Tuesday 30 September 2008

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.

Thursday 25 September 2008

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.

Wednesday 24 September 2008

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.

Tuesday 23 September 2008

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.

Monday 22 September 2008

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.

Sunday 21 September 2008

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:
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.

Friday 19 September 2008

Women in Majority in New Rwandan Parliament

With electoral results now available from Rwandan parliamentary elections held earlier this week, it seems clear that there will be a female majorityin the country's next legislature. Rwanda is the first country in the world to accomplish this. Some 55% of the seats in the new parliament will be held for women, well ahead of Sweden and Cuba where women have more than 40% of the legislative seats. This is another encouraging example of progress in human rights in Rwanda. Last year, Rwanda abolished capital punishment. Rwanda may lag behind in other areas, some of this accountable to the legacy of genocide and the extreme underdevelopment of its economy. But here are two areas, at least, where Rwanda scores well ahead of some modern democracies with developed economies.

Thursday 18 September 2008

Candidate Judges for the International Criminal Court

Nominations are open to fill six judicial positions at the International Criminal Court. Ten candidates have been nominated so far. The process concludes on 13 October and will be followed by an election early next year. Full details on the candidates are available at: http://www.icc-cpi.int/asp/election_2008/alpha_elections08.html.
Some of the names are well-known international judges and will surely be great additions to the Court: Christine Van den Wyngaert (Belgium) is currently at the International Criminal Tribunal for the former Yugoslavia, and as an academic she has been one of the bright stars in international criminal law for many years. Mohamed Shahabuddeen (Guyana) is one of the great judges of the Appeals Chamber of the ad hoc tribunals; previously, he served on the International Court of Justice.
The third familiar name - currently a judge at the Special Court for Sierra Leone - is Rosolu John Bankole Thompson. He would be a less desirable choice. Thompson distinguished himself a year ago as the dissenting judge on the Trial Chamber in the 'CDF case'. He voted to acquit pro-government militias of atrocities because they were defending a democratically elected government. It was an absurd and outrageous suggestion, and of course it finds no echo in international criminal law. But Thompson was appointed to the Special Court for Sierra Leone by the Government of Sierra Leone and - surprise, surprise! - he voted to acquit murderers and rapists because they were defending the Government of Sierra Leone. Now he is being rewarded by being nominated for the International Criminal Court by that same Government of Sierra Leone.

Raphael Lemkin's House in Warsaw

Raphael Lemkin was the Polish Jewish international lawyer who invented the word 'genocide'. Born in 1900 in what was then called Eastern Galicia (and which is now Ukraine), not far from where my paternal grandparents came from, Lemkin studied law with some of the great Polish legal academics of the time. He first worked as a prosecutor and then practised law in Warsaw during the 1930s, while developing a profile in international criminal law circles. In 1939 he managed to escape Poland and made his way to the United States, where he wrote his seminal work Axis Rule in Occupied Europe, one of whose chapters is entitled 'genocide'. Lemkin became a tireless activist, lobbying at the United Nations for the Genocide Convention. Following its adoption, on 9 December 1948, he continued to campaign for ratification and domestic implementation until his death in 1959.
He is virtually unknown in his native Poland. The Polish Institute of International Affairs is hosting a conference right now, one of several such gatherings being held in the coming months to commemorate the 60th anniversary of the adoption of the Genocide Convention. Yesterday, they unveiled a plaque at Lemkin's home in central Warsaw, and I had the privilege of being present at this important event. The apartment is at 6 Kredytowa Street, about two blocks from the perimeter of the Warsaw ghetto where half a million Jews perished. Had Lemkin lingered a few more weeks in Warsaw, he would surely have suffered the same fate.
The map of Warsaw I was given at my hotel has a whole section on it devoted to sites of 'Jewish Heritage'. This is quite a change from the first time I came here some fifteen years ago, when Warsaw's Jewish past seemed largely ignored. Then I remember asking the hotel concierge how to get to the Warsaw ghetto monument, and he just shrugged his shoulders, saying he had never heard of it. I got similar responses from taxi drivers, and could find nothing in local guide books or tourist maps. I eventually found the monument on my 1993 visit, and went back there again yesterday to pay my respects. Now there is a large sign indicating plans to build a museum of Jewish life in Warsaw.
Yesterday I also visited the famous Pawniac prison in Warsaw, where the Nazis held and murdered tens of thousands of political opponents. One of the exhibits shows the cover of a book issued by the Polish government in exile in December 1942, and published by the London publishing house Hutchison, entitled The Mass Extermination of Jews in German Occupied Poland. So much for the argument that the great powers only learned of the genocide in late 1944 and early 1945.

