Monday 29 December 2008
Special Rapporteur for Human Rights in the Occupied Territories Condemns Israeli Airstrikes on Gaza Strip
The Israeli airstrikes on the Gaza Strip represent severe and massive violations of international humanitarian law as defined in the Geneva Conventions, both in regard to the obligations of an Occupying Power and in the requirements of the laws of war.
Those violations include:
Collective punishment – the entire 1.5 million people who live in the crowded Gaza Strip are being punished for the actions of a few militants.
Targeting civilians – the airstrikes were aimed at civilian areas in one of the most crowded stretches of land in the world, certainly the most densely populated area of the Middle East.
Disproportionate military response – the airstrikes have not only destroyed every police and security office of Gaza's elected government, but have killed and injured hundreds of civilians; at least one strike reportedly hit groups of students attempting to find transportation home from the university.
Earlier Israeli actions, specifically the complete sealing off of entry and exit to and from the Gaza Strip, have led to severe shortages of medicine and fuel (as well as food), resulting in the inability of ambulances to respond to the injured, the inability of hospitals to adequately provide medicine or necessary equipment for the injured, and the inability of Gaza's besieged doctors and other medical workers to sufficiently
treat the victims.
Certainly the rocket attacks against civilian targets in Israel are unlawful. But that illegality does not give rise to any Israeli right, neither as the Occupying Power nor as a sovereign state, to violate international humanitarian law and commit war crimes or crimes against humanity in its response. I note that Israel's escalating military assaults have not made Israeli civilians safer; to the contrary, the one Israeli killed today after the upsurge of Israeli violence is the first in over a year.
Israel has also ignored recent Hamas' diplomatic initiatives to reestablish the truce or ceasefire since its expiration on 26 December.
The Israeli airstrikes today, and the catastrophic human toll that they caused, challenge those countries that have been and remain complicit, either directly or indirectly, in Israel's violations of international law. That complicity includes those countries knowingly providing the military equipment including warplanes and missiles used in these illegal attacks, as well as those countries who have supported and participated in the siege of Gaza that itself has caused a humanitarian catastrophe.
I remind all member states of the United Nations that the UN continues to be bound to an independent obligation to protect any civilian population facing massive violations of international humanitarian law – regardless of what country may be responsible for those violations. I call on all Member States, as well as officials and every relevant organ of the United Nations system, to move on an emergency basis not only to condemn Israel's serious violations, but to develop new approaches to providing real protection for the Palestinian people.
Monday 22 December 2008
Prior to the declarations of independence, all three territories belonged to States that were parties to the Rome Statute. As a result, crimes committed on their territory or by their nationals are subject to the jurisdiction of the International Criminal Court. My question is: what happens if they become independent?
Whether or not they are independent States involves complex questions of both law and fact. Presumably the International Court of Justice will give us some guidance on this in the Kosovo advisory opinion. Given that declarations of independence often correspond to zones of armed conflict or civil disturbance, it seems fairly probable that such developments will be associated with allegations of crimes within the jurisdiction of the Court. And that means that judges of the International Criminal Court may have to decide whether a State is genuinely independent or not in deciding whether the Court actually has jurisdiction (art. 19(1)).
The Rome Statute is silent on the subject of succession to treaties. Presumably, under general rules of international law when a State breaks away from another, a declaration of succession is required. This is what happened when Montenegro separated from Serbia. The list of States Parties to the Rome Statute on the website of the depositary indicates that Montenegro became a State Party through a declaration of succession (see http://www.icc-cpi.int/asp/statesparties/country&id=107.html).
To my knowledge, no such action has been taken by Kosovo, or by the two Georgian breakaway States. Does this mean that if they have indeed successfully declared independence, the International Criminal Court no longer has jurisdiction over their territory or their nationals?
Any insights into this problem from readers of the blog would be welcomed.
Saturday 20 December 2008
Human Rights Committee Decision Condemns Implementation of Security Council Counter-terrorism Sanctions by Belgium
In particular, the travel ban – to which Belgium had apparently objected, but felt itself obliged to enforce – constituted a violation of article 12 (freedom of movement) in that it prevented the applicants from leaving the country. Public dissemination of the names of the two applicants on the blacklist constituted a violation of article 17 (right to privacy). There are several individual and dissenting opinions, including dissents by Ruth Wedgwood and Ivan Shearer.
Security Council sanctions seem to defy the rule of law. So it is a welcome development that the United Nations Human Rights Committee has deemed itself authorised to examine the violations that result from their implementation. The decision joins a growing body of material challenging the way the sanctions are imposed, emanating from the European Court of Justice and the Parliamentary Assembly of the Council of Europe.
The decision is only available in French at present, and doesn’t seem to be posted on the website of the Office of the High Commissioner for Human Rights. It is currently being translated into English.
The results of the resolution simply confirm the continued progression towards abolition of capital punishment worldwide. According to Amnesty International, 137 of the 192 United Nations Member States may be considered abolitionist, either in law or in practice. Approximately 2-3 States abolish the death penalty each year, a trend that exists for more than twenty years. If this continues, the death penalty will disappear in twenty-two years, that is, by 2030.
