Wednesday 30 September 2009

Lisbon Treaty Will be Good for Human Rights

The Lisbon Treaty strengthens and enhances the protection of the human rights of the people of Ireland. One of the central functions of the Lisbon Treaty is to make the European Union Charter of Fundamental Rights legally binding. The European Charter brings political, civil, economic, social and cultural rights together into a single and concise document. It may be the most advanced human rights declaration ever drafted.
Far from threatening our fundamental rights, as critics of the Lisbon Treaty have suggested, the Charter builds upon the European Convention on Human Rights, which dates back to 1950. Whereas the European Convention is mainly limited to the more classic civil and political rights, like freedom of expression and the prohibition of slavery and torture, the Charter covers other areas, such as the right to good administration, the rights of the disabled, the social rights of workers, the right to a clean environment, the protection of personal data and bioethical rights.
But even in the area of civil and political rights, it is a very progressive document. Compare the European Convention on Human Rights, which actually authorises the use of capital punishment (remember, it was drafted 60 years ago), with the new EU Charter, which not only prohibits capital punishment but even forbids the extradition or transfer of persons to other countries where this might take place.
All Bills of Rights use broad language, and the EU Charter of Fundamental Rights is no exception. It is in their nature. This is a valuable feature, because it enables them to be interpreted in an increasingly expansive manner over time, as attitudes and values evolve. Strangely, the broad language has been used by critics of the Lisbon treaty to concoct scenarios and interpretations that have more to do with fantasy than reality.
The Lisbon Treaty makes clear that the provisions of the Charter shall not extend in any way the powers of the EU as defined in the relevant treaties. The fact that certain Charter rights concern areas in which the EU has little or no competence (for example, the death penalty or the right to strike) to act is no contradiction. Although the powers of the EU are limited, it must avoid even indirect interference with all fundamental rights.
Fundamental rights guaranteed by national constitutions are merely complemented, not superseded by the Charter. The Charter will certainly apply to EU institutions. But it only applies to the Member States when they implement EU law. This is not reflective of some sinister centralist agenda but rather a salutary commitment from Brussels to respect fundamental rights in all aspects of its activities. How can this possibly be harmful? It strengthens our protections and fundamental guarantees.
It is also seriously misguided to argue that the EU Charter might weaken fundamental rights because its protections are allegedly inferior to those of the European Convention on Human Rights or our own national constitution. As amended by the Lisbon Treaty, the new Article 6 specifically provides that fundamental rights, as guaranteed by the European Convention and as they result from the constitutional traditions common to the Member States, will continue to constitute general principles of EU law.
The ‘Solidarity Section’ of the EU Charter contains articles relating to workers’ rights to information and consultation, health care or access to services of general economic interest. There is nothing really new here; such rights are already guaranteed by EU law. However, the fact that such economic and social rights are now described as ‘fundamental rights’ ought to be welcome. EU courts will have to take them into account when interpreting EU legislation, and they will undoubtedly percolate down to the Irish courts too, if history is any guide.
The preposterous view that the EU Charter could be used to challenge Ireland’s anti-abortion legislation has circulated in the debate. Yet in countries such as France, the same argument has been put, but in reverse. It is contended that by proclaiming that ‘everyone has the right to life’ the EU Charter will prohibit abortion. Neither view deserves to be taken seriously. The text in the Charter merely reflects similar words in the European Convention on Human Rights, which has been applied in Ireland for the past sixty years. The EU Charter will change nothing with respect to Ireland’s abortion laws.
The EU Charter of Fundamental Rights, which is part of the Lisbon Treaty package, is a progressive addition to existing legal protections. We may not all feel confident that we understand many of the complex legal provisions that appear in the Lisbon Treaty. But every citizen can grasp the meaning and scope of the EU Charter. The language is straightforward, innovative, and even poetic at times. Any plain reading makes clear how desirable it is that the text be adopted. No hidden agenda, ambiguity or subterfuge lurks behind the words. It is a good reason to vote yes in the referendum.

