Friday 28 August 2009

Baha Mousa Inquiry into Torture by UK Troops in Iraq

Last month, a public inquiry in the UK began into the torture and killing of Baha Mousa, who was a hotel worker in Iraq suspected of terrorism. Already, the British authorities have admitted that he was beaten to death, and have made a settlement with the family. The inquiry is examining the broader context. The initial statement notes the history of the use of torture by British forces in various contexts, including Ireland, as well as Palestine, Cyprus, Aden, Kenya, Malaysia and so on. The transcripts make fascinating reading:
We are thinking of making a submission to the inquiry on behalf of the Irish Centre for Human Rights.

Tuesday 25 August 2009

Megrahi Release: Let Mercy Season Justice

The release of convicted Lockerbie bomber Megrahi to Libya has provoked varied responses. What is the human rights approach to this?
Geoffrey Robertson, author of Crimes Against Humanity and former President of the Special Court for Sierra Leone, described Megrahi in The Guardian last week as an ‘unrepentant mass murder’ and condemned the release by Scottish authorities.
Another viewpoint comes from Sir Christopher Greenwood, who started a nine-year term as judge at the International Court of Justice in February of this year. I’ve been attending a conference at the National University of Mexico with Judge Greenwood. Yesterday, in response to a question, he pointed out that Scotland was only following its laws, which mandate release on compassionate grounds in a case such as that of Megrahi where the man is about to die of cancer. The Scottish authorities are not authorised by law to consider other factors, such as the gravity of the crime or the victims. Nor is the alleged innocence, or certainty of guilt, a factor in the determination of compassionate release. Judge Greenwood said it all made sense to him, and I agree.
Let me add that when they agreed to the trial of the two Lockerbie defendants, the Americans must have been aware of relevant Scottish law. What they seem to be asking for, in their complaints about the releases, is for Scottish authorities to violate their own laws.
Compassion is part of human rights. Someone who violates human rights does not forfeit their entitlement to our compassion. That’s why we campaign for the abolition of the death penalty, and the prohibition of torture, even for those who ‘deserve it’. Of course, it is too bad that the Libyan authorities tried to put their own spin on this, but their bad behaviour, which is no doubt very painful for the victims, is not a reason to deny Megrahi a touch of compassionate as he is about to die.

Sunday 16 August 2009

Rwanda Tribunal Symposium and Victor's Justice

Early in July, the Geneva Academy and the International Criminal Tribunal for Rwanda hosted a round table that basically consisted of an appraisal of the work of the Tribunal. Many of the individuals who have contributed to its success were present, including the two previous prosecutors (Carla del Ponte, Hassan Jallow), defense counsel, judges and academics. Court reporters make a record of the proceedings, which are now available:
I spoke in the final session, which was reserved for academics (we were required to keep quiet until then, which was quite a hardship). In my remarks, I addressed what I found to be an undercurrent of criticism at the conference that the Tribunal had not completed its work because it had not prosecuted the Rwandese Patriotic Front cases. In fact, the whole meeting began to look like a bit of an ambush for Prosecutor Jallow, with politicised anti-Kagame academics and human rights activists leading the campaign for the RPF prosecutions. As I explained in my remarks, which are posted on the Tribunal website, I am very far from being convinced that the lack of prosecutions of the RPF cases indicates a failure of the mission of the Tribunal.
One hears a lot of cliches about the fact that you can only have reconciliation if both sides are prosecuted. There were regular references at the conference to the alleged shortcomings of Nuremberg in this respect. I don't think that the 'failure' to prosecute the allies evenhandedly was a 'shortcoming' of Nuremberg, nor do I think there is any real evidence that it created an insurmountable obstacle to 'reconciliation'.
There is, of ocurse, the argument that prosecution of one side politicises the Tribunal, and that this sours its judicial mission. I don't get that argument either. Especially because many of those who are arguing for prosecuting 'the other side' have a rather obvious political agenda themselves. They want to weaken and even overthrow Rwandan President Kagame, and one of the ways to undermine him is the threat the his close collaborators and perhapes he himself will face the music before the international tribunal. Thus, a political campaign gets dressed up in the clothes of 'neutral justice'.
You can see the same thing at Nuremberg, by the way. The biggest proponents of the 'victor's justice' critique of Nuremberg are the holocaust deniers, with David Irving at the helm. His big books involve attacks on the Nuremberg trial, and an attempt to demonstrate that the bombing of Dresden in February 1945 was a terrible war crime analogous to anything the Nazis perpetrated. That's just not true. But such lies sell well in some quarters, just as the claim that RPF crimes, which allegedly resulted in 25,000 deaths in what were mainly revenge or reprisal killings, are in some way equivalent to the genocide of Tutsi that resulted in 800,000 deaths.
Of course there is a sense in which all such crimes are equivalent. The victims of these atrocities - and I am not gainsaying that Dresden and the RPF reprisals were not atrocities - suffer every bit as much. For that matter, it is hardly the concern of a victim whether they suffer as a result of genocide or a garden-variety murder. But obviously other concerns are afoot when we are dealing with international criminal justice. It is widely accepted that the international tribunals also have a mission to develop and confirm the 'historical truth'. Isn't that really what the debate is about? Some think the historical truth of World War II is of a number of morally equivalent powers fighting for control of territory. By that reading of history, the Americans and British were just as evil (or as good) as the Nazis. Similarly, some think the historical truth of Rwanda in 1994 is a civil war between Hutu and Tutsi in which there were comparable numbers of victims and atrocities on both sides. I don't agree, obviously. In establishing the 'historical truth', the international tribunals necessarily emphasise the atrocities of one side rather than the other. I think this is generally a positive contribution that they make, and not a negative feature, as has been argued. This is all part of the 'victors' justice' debate, about which I have written on this blog on many occasions. I am increasingly convinced that it is an empty slogan, based upon unproven hypotheses and a lot of conjecture.

