Sunday 28 June 2009

Judge Sotomayor on Death Penalty

it is difficult to pin down the position of Obama's first nominee for the Supreme Court, Sonia Sotomayor, on the issue of capital punishment. Of course, coming from New York State, where there has really been no effective death penalty for several decades, it is not strange that she would not have had a chance to express judicial views on the matter. Moreover, under the bizarre system of judicial appointments in the United States, a person who expresses views on issues like capital punishment and abortion can be pretty certain of ruling themselves out for appointment to higher courts. The New York Times recently published an article attempting to divine her position:
My reading of the US Supreme Court is that there are four pretty certain votes for judicial abolition of capital punishment at some point in the near future, but I am including Judge Sotomayor. This is based on opinions of the justices in recent cases, notably Roper v. Simmonds of 2005, which ruled the juvenile death penalty to be unconstitutional. When I read that ruling, I am struck by how many of the arguments used by the majority work for the death penalty in general.
So there are two missing ingredients. A fifth judge. And a good test case. Obama will have to resolve the first part (assuming some cooperatio from the right-wingers on the Court, one of whom needs to move on to another career and leave a seat open for a new appointment). As for a good test case, there will be no shortage, I am sure. There are only about fifty countries left that have capital punishment, and of them the majority rarely use it. That the United States will abolish the death penalty, by Supreme Court judgment, within the next ten or fifteen years seems to me to be as likely as the melting of the glaciers in Greenland.
Thanks to Chris Ryan.

Annual Report of European Fundamental Rights Agence

The Annual Report of the European Fundamental Rights Agency has just been released:
It deals specifically with racist crimes, homophobic crimes, compensation for victims of crime, protection of children, and use and abuse of video surveillance and personal data.

Human Rights and Drug Policy

Damon Barrett, one of our graduates, has an article on the website of The Guardian concerning human rights, security policy and drugs:

Togo Abolishes the Death Penalty

Togo has become the fifteenth African country to abolish the death penalty de jure:
Legislation was enacted to this effect by the country's parliament last week. Togo has not actually imposed the death penalty for three decades and has long been considered a de facto abolitionist state. This confirms evidence of two important trends: the general trend towards abolition in the world; and the very pronounced trend of states that abolish the death penalty in practice to subsequently confirm this by positive legal measures.
Here is the list of fifteen, with the year in parentheses indicating the adoption of relevant legislation: Mozambique (1990), Namibia (1990), Sao Tome and Principe (1990), Angola (1992), Guinea-Bissau (1993), Seychelles (1993), Djibouti (1995), Mauritius (1995), South Africa (1997), Côte d’Ivoire (2000), Senegal (2004), Liberia (2005), Rwanda (2007), Burundi (2008) and Togo (2009).
The following belong on the list of de facto abolitionist States, with the date in parentheses indicating the last known execution: Algeria (1993), Benin (1987), Burkina Faso (1988), Cameroon, Cape Verde, Central African Republic (1981), Republic of Congo (1982), Comoros, Côte d’Ivoire, Djibouti, Eritrea, Gabon, The Gambia (1981), Ghana, Kenya (1987), Lesotho, Madagascar (1958), Malawi (1992), Maldives (1952), Mali (1980), Mauritania (1987), Morocco (1993), Niger (1976), Senegal (1967), Swaziland, Tanzania, Tunisia (1991) and Zambia.
Taken together, this is an impressive list of forty-three States. There are, I think, fifty-four States on the continent. Note that the first de jure abolition in Africa dates only to 1990, less than two decades ago.

Leave to Appeal Granted in Bashir Case

Pre-Trial Chamber I of the International Criminal Court has authorised leave to appeal its decision denying charges of genocide with respect to the arrest warrant it issued in March 2009:
The Prosecutor raised three issues, but leave was only granted for one of them. It concerns whether the Pre-Trial Chamber erred in requiring that genocidal intent be the only reasonable inference from the facts as submitted in support of the application.
The Prosecutor admitted that he did not have any direct evidence of genocidal intent, but requested that the Chamber draw the conclusion that there are reasonable grounds to believe that genocidal intent existed from a joint analysis of those facts for which sufficient evidence to meet the evidentiary standard required for issuance of an arrest warrant was available.
Here is the relevant part of the decision:
CONSIDERING further that the Majority explained in the Decision that, under these circumstances, the law on proof by inference became applicable; and that according to this law, an inference can only be drawn if it is the only reasonable conclusion from the joint analysis of the facts proven by the Prosecutor;
CONSIDERING that the Majority did not suggest that, in order to establish the existence of reasonable grounds in relation to genocidal intent, the Prosecutor must show that the only reasonable conclusion from the facts proven by the Prosecutor is the existence of genocidal intent beyond reasonable doubt (article 66 of the Statute evidentiary standard);
CONSIDERING that, quite the contrary, the Majority only required the Prosecutor to demonstrate that the only reasonable conclusion from the facts proven by the Prosecutor is that there are "reasonable grounds to believe" in the existence of genocidal intent (article 58 of the Statute evidentiary standard);'
CONSIDERING that, nevertheless, the First Issue constitutes an issut' arising out of the decision if interpreted in the sense that the Majority -in applying the law on proof by inference due to the Prosecutor's exclusive reliance thereon -erred in requiring that the only reasonable conclusion from the facts proven by the Prosecutor be that there are "reasonable grounds to believe" in the existence of genocidal intent;
CONSIDERING that, in the Chamber's view, this issue affects the fairness of the proceedings insofar as, had the Majority erred in its determination, it "would have a direct and detrimental impact on the Chamber's ability to correctly assess the evidence;