Friday 19 December 2008
The Trial Chamber writes (at para. 17): ‘According to customary international law, there are some acts for which immunity from prosecution cannot be invoked before international tribunals.’ Furthermore (at para. 25), ‘The Trial Chamber considers it well established that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law.’
I think this may be overstating things.
In support, the Trial Chamber cites article 7(2) of the Statute, and similar provisions in other statutes of international criminal tribunals. These texts deal with a defence of official capacity, which is not quite the same thing as immunity. Basically, the defence of official capacity is relevant to prosecutions under national law where a defendant claims he or she was not acting as an individual but rather as an agent of the State. It has been rejected since Nuremberg.
But immunity is different. It involves an argument that a tribunal is without jurisdiction out of respect for the sovereignty of some other authority. Thus, as the International Court of Justice has made clear, the courts of a State cannot exercise jurisdiction over the head of State of another country, whatever the crime, and even in the case of genocide and crimes against humanity.
But what about international tribunals? The fallacy of the absolute statement by the Trial Chamber can be seen in article 19 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. According to article 19, in the event that the International Criminal Court seeks to prosecute a United Nations official who benefits from immunity, the United Nations agrees to cooperate in waiving the immunity. But this would be unnecessary if there was no immunity anyway, as the Trial Chamber of the Yugoslavia Tribunal seems to claim. How can the United Nations agree to waive something it doesn't have in the first place?
When the Negotiated Relationship Agreement was being drafted, Belgium proposed an amendment that affirmed the premise that there was no immunity before international tribunals for international crimes (‘Proposal submitted by Belgium concerning document PCNICC/2000/WGICC-UN/L.1’, PCNICC/2000/WGICC-UN/DP.18, art. 8) but it was withdrawn and replaced with the current article 19.
The argument is important to the extent it concerns heads of State and others who might enjoy immunity when faced with the International Criminal Court. Article 27(2) of the Rome Statute says they have no immunity. But article 27(2) is a treaty provision and it only binds States that have ratified the treaty. In other words, article 27(2) cannot apply to heads of State of countries that have not joined the International Criminal Court. The result must be, in my opinion, that they still have immunity before the International Criminal Court, even for genocide, crimes against humanity and war crimes. This is because the Rome Statute cannot take away from them something to which they are entitled under customary international law.
In my view, the argument that Karadzic is without immunity before the Yugoslavia Tribunal should not be based on the proposition that there is no immunity before ‘international courts’ for such crimes. Rather, it is an implicit consequence of the creation of the Tribunal by a Security Council resolution pursuant to Chapter VII of the Charter of the United Nations. But I would be prepared to bet money on the proposition that the Legal Adviser to the United Nations considers that United Nations officials still enjoy immunity from the Yugoslavia Tribunal unless this has been formally waived.
Thursday 18 December 2008
Wednesday 17 December 2008
Qualifications include: PhD degree and some experience in teaching the related fields, as well as good knowledge of human rights. Good English language skills; knowledge of Chinese would be an asset but is not a prerequisite.
Application with CV and documentation to be sent to The Danish Institute for Human Rights, Strandgade 56, DK 1401 Copenhagen K Application date: 15 January 2009
Contact: Lone Lindholt (email@example.com, tel. +45 32698841) or Hatla Thelle (firstname.lastname@example.org, tel. +45 32698849).
Wednesday 10 December 2008
The pending application alleges an attack intentionally directed at international peacekeepers, resulting in 12 deaths and 8 severe injuries, as well as property damage. The application insists upon the importance of the crime of intentionally directing attacks against peacekeepers. It is noteworthy that this crime is one of the innovations in the Rome Statute.
The discussion makes an interesting contrast with the statement issued by the Prosecutor on 9 February 2006 explaining his decision not to proceed with investigations in the case of willful killings committed by British troops in Iraq. He said: ‘The number of potential victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions…’
The strictly quantitative focus of the Office of the Prosecutor at the time was also reflected in public statements explaining why arrest warrants had been issued against the rebel Lord’s Resistance Army leaders but not against military officials of the Ugandan forces.
This new appreciation that issues of gravity in case selection have a qualitative as well as a quantitative dimension is welcome. Perhaps it is now time to revisit the Iraq situation. There is an arguable case that killing innocent civilians as a consequence of an aggressive war in violation of the Charter of the United Nations is also a serious matter, perhaps just as serious as killing a comparable number of peacekeepers. Killing civilians was a war crime long before anybody had given any thought to special criminalization of attacks on peacekeepers.
Monday 8 December 2008
I have been attending many Genocide Convention commemorations in recent days, and this is certainly not the first time I have heard calls for military intervention to prevent genocide even in the absence of authorisation from the United Nations Security Council. At a recent conference in London, I heard speakers explain that genocide in Darfur could be averted if only the US would send military helicopters and other ‘assets’.