Changed circumstance for Bemba?

VC Lindsay, who is a regular contributor to this blog, writes in response to yesterday's posting about the decision on interim release in the Bemba case that the recent confirmation hearing decision constitutes a 'changed circumstance' justifying revision of the earlier decisions to detain the accused pending trial. This prompts several observations.
Unless I missed something in the decision of Judge Trendafilova, she did not offer this as a reason justifying revisiting the issue. Her ruling refers to the argument, which was presented by the defense. But she does not endorse it.
It is an intersting argument, because it is rooted in the idea that command or superior responsibility liability (article 28) is not as serious as 'regular' perpetrator liability (article 25). I've always been a bit partisan to that argument, because sentences at the ad hoc tribunals have tended to be quite low in the case of command responsibility convictions (Strugar, Hadzihasanovic). Superior responsibility is a negligence-type offence, and in most justice systems that makes it less serious than one of genuine intent. But there are a couple of recent exceptions at the Rwanda Tribunal (Nahimana in the appeals chamber, one of the defendants in Bagosora) to suggest this isn't always the case. Anyway, arguing that a defendant becomes eligible for interim release because the offense (for which the Pre-Trial Chamber has just found there are 'substantial grounds') is 'less serious' hardly makes sense before a Court that is only supposed to be prosecuting 'the most serious crimes of concern to the international community'. If it isn't serious, then the accused shouldn't be there in the first place.
The other issue of interest is the scope of the inquiry with respect to interim release. Article 60(2) of the Statute refers to the issues in article 58(1), which include both 'reasonable grounds' that the accused committed the crime (art. 58(1)(a) and the grounds justifying an arrest warrant and, therefore, pre-trial detention (art. 58(1)(b)). I'm pretty sure the drafters misspoke here, and that they really only thought that the issues concerning the need for pre-trial detention (danger of absconding, harassment of witnesses, etc.) should be addressed in an application for interim release. It shouldn't be the place for a debate about the merits of the case. But the Court has consistently taken article 60 literally, and held that on an application for interim release the suspect can also challenge the 'reasonable grounds' that underpin the charges.
The reason why this doesn't make sense is that if the accused person succeeds with the argument that there are no 'reasonable grounds', the remedy is not interim release. If there are no 'reasonable grounds', the case collapses and the charges should be quashed altogether. The other reason why it makes no sense is that this argument (and the remedy) is apparently only available to a person against whom an arrest warrant has been issued, and not someone against whom there is a summons to appear. That can't be reasonable, and it can't be fair. The person summoned to appear before the Court should have just as much right to challenge the 'reasonable grounds' for the charges.