Monday 15 September 2008

Another Chapter in the Kindler Saga

Those who follow issues of human rights and the death penalty will know the name Joseph Kindler. He was convicted of murder in the United States and sentenced to death but managed to escape and flee to Canada. He unsuccessfully challenged his extradition before the Supreme Court of Canada, on the grounds that Canada could not extradite someone to a country where they would be subject to the death penalty. Then, he subsequently fought his case before the Human Rights Committee, but failed to convince its members that Canada would be breaching international law by extraditing him to the United States where he would face the death penalty.
Kindler has been back in the United States since 1991, but he is still fighting. He just won a ruling reversing his death sentence and calling for either a new sentencing hearing or commutation of his sentence to life imprisonment: http://www.ca3.uscourts.gov/opinarch/039010p.pdf
And in the meantime, both the Supreme Court of Canada (Burns and Rafay, 2001) and the Human Rights Committee (Judge, 2003) have reversed their case law. I hope that Kindler's decision is upheld, and that he lives to see the abolition of the death penalty in the United States, something that will happen sooner, rather than later, and probably faster than it took the Supreme Court of Canada and the Human Rights Committee to change their minds.
Thanks to Mark Warren.

Michael O'Flaherty Gets Most Votes in Election for Human Rights Committee

Nine members of the United Nations Human Rights Committee have been elected to four-year terms. Michael O’Flaherty, of Ireland, was re-elected to the Committee, with 136 votes, the highest number of any candidate. Michael actually hails from Galway, and has been a great supporter of the Irish Centre for Human Rights since it was established eight years ago. Among the others who were elected are two good friends of the Irish Centre for Human Rights, Nigel Rodley of the United Kingdom (re-elected to a third term) and Mohammed Ayat of Morocco, both of whom have particpated in our activities over the years. Mohammed Ayat has represented the International Criminal Tribunal for Rwanda in Kigali. The other six members elected are Rajsoomer Lallah ( Mauritius); Krister Thelin ( Sweden); Fabian Omar Salvioli ( Argentina); Ahmad Amin Fathalla ( Egypt); Rafael Rivas Posada ( Colombia); and Lazhari Bouzid ( Algeria).
The Human Rights Committee is established by the International Covenant on Civil and Political Rights, and has responsibility for the study of State reports on their compliance with the Covenant, for individual and inter-state petitions, and for the preparation of General Comments which constitute the authoritative interpretation of provisions of the Covenant.

Oxford Reports on International Criminal Law

Oxford University Press has just launched the Oxford Reports on International Criminal Law, which is one component within its broader venture entitled Oxford Reports on International Law. The Oxford Reports on International Criminal Law are produced here in Galway, by a team composed of Joe Powderly, Niamh Hayes and myself. Students at the Irish Centre for Human Rights have access to the Reports through their regular university account, at http://oxfordlawreports.com.
The reports consist of case summaries and indexes of leading international criminal law cases, together with the decisions themselves. Previously, research in the case law of international criminal tribunals involved rather tedious combing through the websites of the various tribunals. Even then, as a general rule the tribunal websites do not allow for keyword searches and they are not indexed. The International Law Reports respond to the problem, but they cover only a very limited number of cases. Hundreds of cases are already on line, and we will be continuing to add more.

Sean Goggin Successful in Thesis Defence

On Friday 12 September 2008, Sean Goggin successfully defended his doctoral thesis entitled ‘The Protection of Cultural Diversity in International Human Rights Law’. The external examiner was Dr. Perveez Mody of the Department of Social Anthropology of the University of Cambridge, and I was the internal examiner. The thesis was supervised by Prof. Joshua Castellino, formerly of the Irish Centre for Human Rights and now Head of the Law School of Middlesex University in London.
The thesis was a genuinely interdisplinary work, explaining and developing concepts derived from the discipline of anthropology and making them accessible and relevant to international human rights lawyers. Congratulations, Sean. We will miss you at the Irish Centre for Human Rights.
Sean is the seventeenth student to successfully complete a doctorate since the Irish Centre for Human Rights began awarding the degree, in late 2004.