Laurent Pech, Jean Monnet Lecturer in EU Public Law
William Schabas OC MRIA, Professor of Human Rights Law
National University of Ireland, Galway

Sunday 27 September 2009

A Major Complementarity Ruling by the Appeals Chamber of the International Criminal Court

The Appeals Chamber of the International Criminal Court has issued an important ruling on admissibility that interprets the scope of article 17 of the Rome Statute: The accused, Germain Katanga, had argued that the case was inadmissible because the Democratic Republic of the Congo was merely inactive, and not unable or unwilling. The Appeals Chamber said:

Such an interpretation is not only irreconcilable with the wording of the provision, but is also in conflict with a purposive interpretation of the Statute. The aim of the Rome Statute is ‘to put an end to impunity’ and to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’. This object and purpose of the Statute would come to naught were the said interpretation of article 17 (1) of the Statute as proposed by the Appellant to prevail. It would result in a situation where, despite the inaction of a State, a case would be inadmissible before the Court, unless that State is unwilling or unable to open investigations. The Court would be unable to exercise its jurisdiction over a case as long as the State is theoretically willing and able to investigate and to prosecute the case, even though that State has no intention of doing so. Thus, a potentially large number of cases would not be prosecuted by domestic jurisdictions or by the Intemational Criminal Court. (para. 79)

I am puzzled by the penultimate sentence of this paragraph, which speaks of a state being ‘theoretically willing … even though that State has no intention’. But if a State has no intention of prosecuting, surely it is unwilling.
The issue seems to be a direct result of the so-called self-referrals before the Court. When Congo refers a situation to the Court and cooperates in prosecutions, it is in a sense ‘willing’, and therefore under article 17 the case might be deemed inadmissible. In effect, what it is doing is consenting to the jurisdiction of the Court. It is ‘willing’ for the accused to be prosecuted, but ‘unwilling’ to do this before its own courts. However, rather than describe this as a sign of ‘unwillingness’, the judges have preferred to call it ‘inactivity’. Possibly this is considered to be less pejorative.
But going back to self-referral (under article 14), the whole point of requiring referral of a situation rather than a case was to prevent a State party from targeting an individual for prosecution. This was considered to be incompatible with fair justice. But by allowing a State to make a case admissible merely because it is ‘inactive’, the Court effectively allows this result. The State can target an individual for prosecution by its inactivity. It can do indirectly what it is not supposed to do directly.
The real problem here is that we are trying to sort out an interpretation of article 17 that is a consequence of a distorted application and interpretation of article 14. If self-referral had not been allowed at the outset, probably these difficulties in applying article 17 would not have arisen. When article 17 was drafted, the idea of 'self-referral' was not seriously entertained. It is meant to apply to genuine referral, by one State against another, rather than the consensual relinquishment of jurisdiction by a State in favour of the International Criminal Court.
It is quite gratifying to see the importance that the Appeals Chamber attaches to a recent monograph on the question of complementarity: Mohamed El Zeidy, The Principle of Complementarity in International Law ( which appeared last year. El Zeidy’s book is largely based on the PhD thesis that he defended at the Irish Centre for Human Rights two years ago. He is now working as a legal officer in Chambers at the International Criminal Court.
Thanks to Joe Powderly.

Friday 25 September 2009

More Genocide Hyperbole: This Time, Charges of Soviet Genocide in Poland During the Second World War

This is the latest example of exaggerated and inappropriate use of the term 'genocide'. The Polish parliament has adopted a resolution condemning the Soviet Union’s invasion of Poland in 1939 and the Katyn massacre of approximately 20,000 Polish military leaders in 1940: According to the resolution: ‘The Gulag archipelago took millions of human lives, including those of many Soviet citizens . . . the organisation of the system, its duration and degree mean that these crimes, including the Katyn crime, carry the traits and characteristics of genocide.’
Charges of genocide leveled against the Soviet Union have been made for many years with respect to famine-related deaths in Ukraine associated with collectivization. But this is the first time I’ve seen the accusation made with respect to Poland. I suspect that Raphael Lemkin, the Polish-Jewish jurist who invented the word genocide in 1944, is turning in his grave at this extravagant use of the term.
The resolution is part of a more general phenomenon of historical revisionism being promoted in several countries in eastern Europe. I have already written on more than one occasion on this blog about the prosecutions of so-called 'flip-side' crimes committed by anti-Nazi partisans during the war.
I was impressed by a recent column in The Guardian by Seumas Milne: Milne describes the Soviet seizure of half of Poland as an act of realpolitik that was provoked by British appeasement of Hitler. He associates recent attempts to equate the Nazis and the Soviets with the rise of right wing movements in Eastern Europe and the spread of racism: ‘As the political heirs of the Nazis' collaborators in eastern Europe gain strength on the back of growing unemployment and poverty, and antisemitism and racist violence against Roma grow across the region, the current indulgence of historical falsehoods about the second world war can only spread this poison.’