Scary stuff. To paraphrase the Irish writer Brendan Behan (see photo), there is no human situation so miserable that can’t be made worse by the presence of the US military (Behan said 'by the presence of a policeman'). Sending the US army to prevent genocide seems like killing the patient to cure the illness.
Friday 5 December 2008
On closer reading of the judgment, it seems that the Trial Chamber may well have decided that Bikindi was guilty of 'direct and public incitement' because it did not think it could establish a causal link between the words he pronounced and acts of genocide.
I find some ambiguity in the judgment on this point. The core of the conviction reposes on Bikindi's behaviour when he participated in a convoy of interahamwe (the racist militia) vehicles, in June 1994.
The Trial Chamber accepted the evidence of a witness who said that Bikindi exhorted people from a loudspeaker, saying: 'You sons of Sebahinzi, who are the majority, I am speaking to you, you know that the Tutsi are minority. Rise up and look everywhere possible and do not spare anybody.' (para. 268). 'The witness also testified that on the way back from Kayove, Bikindi stopped at a roadblock and met with leaders of the local Interahamwe where he insisted, “you see, when you hide a snake in your house, you can expect to face the consequences.” After Bikindi left the roadblock, members of the surrounding population and the Interahamwe intensified their search for Tutsi, using the assistance of dogs and going into homes to flush out those still hiding. Witness AKK stated that a number of people were subsequently killed, including Father Gatore and Kalisa.' (ibid). The Chamber accepts AKK's evidence.
At the conclusion of its discussion of this incident, the Chamber writes:
'281. For the reasons above, the Chamber finds that the Prosecution has proven beyond reasonable doubt that towards the end of June 1994, in Gisenyi préfecture, Bikindi travelled on the main road between Kivumu and Kayove in a convoy of Interahamwe and broadcast songs, including his own, using a vehicle outfitted with a public address system. When heading towards Kayove, Bikindi used the public address system to state that the majority population, the Hutu, should rise up to exterminate the minority, the Tutsi. On his way back, Bikindi used the same system to ask if people had been killing Tutsi, who were referred to as snakes.'
I think that when you take paragraph 268 ('Witness AKK stated that a number of people were subsequently killed'), and read it with the concluding paragraph, 281, you have the link between words and deeds.
In any case, surely it makes more sense to treat the genocide on a larger scale, whereby an individual who is inciting genocide in Rwanda during June 1994 is guilty of inciting a genocide that actually takes place. Sheer common sense makes the link. In Nahimana et al., the case dealing with Radio-télévision mille collines, there was no requirement of evidence that any specific crime had been committed because any specific killer had listened to a specific radio broadcast.
But assuming that the Trial Chamber did in fact convict Bikindi for 'direct and public incitement' in the absence of evidence that he actually incited anybody to perpetrate genocide, surely the sentence of fifteen years' imprisonment is grossly excessive. In my research into national legislation implementing the Genocide Convention, I have noted that several countries set maximum sentences of five or ten years for the inchoate incitement offence. Imposing a fifteen-year sentence is only justifiable if the Chamber really believed that Bikindi's speeches were more than the empty words of a fanatic, and that they actually led to loss of life.
Thanks to Joe Powderly.
Wednesday 3 December 2008
Bikindi is particularly interesting because it involves a popular singer, whose compositions were alleged to have contributed to the genocidal hysteria in Rwanda in 1994. Bikindi was convicted by the Trial Chamber, but for only one count, and sentenced to fifteen years’ imprisonment. He gets credit for about seven and a half years of preventive detention, and should be eligible for release on parole within two and a half years.
The Chamber concluded that in June 1994 Bikindi had participated in a motorcade of the racist interahamwe militia, and that he personally incited people to exterminate Tutsi.
Bikindi is convicted of the crime of ‘direct and public incitement to commit genocide’. This is a legal error. The crime of ‘direct and public incitement’ is a very special formulation, meant to capture forms of incitement when genocide does not in fact take place. When genocide takes place, the correct charge is simply ‘incitement’. It need not be direct or public, as long as genocide is actually incited.
Saturday 29 November 2008
Unfortunately, in the same session the National Assembly adoped legislation criminalising homosexual behaviour.
Thursday 27 November 2008
In its report to the Security Council on the completion strategy, prepared a year ago, the Tribunal said it would issue judgments concerning nine defendants during the first half of 2008. To date, Nshamahigo is the only judgment issued. Several defendants in Bagosora et al. have been awaiting judgment since their trial ended in June 2007, seventeen months ago. They have been in custody since 1996 and 1997.
What is delaying this Tribunal? Why does everything move so slowly? It it because the faster the Tribunal moves, the sooner the institution will close its doors, and the judges and employees will see their jobs come to an end?
The Security Council will meet in the next few weeks for the next report of the Tribunal on the completion strategy. It will be interesting to see if any of the members of the Security Council challenge the Tribunal on the failure to meet its commitments, and whether the President of the Court or the Prosecutor have any reasonable explanations for the delays.
Saturday 22 November 2008
The resolution proceeds to the plenary session of the General Assembly, where we can expect its adoption in mid to late-December.
