the various actors, such as humanitarian and development agencies, and international military and police components, who engage with human rights field operations, whereby they will have a better understanding of their work and their methods.
Thanks to Michael O'Flaherty.

Friday 15 August 2008

Fabulous Resources on War Crimes Prosecutions

Yesterday I posted an item on the travaux préparatoires of the 1949 Geneva Conventions. Joe Powderly found them on the website of the Library of Congress. We've dug a bit deeper, and found many other wonderful materials that are often difficult to find. They are all in pdf format and can be easily dowloaded. They all appear to be machine searchable. The site is: http://www.loc.gov/rr/frd/Military_Law/ Click on 'Geneva Conventions' had you get the travaux of the Conventions, but also the Commentaries issued by the International Committee of the Red Cross. Click on 'War Crimes Trials Materials' and you get the entire record of the Nuremberg trial, the 15-volume proceedings of the thematic trials at Nuremberg that followed the International Military Tribunal, and the reports by Robert Jackson and Telford Taylor. There is much other material here also of interest, and even a facility whereby they will contact you when new materials are added.

Thursday 14 August 2008

Rwanda Report Indicates French Complicity in Genocide

A few days ago, the Government of Rwanda released its report on French involvement in the 1994 genocide. It is available, with several relevant supporting documents, on the website of its Department of Justice: http://www.minijust.gov.rw/news.html. The actual report seems to be in French only, but there is an English summary: http://www.minijust.gov.rw/communique_english_version.pdf.
The French are furious, of course, but they are only getting a taste of their own medicine. A few years ago a French prosecutor attempted to indict President Kagame and several senior officials in Rwanda for crimes against humanity. France was exercising universal jurisdiction, whereas Rwanda is doing no more than to invoke its territorial jurisdiction.
Since the International Court of Justice issued its ruling in Bosnia v. Serbia last year, I have wondered how long it would take to figure out the application of that decision to the Rwandan genocide. The Court said (at para. 432), that the Serbs in Belgrade, ‘In view of their undeniable influence and of the information, voicing serious concern, in their possession, the Yugoslav federal authorities should, in the view of the Court, have made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale, though it could not have been foreseen with certainty, might at least have been surmised. The FRY
leadership, and President Milošević above all, were fully aware of the climate of deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the Srebrenica region…’ Surely the same reasoning is perfectly applicable to the relationship between France and Rwanda in the period preceding the genocide. As the summary of the recent Rwanda report indicates, French military advisers were deeply involved in the Habyarimana government from 1990 to 1994, and were well aware of the racist plans afoot.
Thanks to Muyoboke Aimé Kalimunda.

Travaux préparatoires of the Geneva Conventions

The travaux préparatoires of the 1949 Geneva Conventions are not always easy to locate. They were published in four volumes by the Swiss government, which is the depository of the treaties, and can be found in many reference libraries. Here they are in fully searchable pdf format: http://www.mediafire.com/?sharekey=5ee4f5773adc93cbab1eab3e9fa335caa9c0d203e89c5c9c
Thanks to Joe Powderly.

Immunity for Bashir?

The Justice for Darfur section on the Oxford Transitional Justice Research Group website has papers on whether President Bashir has immunity under international law: http://www.csls.ox.ac.uk/otjr.php?show=workingpapers.
Thanks to Aisling O'Sullivan.

Guide to Jurisprudence on Torture

The Association for the Prevention of Torture has issued a publication entitled Torture in International Law, A Guide to Jurisprudence. It is available at: http://www.apt.ch/component/option,com_frontpage/Itemid,1/lang,en/
Thanks to Michelle Farrell.