Tuesday 9 September 2008

Israeli Politician Accused of War Crimes

As Israeli Prime Minister Ehud Olmert faces corruption charges, one of his deputies and a leading candidate as his successor has been accused of committing war crimes, reports The Independent: http://www.independent.co.uk/news/world/middle-east/olmert-indicted-as-deputy-is-accused-of-war-crimes-922496.html. Earlier this year, The Independent reported that Shaul Mofaz , who was army chief of staff in 2001, called for 70 Palestinians a day to be killed.
Professor David Kretzmer, one of Israel’s prominent law professors and a great friend of the Irish Centre for Human Rights, has written to justice officials calling for the reports to be investigated. According to Professor Kretzmer, these accounts raise ‘a grave suspicion’ that Mofaz ‘committed serious offences, some of which at least, fall into the category of war crimes’. He is quoted in The Independent saying that an order to kill people ‘by quota’ is ‘not consistent with the norms of humanitarian law’, and that the test of proportionality is especially relevant in cases of military occupation, in which even the actions of armed groups do not ‘relieve the Army of its obligations to residents of the territory’.

OECD Guidelines on Corporate Responsibility Cited in Decision

Student's at last year's doctoral seminar may remember a discussion about the use of OECD Guidelines on corporate responsibility, and their justiciability. The United Kingdom OECD National Contact Point has delivered a decision in the case of Global Witness v. Afrimex finding Afrimex in violation of the human rights provisions of the Guidelines: http://www.globalwitness.org/media_library_detail.php/661/en/. AFrimex is a United Kingdom-based corporation involved in the mineral industry. The decision found that Afrimex initiated demand for minerals from a conflict zone and used suppliers who had made payments to Rassemblement congolais pour la démocratie-Goma, a rebel group operating in the eastern Democratic Republic of Congo. It concluded that Afrimex had failed to contribute to sustainable development in the region and to respect human rights. The National Contact Point also stated that Afrimex applied insufficient due diligence to the supply chain, sourcing minerals from mines that used child and forced labour.
Thanks to Jernej Černič.

Monday 8 September 2008

More on ‘Victor's Justice’: The European Court Ruling in Kozonov

In late July of this year, a chamber of the European Court of Human Rights granted the application of Vassili Kozonov, a Latvian partisan during the Second World War, decorated with the Order of Lenin, who was convicted of war crimes by Latvian courts in the 1990s: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=72153&sessionId=13585696&skin=hudoc-en&attachment=true. The Court held that the prosecution was based on retroactive operation of the law, contrary to article 7 of the European Convention of Human Rights. Kosonov had participated in a massacre in a Latvian village, but he argued that the victims were combatants, not civilians, and that this was not contrary to international law at the time. The decision was by a very close vote, four judges to three, and it will almost certainly be reviewed by a Grand Chmaber of the Court, composed of 17 judges.
The dissenters sensed that underpinning the reasoning of the majority was a reluctance to condemn a partisan for fighting the Nazis. ‘Why should criminal responsibility depend on which side those guilty of war crimes were fighting on?’ asks the minority.
This is a fascinating new chapter in the evolving ‘victor's justice’ debate. Earlier this year, the Appeals Chamber of the Special Court for Sierra Leone ruled that the side on which a person is fighting should not even be taken into account for purposes of sentencing, as an aggravating or a mitigating factor: http://www.sc-sl.org/Documents/CDF/SCSL-04-14-A-829.pdf.
I recently reported an item on this blog about prosecution of Jewish partisans in Lithuania for war crimes committed in the final stages of the Second World War. And I could add to this the ongoing debate at the International Criminal Tribunal for Rwanda about prosecuting members of the Rwandese Patriotic Front for atrocities committed against Hutu in Rwanda in the months following the genocide.
Personally, I am inclined to think that the side one is fighting on has to be relevant to certain issues of international criminal justice. The view of the Appeals Chamber of the Special Court for Sierra Leone is troubling, and seems inconsistent with the approach we would take in domestic legal systems, where the motive of the offender is always very relevant to determination of the penalty. It is also fundamental in terms of prosecutorial discretion, something now confronting the Rwanda Tribunal.
The biggest critic of Nuremberg as ‘victor’s justice’ is the notorious David Irving (see his scurrilous book on the Nuremberg trial, which you can download free from his website: http://www.fpp.co.uk/books/Nuremberg/index.html - please don’t buy it). Many think it would have been better if both sides were prosecuted at Nuremberg, but I cannot agree. It is true that the Allies committed war crimes, and that there was terribly civilian damage as a result of bombing of cities, like Dresden and Hamburg. Nuremberg is one of the great symbolic trials of our time, and if it had reflected a view by which both sides had been guilty of atrocities this would not clarify history, it would distort it. Yet isn’t that the logic of the dissenters in the Kononov judgment?