Thursday 20 November 2008
Wednesday 19 November 2008
There is another piece of this: the 2007 judgment of the Court in Bosnia v. Serbia. There the Court also dismissed Serbia’s objection based upon the 2004 ruling. The Court said the 2004 ruling, in Serbia v. NATO, didn’t apply to Bosnia v. Serbia, because a 1996 decision had already decided that Serbia was properly before the Court when Serbia was sued by Bosnia in 1993. Because the 1996 ruling had already settled the question, the Court could not return upon its decision in the 2007 judgment, even if the 2007 judgment seemed to contradict the 2004 judgment.
Confused? Imagine trying to explain this in Belgrade. It seems that whenever Serbia gets sued, the Court can hear the case. But when Serbia sues, the case is found to be inadmissible.
For a student of the Genocide Convention, this means we will have another Court judgment on the merits concerning the interpretation and application of the Convention. Croatia’s application would seem to stand on weak ground from a substantial point of view. It concerns the Serbia-Croatia war in 1991 which, while brutal enough, hardly compares with the Serbia-Bosnia war of 1992-1995. And in that latter conflict, the Court found that genocide had not been committed, with the exception of the Srebrenica massacre of mid-July 1995. The Court based itself largely upon the findings of the International Criminal Tribunal for the former Yugoslavia. If it does the same, it will quickly acknowledge that there have been no findings of genocide by the Yugoslavia Tribunal with respect to the 1991 war between Serbia and Croatia.
There is an oblique reference to the merits at the end of yesterday’s ruling. In paragraph 141, the Court writes:
As already noted above, since proceedings were instituted in this case, the Court has given judgment in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), (Judgment of 26 February 2007); and Serbia has reliedThe 2007 judgment in Bosnia v. Serbia confirmed that the Court would apply a relatively narrow and strict construction of the definition of the crime of genocide. These words in the recent decision on admissibility suggest that it is not likely to reconsider the approach.
on that decision also in the context of the issue now under examination. In that case the Court found that there had been a “deliberate destruction of the historical, cultural and religious heritage of the . . . group [protected by the Convention]” (Judgment of 26 February 2007, para. 344). However, the Court found that “[a]lthough such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group, and contrary to other legal norms, it does not fall within the categories of acts of genocide set out in Article II of the Convention” (ibid.). As has already been indicated (paragraphs 52-56 above), this decision does not have the force of res judicata in the present proceedings, but the Court sees no reason to depart from its earlier finding on the general question of interpretation of the Convention in this respect. The Court will have to decide how these findings of law are to be applied, and what may be their effect in the present case.
I just spent the morning in the Lubanga Status Conference hearing at the ICC.Niamh says she’s going to the Charles Taylor trial on Thursday, and will let us know if anything interesting is going on there.
There were some pretty major developments, although I
don't know how much gossip had leaked out about it in advance. The prosecution
has made a complete turn-around and agreed to make all the confidential
information available, seemingly without restriction, to both the Chamber and
the defence. The Chamber have already had the chance to review it, and it will
be released to the defence later this week. As a result, the stay of proceedings
has been lifted and a tentative trial date has been set for 26 January. When I
left there was still an argument running about whether to allow temporary
release for Lubanga subject to his remaining in the Hague. There were some
fairly tart statements made by the defence about inexcusable delays due to the
prosecution acting in bad faith in relation to the Article 54(3)(e) material,
although the OTP obviously refused to take any responsibility whatsoever. I just
wandered in to the ICC on spec knowing that there was a status conference
scheduled, although I didn't expect to be there for such a major development! I
thought you'd like to know so you can put it up on the blog.
Thanks to Ann Carney.
Thursday 13 November 2008
The law in the judgment (and, apparently, in the ruling of the Hungarian courts) is somewhat confusing, because the European Court seems to muddle the distinction between serious violations of common article 3 to the Geneva Conventions and crimes against humanity. It treats a violation of common article 3 as a crime against humanity, which cannot be right.
There are interesting discussions of the threshold for a non-international armed conflict (hence, the application of common article 3), as well as the contextual elements of crimes against humanity. In particular, the Court seems to support the views of Cherif Bassiouni (with which I agree), by which a State policy is a requirement for crimes against humanity. However, Professor Bassiouni’s views are rather in the minority, and they are directly contradicted by case law of the International Criminal Tribunal for the former Yugoslavia (Kunarac appeal).
This is an example of a rather strict application of article 7 of the European Convention. For another recent example, see Kononov v. Latvia, about which I made comments in an earlier blog. Most of the European Court’s case law has been rather more generous to States. Recent examples are Kolk and Penart v. Estonia and Jorgic v. Germany. Older ones include the German border guards case and the British spousal rape cases. The International Criminal Tribunal for the former Yugoslavia has taken a similarly flexible approach to the retroactivity rule, following a tradition that dates back to Nuremberg.