Thursday 18 June 2009

Is 'Genocide' Over in Darfur?

Yesterday, I may have shocked some students who are taking our summer course on minority rights when I told them that I was perplexed at the lack of evidence of ‘genocide’ in Darfur, at least in the previous year or so. I was lecturing on genocide and, inevitably, the issue of the alleged 'genocide' in Darfur arose. Of course I agree with the Cassese report and the Pre-Trial Chamber of the International Criminal Court that genocide is not the proper legal qualifications of the atrocities that took place in Sudan earlier in the decade.
The Prosecutor of the International Criminal Court continues to argue that ‘genocide by attrition’ is taking place in Darfur. But the judges of the Pre-Trial Chamber, in the arrest warrant decision, found that the facts he presented were not entirely credible, and relied instead on reports from the High Commissioner for Human Rights that presented a more subdued image. As recently as two months ago, I heard the former Canadian justice minister Irwin Cotler calling for US military intervention in Sudan in order to stop the ‘ongoing genocide’.
Well, look what came in on the wire this morning, from the Washington Post:
UNITED NATIONS, June 17 -- President Obama's special envoy to Sudan, retired Air
Force Maj. Gen. J. Scott Gration, said Wednesday that the Sudanese government is
no longer engaging in a "coordinated" campaign of mass murder in Darfur, marking
a shift in the U.S. characterization of the violence there as an "ongoing
"What we see is the remnants of genocide," Gration told reporters
at a briefing in Washington. "The level of violence that we're seeing right now
is primarily between rebel groups, the Sudanese government and . . . some
violence between Chad and Sudan."
Gration's remarks come as the Obama
administration is finishing a review of its Sudan policy. The comments appeared
to expose an emerging rift between Gration and Susan E. Rice, the U.S.
ambassador to the United Nations, who accused the Sudanese leadership of
genocide as recently as two days ago.
For the whole story, see:
My own inquiries into this, especially with the Office of the High Commissioner for Human Rights, indicate that probably fewer than 1,000 civilians or non-combatants have been killed as a result of State or State-sponsored violence in the past year. In other words, quite possibly more civilians were killed in Gaza in one month by the Israeli Defence Forces than in a year by the Sudanese army. More Sri Lankan civilians were killed by government forces in a week than in a year by the Sudanese army. Why aren’t the humanitarian hawks calling for US military intervention in Israel?

New Decisionscand and a Whiff of Crisis at the International Criminal Court

Two new and significant rulings were issued this week by the International Criminal Court. Trial Chamber II dismissed a challenge to admissibility by the defence in Katanga et al.: It is currently available in French only, as are most of the decisions of the Trial Chamber to date. The Chamber finds that challenges to admissibility pursuant to article 19(4) must be made prior to the confirmation hearing, unless they concern the ne bis in idem issue. The Chamber provides what is probably the most developed attempt at interpretation of a provision in the case law of the Court to date.
The Chamber also rules that the ‘inactivity’ of the Democratic Republic of Congo is not inconsistent with the duty on States to bring perpetrators to justice which is set out in the preamble. The Chamber says that an inactive State that in effect defers prosecution to the Court rather than undertake it on its own is nevertheless in compliance with its obligations, providing that it transfer the person promptly to the Court and otherwise cooperates. This idea was first advanced, but only summarily, in Pre-Trial Chamber I’s decision in early 2006 on issuance of the Lubanga arrest warrant.
The other decision is the confirmation of the charges in Bemba: It has detailed and fascinating developments on the definitions of crimes and on the concept of command responsibility, which is discussed for the first time in the case law of the Court. It is particularly satisfying to see the reference, in footnote 446, to an article by one of our distinguished doctoral graduates, Mohamed Elewa Bader, who is now a lecturer at Brunel University in London: M. E. Badar, 'The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Law Perspective', 19 Criminal Law Forum p. 473.
at pp. 475-476.
I was in The Hague last week and picked up much discussion about what has become a real crisis for the Court concerning the composition of its Appeals Chamber. In March, following the swearing in of the five new judges, the plenary agreed upon the new composition of the Appeals Chamber, ‘elevating’ two judges from Pre-Trial Chamber I. There was a problem with this that was obvious to everyone: because the two judges had been sitting for several years on the Pre-Trial Chamber, they were ‘contaminated’ with respect to cases and situations that were already proceeding. In effect, they could only hear appeals concerning matters before the other Pre-Trial Chamber. It didn’t seem to make much sense at a practical level, and we can only speculate as to why this was done.
I was told that the Committee on Budget and Finance and the Assembly of States Parties both reacted with letters to the Court asking it to reconsider the decision. So the plenary of judges met again last Monday. They voted, by nine to seven, not to change their original decision. The two judges who were named to the Appeals Chamber voted and, presumably, made up the majority. Without them, the vote would have been seven to seven.
This entire business is not a healthy development at the Court. It reflects a group of judges who appear themselves to be divided in a way that cannot contribute to the spirit of collegiality that the Court requires in these difficult times. On the outside, it will increase frustration by the States that make up the Assembly of States Parties. At some point, if their requests to the Court are dismissed as this one was, they will be tempted to try more draconian measures, such as denial of funding or even threats to withdraw from the Statute altogether.
None of this is visible on the website, of course, but it is an open secret in The Hague. If you want to learn more about it, you only need to hang out in the bars and restaurants of the city for a few days, or better still, the Court’s own cafeteria.