Friday 5 September 2008

Another Setback for the Office of the Prosecutor in Lubanga Case

Readers of the blog will know of the decisions by a Trial Chamber of the International Criminal Court in June of this year ordering a stay of proceedings and the release of the accused in the first case to come to trial, Prosecutor v. Lubanga. The issue concerns disclosure to the defence of materials that the Prosecutor obtained on a confidential basis from the United Nations and some NGOs. These decisions are on appeal. But since then, the Prosecutor has been making efforts to repair the damage. He has obtained a number of concessions from the United Nations, including the right to disclose some documents entirely and others in redacted form.
Yesterday, the Trial Chamber ruled that this is still inadequate: http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1467-ENG.pdf.
I was last in The Hague in early July, and was rather surprised at what I would call the great confidence in the Office of the Prosecutor that the situation was under control and would be resolved. At the Salzburg Summer School in mid-August, the Prosecutor told participants that everything was being repaired. But Professor Kai Ambos gave a talk a few days later reviewing what had been done, and it didn't look so clear. And now the Trial Chamber has said, once again, that the efforts of the Prosecutor are not good enough.

Customary Law Study Available on line in pdf (in French)

Volume I of the study on customary law by the International Committee of the Red Cross is now available in the French language version on line at: http://www.icrc.org/web/fre/sitefre0.nsf/html/pcustom?opendocument. The English version, published by Cambridge University Press, only exists in hard copy to my knowledge.
Thanks to Jean-Marie Henckaerts.

Wednesday 3 September 2008

Human Rights Council, Year II

Rachel Brett of the Quaker United Nations Office in Geneva haunts the halls of the Palais des Nations, and is an astute observer of everything to do with human rights that goes on in that building. She has just issued a report on the second year of the Human Rights Council: http://www.mediafire.com/?sharekey=5ee4f5773adc93cbab1eab3e9fa335ca71d7625596b028a3

Tuesday 2 September 2008

The Power to Punish for Contempt

Two comments responded to my post of yesterday on the prosecution of Florence Hartmann for contempt.
I think it is not correct to say that all criminal tribunals have an inherent power to prosecute contempt. It is probably accurate to say that all criminal tribunals can prosecute contempt when it occurs in the courtroom itself (in facie). But I do not think it is the case that all criminal tribunals have an inherent power to prosecute contempt when it takes place outside of the courtroom (ex facie). In many criminal justice systems this power would be reserved to a court of general jurisdiction, and would not be available to a statutory court. In other words, it is not at all obvious that the Statute of the International Criminal Tribunal gives the judges the power to prosecute contempt when it takes place outside the courtroom.
Now, the judges have given themselves this power by the Rules of Procedure and Evidence, of which they themselves are the authors. But they cannot enact Rules that exceed the powers they have been granted by the Security Council in the Statute.
Assuming they are wrong, who can stop them (other than the Security Council)? How about this scenario. Ms Hartmann refuses to appear, and is then subsequently arrested by national courts somewhere. If she were to challenge her arrest and transfer to The Hague before the national courts, through a habeas corpus application or some similar mechanism, she could raise an interesting argument about the legal validity of the Rules of Procedure and Evidence to the extent that they may exceed the jurisdictional remit in the Statute. In effect, judges of a national court would be asked to sit in judicial review of the powers of the judges of the International Criminal Tribunal for the former Yugoslavia to enact Rules that are ultra vires. Why not?
The idea that international judges have inherent powers to prosecute certain crimes (contempt, perjury) has always bothered me. How far does this go? Can they also prosecute someone for hacking into the website of the Tribunal, or failing to return a book to the library, or stealing the bicycle of one of the judges? I think the answer is that Dutch law would look after that. So why can't Dutch law also deal with contempt and perjury?