For the judgment: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=72736&sessionId=15800243&skin=hudoc-en&attachment=true
Webcast of the hearing before the Grand Chamber: http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/Webcasts%20of%20public%20hearings/webcastEN_media?&p_url=20070704-1/lang/?
Saturday 8 November 2008
Here is a partial list:
Athens, 12-13 November: http://www.mediafire.com/?g9jm1wxijsi
London, 2 December: http://www.doughtystreet.co.uk/seminars_events/seminar_event_details.cfm?iSeminarEventID=224
Marburg, Germany, 4-6 December: http://www.mediafire.com/?yyrt1lw1ryy
The Hague, 7-8 December: http://www.h-net.org/announce/show.cgi?ID=163342
Paris, 9 December:
Buenos Aires, 10-12 December: http://www.mediafire.com/?uvdfimm1zi9
Berne, 15 December: http://www.mediafire.com/?dcntjr1ymto
I have also heard of one in Moscow, on 17 December, and I think there is one in Israel during the week of 8 December.
According to the announcement:
There are three main components: (i) the Lecture Series provides lectures by
eminent law scholars and practitioners from different countries on virtually
every subject of international ; (ii) the Historic Archives contains
introductory notes prepared by internationally recognized , audiovisual
materials recording the history of the negotiation and adoption of significant
legal instruments (e.g., the Charter of the United Nations, the Universal
Declaration of Human Rights, the Genocide Convention, and the Law of the Sea
Convention), the procedural history as well as text of the legal instruments and
other key documents; and (iii) the Research Library provides on-line library of
international law materials, including treaties, jurisprudence, United Nations
and legal publications as well as scholarly writings provided by HeinOnLine.
My modest contribution was the entry on the Genocide Convention.
Wednesday 5 November 2008
I've put up a few photos of African Americans who helped move the goal posts: Jackie Robinson, the first black to play in major league baseball. He joined the Brooklyn Dodgers in 1949 after a trial run with the Montreal Royals. The Dodgers manager had sent Robinson to Montreal to prepare him for the big move. Robinson lived among French Canadians, who welcomed him warmly in a manner still unthinkable if he had tried to live with white Americans. Thurgood Marshall, the first African-American judge of the United States Supreme Court. He was appointed in the 1960s, after leading epic judicial battles for equality as counsel for the National Association for the Advancement of Coloured People, including the historic Brown v. Board of Education decision that was the beginning of the end for segregation in education. And now, Obama.
This is a defining moment in the struggle against racial discrimination that has been so central to the modern human rights movement, both within the United States and internationally.
Tuesday 4 November 2008
Thanks to Eadaoin O'Brien.
Sunday 2 November 2008
(1) the development of the theory of joint criminal enterprise and the evolution of the definition of this mode of liability, with particular reference to the time period 1975-9;
(2) whether joint criminal enterprise as a mode of liability can be applied before the Extraordinary Chambers, taking into account the fact that the crimes were committed in the period 1975-9 (See for example http://www.eccc.gov.kh/english/cabinet/courtDoc/138/D99_3_12_EN.pdf.)
Joint criminal enterprise has caused some controversy at the International Criminal Tribunal for the former Yugoslavia, partly because of its lack of a clear statutory basis and its weak foundations under customary international law, and it has been fairly definitively rejected in early rulings of the International Criminal Court. Its use at the Extraordinary Chambers should prove no less problematic given that the applicable law limits criminal responsibility to those who "planned, instigated, order, aided and abetted or committed" crimes and to those superiors who fail to prevent or repress crimes.
This week, the Pre-Trial Chamber received detailed amicus curiae briefs from the Centre for Human Rights and Legal Pluralism at McGill University (http://www.eccc.gov.kh/english/cabinet/courtDoc/165/D99_3_25_EN_McGil.pdf), Professor Cassese et al. (http://www.eccc.gov.kh/english/cabinet/courtDoc/163/D99_3_24_EN_Cassese.pdf) and Professor Ambos (http://www.eccc.gov.kh/english/cabinet/courtDoc/164/D99_3_27_EN_Ambos.pdf) . Professor Cassese argues that all three categories of joint criminal enterprise were recognised as customary international law in 1975-79, while Professor Ambos contends that this is only the case for the first category. The McGill submission notes the weakness of the supporting caselaw cited in the seminal decision of the International Criminal Tribunal for the former Yugoslavia (Tadic Appeals Chamber, 15 July 1999) but finds that 'there is some evidence to support the general existence of the third category of JCE already in the early years after the Second World War".
The Extraordinary Chambers may have enough issues to deal with under the principle of legality, without resorting to a particularly problematic doctrine that has very weak foundations under customary international law, probably even more so thirty years ago.
Thanks to Dr Shane Darcy, who prepared this note.
When it issued the arrest warrants in 2005, Pre-Trial Chamber II said that the cases appeared to be admissible, but made no detailed examination of the matter. In its order of 21 October 2008, the Pre-Trial Chamber points to political agreements that are part of the peace process, including their call for the establishment of special judicial mechanisms aimed at dealing with atrocities.