Georgia Sues Russia for Racial Discrimination at International Court of Justice

Georgia has filed an application against Russia at the International Court of Justice alleging violation of the International Convention for the Elimination of All Forms of Racial Discrimination. It is an example of the increasing use of the International Court of Justice to litigate human rights issues.
According to a press release issued by the Court (http://www.icj-cij.org/docket/files/140/14659.pdf?PHPSESSID=6ab9015a5827500d102910f4db435d49), Georgia says the ‘Russian Federation, through its State organs, State agents, and other persons and entities exercising governmental authority, and through the South Ossetian and Abkhaz separatist forces and other agents acting on the instructions of, and under the direction and control of the Russian Federation, is responsible for serious violations of its fundamental obligations under [the] CERD, including Articles 2, 3, 4, 5 and 6’. Georgia argues that Russia violated obligations under the Convention during three distinct phases of its interventions in South Ossetia and Abkhazia in the period from 1990 to August 2008. Russia is charged with ‘ethnic cleansing’.
Georgia’s lawyer is my old friend Payam Akhavan, who is now based a McGill University in Montreal.
Article 22 of the International Convention for the Elimination of All Forms of Racial Discrimination constitutes a ‘compromissory clause’ that gives jurisdiction to the International Court of Justice. It is similar to article 9 of the Genocide Convention, that was the jurisdictional basis of the Bosnia v. Serbia case judged last year. To my knowledge this is the first time that article 22 has ever been invoked before the International Court of Justice. In 2005, the Democratic Republic of Congo successfully used other human rights treaties in a claim against Uganda at the Court.
Russia’s predecessor, the Soviet Union, ratified the Convention on 4 February 1969, but with a reservation to article 22 ((1969) 676 UNTS 397). The reservation was withdrawn on 8 March 1989. Georgia acceded to the Convention on 2 June 1999 with no reservation to article 22. Russia will argue that the Court is without jurisdiction with respect to anything that occurred prior to 2 June 1999.
At the same time, Marlise Simons in the New York Times reports that Georgia has also approached the Prosecutor of the International Criminal Court: http://www.nytimes.com/2008/08/14/world/europe/14hague.html?ref=world. Georgia deposited its instrument of ratification of the Rome Statute of the International Criminal Court on 5 September 2003. The Court has jurisdiction over the entire territory of Georgia since that date, even over Russian nationals. Russia, too, has been making allegations that war crimes were committed by Georgian troops (see: http://afp.google.com/article/ALeqM5hqadlwunQ3wUhdcHpaqjj6cQQyvw). Unlike Georgia, however, Russia is not a member of the International Criminal Court, and it therefore has no right to trigger proceedings before the Court under article 14. The Prosecutor would still be free to charge Georgians, acting under article 15 of the Statute, but to date he has never used this power.
The Ossetian and Abkhaz separatists have invoked recent developments in Kosovo, where there is increasing momentum for international recognition of the new state. Here, they have a good argument. Back in 1991, when the former Yugoslavia was breaking up, a series of opinions by European Union tribunal presided over by Robert Badinter declared that there was no absolute right to separation, and that new states could only be created following previous administrative boundaries within a federation. Thus, the tribunal recognized the independence of Bosnia and Herzegovina, Croatia, Slovenia and Macedonia, but denied the Bosnian Serbs the right to separate from Bosnia. This was the issue that led to the terrible 1992-1995 war.
Now, Europe is willing to let Kosovo separate from Serbia, something it denied the Bosnia Serbs when they wanted to separate from Bosnia. And elsewhere in the world, separatist groups have seized upon this inconsistency. If we follow the Badinter Commission rulings, South Ossetia and Abkhazia cannot constitute themselves as independent states. If we follow contemporary practice concerning Kosovo, this is hardly so clear. We have not seen the last of repercussions of Kosovo independence.

Wednesday 13 August 2008

New Publications of Interest

The second edition of the Triffterer Commentary on the Rome Statute is now in print, an impressive 1,900 pages and right up to date. It can be ordered from Hart Publishing (http://www.hartpub.co.uk/books/details.asp?isbn=9781841138886) but be warned that the price is a scary £240. I have a copy in my office if anyone wants to use it.
Also just received is the following:
Damon Barrett & Vinodh Jaichand, 'The Right to Water, Privatised Water and Access to Justice: Tackling United Kingdom Water Companies' Practices in Developing Countries', (2007) 23 South African Journal on Human Rights 5430-562.
Clemens A. Müller, 'The Law of Interim Release in the Jurisprudence of the International Criminal Trib unals', (2008) 8 International Criminal Law Review 589-626.
Vinodh is of course deputy director of the Irish Centre for Human Rights. Damon and Clemens are graduates of our LLM programme.