Appeals Chamber Orders a Retrial

In Prosecutor v. Muvunyi, the Appeals Chamber of the International Criminal Tribunal for Rwanda has ordered a retrial: http://www.mediafire.com/?sharekey=5ee4f5773adc93cbab1eab3e9fa335ca869775f79bb5ce6a (note that the judgment is not yet available on the website of the tribunal). It is, to my knowledge, the first time a retrial has ever been ordered in the practice of the ad hoc tribunals. The Appeals Chamber reversed the conviction of Muvunyi on several counts. With respect to a count of inciting genocide, however, the Appeals Chamber said that the Trial Chamber had not given adequate reasons, making it impossible for the Appeals Chamber to assess the validity of its reasoning. According to the Appeals Chamber: ‘The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. In the present situation, the Appeals Chamber is well aware that Muvunyi has already spent over eight years in the Tribunal’s custody. At the same time, the alleged offence is of the utmost gravity and interests of justice would not be well served if retrial were not ordered to allow the trier of fact the opportunity to fully assess the entirety of the relevant evidence and provide a reasoned opinion.’ (para. 148) Rule 118(C) of the Rules of Procedure and Evidence states: ‘In appropriate circumstances the Appeals Chamber may order that the accused be retried before the Trial Chamber.’
Muvunyi was initially sentence to twenty-five years' imprisonment. But the retrial is only ordered for one of several counts, and he is acquitted of everything else. By the time retrial and appeal are finished, he will probably have spent more than ten years in pre-trial detention. It seems debatable that ordering a retrial is really in the interests of justice, especially considering the completion strategy and the need for the Tribunal to finish its work soon.

Monday 1 September 2008

Florence Hartmann Prosecuted for Contempt

Late last year, Florence Hartmann published her memoir of the International Criminal Tribunal for the former Yugoslavia, where she worked as an assistant to Prosecutor Carla del Ponte for several years. The account, entitled Paix et châtiment, is full of juicy gossip, although of course it is impossible to distinguish fact from fiction in many cases. I learned about secret decisions of the Appeals Chamber concerning disclosure of evidence from Serbia. As an employee of the Tribunal, Hartmann wasn't supposed to divulge these secrets. She might have been in breach of her contract of employment. But the Tribunal has gone a step further, charging her with contempt. She is ordered to appear in The Hague on 15 September 2008: http://www.un.org/icty/milosevic/hartmannf/trialc/order-e/080827.pdf. I'm not sure what they can do if she doesn't show up. I've always been intrigued at how the Tribunal gave itself the authority to prosecute contempt of court, as an ancillary or implied power, because the Statute does not give it any express authority in this area. Under the Statute, it has jurisdiction to prosecute serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991. It is not clear to me that publishing a book in Paris fits within this framework.

Working for the High Commissioner in Congo

An interesting job is advertised on the website of the Office of the High Commissioner for Human Rights, working on a mapping project in Congo. They are looking for someone immediately. The job lasts 6 to 9 months: http://www.ohchr.org/EN/AboutUs/Pages/WorkStudyOpportunities.aspx.

Venice Film Festival

I've been away from the blog for a week or so. This is my yearly visit to Venice for the summer school on cinema and human rights of the European Inter-University Centre. I saw a terrific film on Saturday, Z32 by Avi Mograbi. It is a film about an elite Israeli soldier who describes the murder of several Palestinians in what he called a 'revenge attack'. This was clearly a violation of international law (and, no doubt, a murder under Israeli law as well). The film has wonderful music, with an eclectic chamber orchestra that behaves a bit like a Greek chorus. It seemed to straddle the line between fiction and documentary, but at the end of the screening I went to congratulate Mograbi and ask how much of it was true. He answered: 'It's a documentary.' Try to see this one if you get the chance.