Of some note is a reference in the decision to the Appeals Chamber decision of July 2006, discussed in the previous entry in this blog. The Pre-Trial Chamber cites the Appeals Chamber as authority for its right to consider the issue of admissibility on its own motion.
What I am unclear about is where this all leads? If the Pre-Trial Chamber concludes that the cases are still admissible, it doesn’t advance things very much. It might just as well have ignored the issue. If, on the other hand, it concludes they are not admissible, what happens next? Article 58(4) says: ‘The warrant of arrest shall remain in effect until otherwise ordered by the Court.’ But this looks rather like the Pre-Trial Chamber considering an appeal of its own earlier decision to issue an arrest warrant. It is not obvious to me that it has the authority to do this under the Rome Statute, nor that it is wise for it to do this as a matter of judicial policy.
What we have only learned in recent weeks is that on the same day in February 2006, the Pre-Trial Chamber dismissed another application for an arrest warrant, in the case of Bosco Ntaganda, on the grounds that it was not of sufficient gravity: http://www.icc-cpi.int/library/cases/ICC-01-04-02-06-20-Anx2-ENG.pdf. That decision was appealed by the Prosecutor, and overturned by the Appeals Chamber in July 2006: http://www.icc-cpi.int/library/cases/ICC-01-04-169-tFRA.pdf (note that on the Court’s website the French and English versions of the judgment are transposed, so for the time being one needs to click on ‘French’ in order to get the English version). A few weeks afterward the Appeals Chamber judgment, in August 2006, the same Pre-Trial Chamber issued an arrest warrant for Bosco Ntaganda, but under seal.
The Appeals Chamber decided to make its ruling public in late September 2008. The Appeals Chamber was dismissive of the theories advanced by the Pre-Trial Chamber about gravity, and dramatically reduced the significance (if any) of the gravity issue as a condition for admissibility of a case. It is an important decision in terms of the law of the Court. What a curious institution it is, to keep a truly seminal ruling of its Appeals Chamber on a key point of law a secret for more than two years!
The Ntaganda materials were kept under seal at the Prosecutor’s request. Now the Prosecutor says he suspects that Ntaganda knows of the arrest warrant, so there is no longer any point in the secrecy.
Keeping arrest warrants secret proved to be a rather questionable strategy at the International Criminal Tribunal for the former Yugoslavia, and I believe that it was soon abandoned, with perhaps a few exceptions. The opposite has been the case at the International Criminal Court, although as with the Yugoslavia Tribunal it does not appear to have produced very much. And of course we now have a very striking contrast in the application for an arrest warrant for the president of Sudan, which was made public even before being issued by the Pre-Trial Chamber. Probably publicity rather than secrecy is more helpful in bringing suspects to justice, as a general rule.
Thursday 30 October 2008
[GENEVA, 28 October 2008] - The World Organisation Against Torture (OMCT) is deeply concerned about new information that Iran willcontinue to sentence to death minors who have committed murder. This new declaration by Hossein Zabhi, the Assistant Attorney General forJudicial Affairs goes back on a first statement announcing that death sentence will no longer be imposed on any under-18 juveniles whatevercrime they have committed.On 17th October, OMCT issued a press release welcoming the positive announcement by the Iranian Judiciary. Unfortunately, a few days later, the same authority announced in a new statement that deathpenalty was still applicable to juveniles who had committed murder. It went on explaining that, according to the Iranian law, the punishment for murder is based on the system of qesas (or retribution). It is considered a private dispute between two parties –the alleged offender and the victim's family- where the state's role is limited to the resolution of the dispute through the judicial process. Qesas isimposed by the victim's family who is the sole able to pardon thealleged offender or to accept compensation. to this system, the State authorities are not competent to modify the setnence. It remains unclear why Iranian authorities went back on their first statement and the intention of the Iranian authorities was to mislead the Iranian and international human rights community. This does not take into account the situation of the juveniles on death rowand their families who could rightfully understand from the initial statement that the death sentence would be commuted into prison term.OMCT strongly calls the Islamic Republic of Iran to respect the international norms it has adhered to and ratified such as the UN Convention on the Rights of the Child and the International Covenanton Civil and Political Rights.
The position taken by the government of Iran is difficult to understand, because it amounts to saying that the government cannot intervene when private citizens propose to kill an adolescent.
Thanks to Aoife Daly.
Taylor is subject to life imprisonment. Sentencing proceedings are due to begin in January.
Evidence was produced showing that Taylor, who is 31, led an elite ‘antiterrorist unit’ known as the ‘Demon Forces’ in the government headed by his father. Witnesses reported that Tyalor had been involved in killings and torture using electric shocks, lit cigarettes, molten plastic, hot irons, stabbings with bayonets and biting ants shoveled onto people's bodies.
Taylor did not testify in his own defense. His lawyers suggested that witneses had lied in order to obtain asylum in the United States or to settle scores with Taylor’s father.
Charles Taylor père has been on trial in The Hague before a Trial Chamber of the Special Court for Sierra Leone since January 2008.