Tuesday 9 June 2009

ICTY Manual of Developed Practices

The International Criminal Tribunal for the former Yugoslavia has just released its ‘Manual of Developed Practices’. It is a very useful and authoritative guide to practice at the tribunal, and it is available both in print form and in pdf:
The Manual indicates many aspects of Tribunal practice that are not generally visible in the reported judgments. Of course, there are also many references to cases.

Judicial Review of Security Council Blacklists

Abdelrazik v. Canada is a most interesting decision of the Federal Court of Canada, issued on 4 June 2009: It concerns a Canadian citizen of Sudanese origin who has been living in the Canadian embassy in Khartoum for some time. He cannot leave the embassy because of a fear of torture in Sudan, and he cannot return to Canada because the Canadian government refuses to issue him a passport. The Canadian government says it cannot facilitate his travel because Abdelrazik’s name is on a ‘no-fly list’ of the so-called 1267 Committee, established by the United Nations Security Council. Judge Zinn writes: ‘I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights.’ (at para. 51). The judge concludes that the Canadian government has badly interpreted Security Council Resolution 1267, and that this does not prevent Abdelrazik from returning to Canada. He orders that a travel document be issued. The Canadian constitution guarantees to all citizens the right to return to Canada. This is a great example of judicial review of the draconian regime set up by the Security Council in the name of counter-terrorism.
Thanks to Christopher Ryan.

Tuesday 2 June 2009

Direct Participation in Hostilities

The International Committee of the Red Cross today released its 'interpretative guidance' on the concept of direct participation in hostilities as it applies to the law of armed conflict:
This much-awaited report will hopefully help to clarify a difficult topic. It has been discussed in case law (see the Kupreskic trial chamber decision at the International Criminal Tribunal for the former Yugoslavia) and academic writing. But when the ICRC makes a pronouncement, it has a lot of authority.
Thanks to Beti Hohler

Monday 1 June 2009

Goldstone in Gaza

The Goldstone inquiry into war crimes committed during the recent conflict in Gaza has been denied access to the occupied territory via Israel, so it has gone to Gaza via Egypt. They will be conducting a one-week fact-finding mission on the ground:

Scandinavian Developments in Rwandan Genocide Prosecutions

Yesterday, Finland's State Prosecutor charged a Rwandan man with genocide. It is the first time the Finnish legislation on genocide will be applied. The trial will take place before a little district court in Porvoo, where the Rwandan man lived before he was arrested. The Rwandan man has been detained since April 2007 (the time period of detention without charges is normally not over three months in Finland). The defense attorney of the Rwandan man has claimed that some evidence against the Rwandan man has been obtained through torture. For more information, see e.g.,;;
And from neighbouring Sweden, a report that last week the Swedish High Court ordered the extradition of a genocide suspect to Rwanda to stand trial. Sylvere Ahorugeze was arrested in July last year in the Swedish capital Stockholm. Ahorugeze is a former director of the current Civil Aviation Authority and is accused of orchestrating killings in Gikondo, a Kigali suburb. Apparently, the decision is not subject to any appeal, but that a political determination is still required. Ahurugeze, who had been on an Interpol Red Notice, was first arrested in Denmark but was released over what Danish judiciary said was 'lack of incriminating evidence'.
According to news agencies, the verdict said that there were no legal obstacles preventing the accused to be extradited to Rwanda for trial. The Swedish court apparently considered the recent ruling of the British High Court denying extradition of four Rwandans from the United Kingdom.
There are also interesting developments within Rwanda, where legislation has been promulgated in response to the decisions of the International Criminal Tribunal for Rwanda. It will facilitate new applications by the Prosecutor of the International Tribunal to transfer cases to Rwanda. I'm still waiting on some more details. When I have them, I will post the details on the blog.
Thanks to Mikaela Heikkilä