Tuesday 12 August 2008

Cambodia Hybrid Court Indictment Made Public

The indictment against Duch, who ran the infamous Tuol Sleng prison in Pnomh Penh during the 1970s, was posted today on the website of the Extraordinary Chambers of the Courts of Cambodia: http://www.eccc.gov.kh/english/default.aspx. Duch has been in prison for nearly a decade. He is charged with war crimes and crimes against humanity, but not genocide. Indeed, the word genocide does not appear in the 45-page document. The prosecutors are wisely sticking to settled law, and are not trying to push the interpretation of the term genocide, despite a widespread popular conception that this is how the Cambodian atrocities of the 1970s should be characterised. The one exception to what is a pronounced trend towards such careful and restrictive approaches to the definition of genocide is the application for an arrest warrant agains Sudan's president Bashir made last month by the Prosecutor of the International Criminal Court.

Friday 8 August 2008

Liberian Parliament Attempts to Reinstate Capital Punishment

Liberia has enacted legislation introducing the death penalty for certain crimes. Liberia abolished the death penalty in 2004, and confirmed this by acceding to the Second Optional Protocol to the International Covenant on Civil and Political Rights on 16 September 2005. Article 1(2) of the Protocol says ‘Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.’ Clearly, this latest development in Liberia is a violation of the obligations that Liberia assumed when it acceded to the Second Optional Protocol. In any event, as a State party to the International Covenant on Civil and Political Rights, Liberia cannot reintroduce capital punishment as this would violate its obligation under article 6(1) of the Covenant to protect against the arbitrary deprivation of the right to life (as interpreted by the Human Rights Committee in Judge v. Canada).
The President of Liberia may veto the legislation, in accordance with the country’s constitution: http://www.amnesty.org/en/for-media/press-releases/liberia-president-must-veto-death-penalty-bill-20080718
This is the first time any State party to the Second Optional Protocol has attempted to reinstate capital punishment. It is a very serious development that should be immediately condemned by authoritative bodies such as the Human Rights Committee, the High Commissioner for Human Rights and the relevant special rapporteurs. President Sirleaf must be urged to respect her country’s international obligations.

Sunday 3 August 2008

'The Karadzic calamity'

Interesting opinion piece in today's Sunday Indpendent on the Karadzic trial, subtitled 'Hague prosecutors red-faced after Bosnian Serb leader rejects outdated charge sheet': http://www.independent.co.uk/news/world/europe/war-crimes-tribunal-the-karadzic-calamity-883641.html. If this is true, they should probably get a team revising the Mladic indictment too.

Friday 1 August 2008

Will the Security Council Block the Bashir Prosecution? Recent Developments

Yesterday, the United Nations Security Council adopted a resolution extending the mandate of the peacekeeping mission in Darfur. The vote was 14 in favour with one abstention, the United States. The text of the resolution and the procès-verbal of the meeting are not yet up on the United Nations website, but they should be available later today. The heart of the controversy was the inclusion of language within the resolution that indicated the Security Council was open to suspending the prosecution of President Bashir by the International Criminal Court.
China, in comments following the vote, strongly supported such a suspension. Russia and South Africa were also reportedly in favour of this. The United States, on the other hand, was unhappy with the language because of its implication that Bashir might escape prosecution. Article 16 of the Rome Statute of the International Criminal Court authorises the Security Council to suspend prosecutions for one year. It has been used twice before, in 2002 and 2003, following bullying by the United States, which threatened to veto all United Nations peace support missions if the resolution based upon article 16 was not adopted. Now, it seems, the United States does the opposite, threatening its veto if the article is invoked. What an irony! The United States is fighting for the integrity of the International Criminal Court! It was praised for its stance (this time) by Human Rights Watch.