Monday 27 October 2008
According to the Court, Niger failed to protect a young girl, Hadijatou Mani, who was sold into slavery. The court ordered Niger state to pay her 10 million CFA francs (about Euro 12,000) in damages and accumulated interest. The Guardian says: ‘The ruling by the panel of judges from Senegal, Mali and Togo will bring hope to the more than 40,000 people being held as slaves in rural Niger and across the region.’
Thanks to Dr. Michael Kearney.
Today, Florence Hartmann appeared before the Tribunal, chared with having 'knowingly and willfully...disclos[ed] information in violation of an order of the Appeals Chamber'. According to the Chamber, these are charges punishable by the 'inherent power of this tribunal' as well as pursuant to Rule 77(a)(ii) of the Rules of Procedure and Evidence. According to the Chamber articles 20 and 21 of the Statute do not distinguish between 'accused and accused', i.e. those accused with crimes against humanity and those charged with contempt. Ms Hartmann elected not to enter a plea today. She said that she and her counsel are waiting for a decision from the Registry as to whether she will be recognised as being indigent, financially speaking, as this will determine if her counsel can continue to represent her. A schedule for a further initial appearance will be issued in due course, probably within the next 15 days . It is estimated at this point that the date for the start of the trial will be early next year.
Thanks to Eadaoin O'Brien who attended the hearing.
Wednesday 22 October 2008
Basically, the Chamber has confirmed that the Trial Chamber was right to order a stay of proceedings. But they have given the Prosecutor a small additional window of time to fix the situation. Because the Trial Chamber did not issue a permanent stay of proceedings, the Appeals Chamber said that it was not correct to order the release of the accused. But it said that this would be inevitable once the stay is made permanent. And the Appeals Chamber also signalled issues about the right to a trial within a reasonable delay, a point that becomes increasingly relevant.
Now, presumably, the Lubanga defense will apply for the stay to be made permanent. The Prosecutor has been trying to fix things, but so far he has not been successful. In late August, the Trial Chamber rejected his efforts. Perhaps he can do better. Time will tell, I suppose, but he doesn’t have much time left.
The whole business is a disaster for the Court, in its first case. At the same time, sending the message that the Court will only proceed when the rights of the defense have been scrupulously observed is perhaps not so bad.
Sunday 19 October 2008
The issue may be of some interest to the International Criminal Court, whose jurisdiction begins on 1 July 2002. Many have examined whether it might peer into the past, using the gambit of 'continuing crimes'. This might well apply not only to the crime against humanity of enforced disappearance but also to the war crime of moving settlers to an occupied territory. The issue was left somewhat unresolved at the Rome Conference, when the International Criminal Court statute was adopted.
Using information provided by churches and city halls around the country, as well as the Catholic hierarchy, Garzón has compiled a list of some 114,266 victims. , according to the court document. These individuals were on, or linked to the losing Republican side in the civil war.
State prosecutors take the position that an Amnesty Law of 1977 covers the disappearances.
See: http://www.typicallyspanish.com/news/publish/article_18476.shtml; http://www.nytimes.com/2008/10/17/world/europe/17spain.html?ref=world.
The painting is of course Picasso's great Guernica, portraying the 1937 bombing of the Basque town. The photo shows the town after the bombing.
Thanks to Eadaoin O'Brien, and to Tara Smith for the photos.
Saturday 18 October 2008
The Organisation welcomes the announcement as a crucial step in the fight against the death penalty applied to juvenile offenders in Iran, but expresses caution because the directive has no legal finding force. According to the Association, six juveniles have been executed in 2008 and between 130 and 140 juvenile offenders are currently on death row in Iran.
The Convention on the Rights of the Child (art. 37(a)), to which Iran is a party, prohibits the death penalty for persons under the age of 18. The practice is also forbidden by article 6(5) of the International Covenant on Civil and Political Rights, which Iran ratified in 1975. Iran is the last State in the world to carry out such executions. The practice was used occasionally in the United States until it was declared unconstitutional by the United States Supreme Court in 2005.
We often point to the growing trend to abolish the death penalty altogether as evidence of an evolving norm in international law that may at some point constitute a customary rule. But the in many ways the juvenile death penalty provides an even clearer example. The debate began back in 1949, at the time of adoption of the fourth Geneva Convention. Article 68 of the fourth Convention prohibits the juvenile death penalty, but only within an occupied territory. The provision made some countries, including the United Kingdom, so uncomfortable that they delayed ratification of the fourth Geneva Convention for several years. Then, the norm was enshrined in article 6(5) of the International Covenant on Civil and Political Rights, adopted in 1966, and finally in the Convention on the Rights of the Child, adopted in 1989.
Many States stopped executing juvenile offenders, but they were slower to change their laws (like Iran). Ireland is an example. I'm not sure when the last juvenile execution in Ireland took place, but it must have been prior to 1954, because that is when the last execution of any kind took place. Yet Ireland still authorised juvenile execution in its criminal law until the early 1990s. When Ireland ratified the International Covenant on Civil and Political Rights, in 1989, it felt it needed to make a reservation to article 6(5) because of its legislation which was still in force. The only other country to make a reservation to article 6(5) is the United States. Of course, the death penalty in Ireland is now prohibited by the Constitution and the reservation is therefore of no significance.