Monday 21 September 2009

Bosnia and Herzegovina: Dealing with the Backlog of Cases

The Forum for International Criminal and Humanitarian Law of the Oslo-based International Peace Research Institute has just published a booklet available in pdf on the internet, on dealing with the backlog of international crimes in Bosnia and Herzegovina:

Sunday 20 September 2009

Political Changes in Japan may be Death Knell for Capital Punishment

The appointment of Keiko Chiba as Japan's new justice minister has the effect of imposing a moratorium on the death penalty. She has been an active opponent of capital punishment for many years. See: Under Japan's system of secret executions, prisoners wait on death row, usually for many years, and are only told that they are to be executed on the day of the hanging. Families are informed after the execution. See the Amnesty International report on the subject issued last week: Aside from the United States, Japan is the only developed country to retain the death penalty. For many years it has only been rarely imposed, but in the last few years there has been a real spike in executions. The recent political developments in Japan change all that.
Thanks to Eadaoin O'Brien.

Naomi Klein on the Durban II Conference

The ‘Durban II’ Conference, held in Geneva last April, seems so long ago now. I attended the opening session, and then spent the week in Geneva picking up news and gossip about what was going on. The best account I’ve read about Durban II (known as the ‘Durban Review Conference), and about Durban I (known as the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance), and the background for the debate, is by Naomi Klein in the September 2009 issue of Harper’s. Unfortunately, you have to subscribe to get the article, or find it on a newsstand, and I cannot give you the text here (see You can get a idea of the content on Klein’s blog (, which reproduces the announcement from the Harper’s press office:
Reporting from Geneva, Naomi Klein, a contributing editor to Harper’s Magazine, reveals the grudges and absurdities of Durban II, the follow-up convention to the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, which took place in Durban, South Africa, in 2001. Such issues as reparations for slavery—and the correction of other immense historical imbalances resulting from colonialism and racism—are overshadowed, in the months leading up to the conference, by supporters of Israel, who seize on fears that the conference will promote an anti-Israel and anti-Semitic agenda. In reality, the U.N. goes to great lengths to ensure the neutrality of the proceedings, but the objections reduce Durban II to an event that nobody (except anti-Israel crusader Mahmoud Ahmadinejad) wants to touch, and the bare-knuckles fight seems convincingly won. Meanwhile, U.S. public-policy activists report the word that the White House is interested only in hearing about projects that are “race neutral”—and not in anything that targets disadvantaged constituencies. Which all leads to the question of whether the relatively thin charge of anti-Semitism was, for many developed nations, an excuse to avoid Durban II’s questions about what the rich countries of the world might reasonably owe on their debts to the peoples they once exploited. Klein pays particular attention to the Obama Administration’s legislative inaction on racial issues—and what it means for all of us.
The article very clearly points to the enormous distortion promoted by some pro-Israel NGO activists, politicians and journalists. These were in turned exploited by governments that wanted to avoid the profoundly important consequences of putting racial discrimination at the centre of the agenda of the United Nations. In effect, one of the great racist atrocities of all time – the Holocaust – was invoked to sabotage efforts to address the consequences and the aftermath of one of the other great racist atrocities of all time – the African slave trade.
All of this sits within the debate provoked by former President Jimmy Carter’s statement earlier this week that the venom in the recent attacks on Obama are driven by racism ( Carter is a wise old man, and his observations on politics in the United States are usually right on the mark, as they are in this case. Of course, Obama himself can’t say such things, and the White House has issued some predictable statements that disagree with Carter. But what Carter said needed to be said.
A few days later, we had more insanity from Iran’s President Ahmadinejad, who apparently said in a speech at Tehran University that ‘The pretext [the Holocaust] for the creation of the Zionist regime [Israel] is false. It is a lie based on an unprovable and mythical claim.’ ( I don’t see any need to discuss the absurdity of such statements here, and I hope that nobody will accuse me of promoting Holocaust denial by reproducing his words for the purposes of illustration. Ahmadinejad’s own government agreed, at Durban, to a consensus document that included the following: ‘Recalls that the Holocaust must never be forgotten, and in this context urges all Member States to implement General Assembly resolutions 60/7 and 61/255…’ (para. 66; see
In my view, racial discrimination has always been and remains the human rights issue, par excellence. The very first human rights convention adopted by the United Nations, on 9 December 1948, only a few hours before the adoption of the Universal Declaration of Human Rights, dealt with the supreme racist crime of genocide. Over the years, critics of the alleged shortcomings of the Convention for the Prevention and Punishment of the Crime of Genocide have faulted its limited scope, but I don’t agree. It is true that the Convention only applies to ‘national, ethnical, racial and religious groups’. Some say it should also cover political groups, or economic and social groups, or gender groups, and so on. However, the debate is not that victimization of such groups should not be addressed by human rights law, or by international criminal law. All of these other groups are now adequately protected by the prohibition of crimes against humanity, and by various other human rights treaties. But that the first human rights treaty dealt with the intentional physical destruction of national, ethnical, racial and religious groups underscores the centrality of the issue of racial discrimination at a seminal phase in the development of human rights law, in the late 1940s.
This is easily explained and understood by the immediate political context: the revelations of the scope of the intended destruction of the Jews of Europe by the Nazis. But there were other important factors that contributed to the context of the adoption of the Genocide Convention and the Universal Declaration of Human Rights, such as the ongoing apartheid and apartheid-like regimes in southern Africa and in the United States. The period also marked the beginnings of decolonization, and this merely heightened the perception that the perverse origins of the Nazi Holocaust lay in the falsehood that one racial or ethnic group was superior to another.
How troubling, then, that sixty years later has become so difficult for the United Nations to hold a mature, thoughtful and productive conference on the subject of racial discrimination. To return to Naomi Klein’s article in Harper’s, several actors deserve the blame for the problems: Israel and its friends, who have manipulated the truth about the nature of the work of the United Nations by gross exaggeration of the role and intervention of certain fanatics; western States, like Canada and the United States and those of Western Europe, that love to talk about ‘accountability’ for atrocities when they take place in Cambodia or Bosnia or Sierra Leone but that loath the idea that we continue to address the impact of slavery, the slave trade, colonialism and the destruction of aboriginal peoples; and provocative politicians like Mohamed Ahmadinejad, who in desperation make absurd statements that probably deserve to be ignored rather than exaggerated.
Thanks to Ezra Schabas and Tara Smith.