Saturday 15 August 2009

Interim Release of Bemba at the ICC

Judges Trendafilova of Pre-Trial Chamber II of the International Criminal Court yesterday issued a bold decision granting interim or conditional release to Jean-Pierre Bemba, against whom charges of war crimes and crimes against humanity were confirmed by the Pre-Trial Chamber in June: A Single Judge of a Pre-Trial Chamber may rule on interim release. The Prosecutor opposed the application, as did victims and their representatives, and an appeal would seem likely.
Bemba has been in custody for more than a year, and three earlier applications for interim release were dismissed. An application for interim release is to be based upon ‘changed circumstances’. Really, Judge Trendafilova’s ruling indicates very little in terms of changed circumstances. Rather, it is a reassessment of the facts and the likelihood that Bemba will appear for trial.
It seems that Bemba still has to find a country that will accept him. He is not simply released from the Detention Unit in The Hague, and allowed to roam around throughout the Schengen zone. The Judge has convened a series of hearings with European States in early September for the purpose of finding a place where Bemba can reside during the proceedings.
Article 9 of the International Covenant on Civil and Political Rights makes interim release the rule. It is a corollary of the presumption of innocence. But of the ad hoc tribunals, only the International Criminal Tribunal for the former Yugoslavia has granted motions for interim release. This is the first successful motion at the International Criminal Court. It is a generous one, that sits on the fault line between the fundamental rights of the defendant and the imperatives of international criminal justice. It will be interesting to see how the international human rights NGOs weigh in on this decision.
Obviously, a lot of individual judgment is involved in such a decision. Judge Trendafilova must have her own intuition, and we can hope she is right here. But what does this mean in terms of consequences for the other three defendants who are in custody. Do not the same criteria that Judge Trendafilova has applied to Bemba also pertain to them? Probably there will be a flurry of defense applications from the other accused in the days to come.

Thursday 13 August 2009

Lubanga: Recharacterisation

The Trial Chamber of the International Criminal Court hearing the Lubanga case issued a decision on 14 July on the possible 'legal recharacterisation' of the facts to include five new crimes of sexual slavery, among others: Dov Jacobs has written a comment on the decision:
Thanks to Joe Powderly and Dov Jacobs.

Africa and the International Criminal Court

Charles Jalloh, now a young professor at the University of Pittsburgh, has published a thoughful article on African and the International Criminal court:; Charles has been involved in the African Union negotiations, and has many interesting insights.

Hiroshima and Nagasaki

I'm about a week late on this one. I've been having a lovely visit from my grandsons at our home in Oughterard, in the west of Ireland, and I hope readers of the blog will forgive me for taking a few days off. Daniel Ellsberg became a household word back in the 1970s when he became the pariah of the American right for releasing the so-called 'Pentagon papers'. He was personally targetted by Richard Nixon and his 'dirty tricks' department. I've had the privilege of getting to know Dan a bit a the marvellous weekend seminars organised by Robert J. Lifton at his home on the Cape Code dunes. Dan has written an interesting piece about Hiroshima on his blog: He promises much more to come.
Do any readers have comments on the legal qualification of the bombing of Hiroshima and Nagasaki? Robert McNamara, who passed away a few months ago, wrote that had the Americans lost the war, he and others would have been prosecuted for war crimes by the Japanese. If the 'international community' puts its energy behind prosecuting atrocities committed in Cambodia in the 1970s, why not do the same for atrocities committed in Japan in the 1940s? I ask the question, without proposing an answer. Observations on this would be welcome.

Thursday 6 August 2009

Costs of the International Criminal Court

Guénaël Mettraux, who has been working at the international criminal courts for many years, and who is one of the more distinguished (and successful) defense counsel, as well as a prolific author, has written a very challenging piece about the costs of the International Criminal Court. He says we are not getting our money's worth! See:
Thanks to Deirdre Montgomery.

Tuesday 4 August 2009

Portal on Business and Human Rights

The Business and Human Rights Resource Centre has launched a launched portal for all materials relating to the work of the United Nations Secretary-General’s Special Representative on business & human rights, Professor John Ruggie.
The portal is at and can also be reached via the Resource Centre homepage. It includes all the Special Representative’s reports, papers and speeches; material on his consultations with stakeholders; and diverse commentaries about his work.

Mass Commutation of Death Sentence in Kenya

In what is very likely the largest commutation of death sentences in modern history, the President of Kenya has announced that all death row inmates will not be executed and that their sentences will be commuted to life imprisonment. Here is the official statement:
President Kibaki, upon the advice of the Constitutional Advisory Committee on Prerogative of Mercies said no death sentence has been carried out in the country for the past 22 years, leading to an accumulation of over 4,000 convicted prisoners on death row in Kenyan prisons.
He explained that the law does not permit prisoners on death row to be gainfully or productively utilized by the prison authority, thus leading to idleness and subsequent negative impact on prison discipline, as recently witnessed in some facilities.
The decision further took into consideration that extended stay on death row causes undue mental anguish and suffering, psychological trauma, anxiety, while it may as well constitute inhuman treatment.
The president directed all relevant government ministries and departments to conduct empirical studies urgently to determine whether the continued existence of death penalty in the laws of the land has any value or impact in the fight against crime.
Thanks to Mark Warren.