Another country I know rather well, Canada, was sentencing juveniles to death as late as the 1950s. I vividly remember someone of 14 being sentenced to death in Canada in 1959 for allegedly murdering a girl. I was only a few years younger than him at the time. He protested his innocence, but was only absolved of the crime in 2007.
When the Convention on the Rights of the Child was adopted, there were about ten States in the world, most of them Arab or Islamic, that retained the death penalty for juvenile offenders. One by one, they eliminated the practice. Some of them claimed this might conflict with Shariah law, but they did it anyway in order to conform with their international obligations.
So Iran's move means that the barbaric practice has been eradicated in the entire world. A human rights norm that started in a humanitarian law convention only 59 years ago is now truly universal.
And it is also evidence of progress in the norm towards universal abolition. The leading executioners in the world are China, Iran and the United States. All three continue to limit the scope of capital punishment, even if they are not yet ready to abolish it altogether.
Friday 17 October 2008
http://www.youtube.com/watch?v=EADUQWKoVek. If things don't go well in November, we'd love it if he'd return back home and take on the job of Taoiseach. The guy currently doing the job is going through a bit of a rough patch.
I suppose everybody has seen the hilarious Saturday Night Live sketch about Sara Palin, but in case you missed it:
http://www.nbc.com/Saturday_Night_Live/video/clips/couric-palin-open/. I can hardly wait to visit that goofy evolution museum in New York City again.
And for those of you who haven't had enough wacky U-tube clips, this one comes from my daughter Louisa. It isn't really about human rights, but it is entertaining: http://video.on.nytimes.com/?fr_story=c2466d0e1f2dc3bb2272c66c29927fb6ed254996.
Thanks to Rick Lines, Pat O'Leary and Louisa Schabas.
Thanks to Joe Powderly.
Thursday 16 October 2008
This July, James Crawford organized a big event at the Lauterpacht Research Centre in Cambridge to mark both the 25th anniversary of the Centre and Sir Eli’s 80th birthday. It was a gathering of many of the great and the good in public international law from around the world, including several sitting and former judges of the International Court of Justice.
Eli Lauterpacht gave me my first break in international law when he was owner and publisher of Grotius Publications in Cambridge. I had completed my doctoral thesis on the abolition of the death penalty, and had sent the manuscript out to the leading publishers. Within a few weeks I had an offer from Eli Lauterpacht, whose small firm wasn't encumbered by the time-consuming bureaucracy of the bigger publishers, which of course I accepted. Later, the company was sold to Cambridge University Press, which has published the second and third editions. More than once I have told him of the great debt I owe him for this. Many others have similar stories of appreciation for Sir Eli.
Thanks to Joe Powderly.
Wednesday 15 October 2008
Troy Davis, who was sentenced to death, has compelling evidence that he is innocent.
It is normal for criminal justice systems to put some closure on appeals and other challenges, but it is entirely different when a person's life is at stake. How can a civilised society execute somebody for whom their are serious grounds to think they may be innocent? What does it cost them to consider the claim and examine the new evidence?
Hopefully, there will be regime change in Washington in the coming weeks. This may well result in new appointments to the Supreme Court and, eventually a more enlightened jurisprudence on the death penalty.
Thanks to Nadia Bernaz.
Tuesday 14 October 2008
Thanks to Yvonne McDermott.
Thursday 9 October 2008
Earlier this year, a Trial Chamber denied the transfer on a number of grounds. The Appeals Chamber granted the appeal in some respects, notably in the decision by the Trial Chamber that because the trials in Rwanda would be held before a single judge this was not an adequate guarantee of a fair trial. But on other issues, such as speculation that a person sentenced in Rwanda might theoretically be required to serve a sentence in solitary confinement, and problems in obtaining witnesses for trial, the Trial Chamber decision was upheld.
There are two other judgments on appeal, but presumably the result will be similar.
In my opinion the judges have been far too severe, setting unrealistically high standards. This means a significant increase in the caseload of the Tribunal and at least three new trials and possibly more that it had been hoped would not be needed, because they could be held before national courts. The judges of both chambers will have to stay on and work for another year or two as a result of their decisions.
Thanks to Cliona Kelly.
Wednesday 8 October 2008
Once again, Judge Schomburg is in dissent on the issue of joint criminal enterprise. Readers of this blog will recallthat a few days ago I posted the decision of the Pre-Trial Chamber of the International Criminal Court in
Another element of interest in the decision is its confirmation of case law on the definition of ‘civilian’ within the context of crimes against humanity. The Appeals Chamber says that a combatant who is hors de combat is not a civilian within the meaning of crimes against humanity.
Sunday 5 October 2008
Tuesday 30 September 2008
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
Thanks to William Hartzog.
Wednesday 24 September 2008
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.