Tuesday 15 September 2009

Goldstone Report Finds War Crimes, Crimes Against Humanity in Gaza

The Fact Finding Commission appointed by the Human Rights Council and provided over by Richard Goldstone issued its report a few minutes ago:
The lengthy report - more than 400 pages - is too long and complex to summarise adequately. It makes many findings of violations of intenrational humanitarian law by participants in the conflict.

Hartmann Convicted of Contempt of the Tribunal

Yesterday, a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia convicted Florence Hartmann of contempt of court with regard to the publication of her book Paix et Châtiment. The website of the tribunal only has a summary of the ruling, but here is the full judgment:
Guènaël Mettraux, her defense lawyer, promises a 'robust appeal'. It cannot be excluded that this case might also find its way to the European Court of Human Rights, in Strasbourg, given the issues it raises with respect to freedom of expression.
Hartmann was sentenced to a fine of EUR 7,000, which is a useful guide to the overall gravity of the offence. I was never convinced that the Tribunal should even deal with such cases. After all, its jurisdiction is confined to serious violations of humanitarian law committed on the territory of the former Yugoslavia. Publishing a book in Paris hardly fits within that remit. The judges argue that this is an inherent jurisdiction, one that is necessary to ensure the administration of justice. But they might just as well have agreed with the Dutch authorities that contempt and similar matters be dealt with by national courts, something that was seriously entertained many years ago by the International Law Commission. At present, the Yugoslavia devotes a considerable amount of its resources to prosecution of contempt cases. The money might be better spent. The argument that this is necessary in order to deter violations doesn’t convince. The Trial Chamber referred to deterrence in imposing the fine. I doubt that a EUR 7,000 fine is a serious deterrent.
Thanks to Joe Powderly and Guénaël Mettraux.


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Sunday 6 September 2009

Execution of the Innocent: A Clear Case from Texas

One of the most potent arguments against capital punishment in recent years has been the execution of the innocent. Even strong advocates of the death penalty recoil at the idea that this may involve killing the wrong person. Many have joined the abolitionist camp not out of ‘principled’ opposition to capital punishment but because of their concern that the justice system, as it now functions, is not reliable enough. We know, for example, that in the United States (and presumably elsewhere), those who are sentenced to death and executed are generally those who had an inadequate defense.
But to date, the best we have been able to come up with are cases of people who were determined to be innocent during appeals or post-conviction review proceedings. When their circumstances became clear, the death penalty advocates answered: ‘You see, the system works. We identify the innocent before we carry out the executions.’
Now, it seems, there is a clear case that Texas executed an innocent man. It is discussed in a fascinating article in the latest issue of the New Yorker.
Meanwhile, last month the United States Supreme Court issued a decision ordering an evidentiary hearing into claims of innocence by Troy Davis, who is sentenced to death in Georgia. Many witnesses in the Troy David case have recanted, and there is at the very least an arguable case for his innocence. According to the majority ruling, authored by Justice Stevens: ‘The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.’ See: Justice Scalia dissented and would have denied Troy Davis the opportunity to prove he is innocent: ‘This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.’ See:
Thanks to Jean-Marie Henckaerts, Nadia Bernaz and Megan Fairlie.