Tuesday 30 March 2010

Annual Death Penalty Survey from Amnesty International

Amnesty International today released its annual survey on use of the death penalty. According to Amnesty International, although 58 countries retained the death penalty in 2009, most did not use it. Only eighteen countries were known to have carried out executions, killing a total of 714. More than 500 of these are attributed to Iraq, Saudi Arabia and the United States. The United States was the only country in the western hemisphere to conduct executions. In sub-Saharan Africa, only Sudan and Botswana imposed the death penalty. Two more countries, Togo and Burundi, abolished the death penalty during 2009.

Saturday 27 March 2010

The International Criminal Court on a Wobbly Bicycle?

Earlier this week, a short resumed session of the Assembly of States Parties of the International Criminal Court took place in New York City. Its function was to make final preparations for the Review Conference, to be held in Kampala over the first two weeks of June. A report was issued, but it does not yet seem to be on the website.
I didn’t attend the meeting in New York city, but have spent the last couple of days at the Annual Meeting of the American Society of International Law, where it seems many of the players at the Assembly of States Parties decamped to once their session was over.
On Thursday night here in Washington, the Legal Adviser to the Department of States, Harold Koh, gave a major speech that included important comments on the position of the United States with regard to the agenda of the Review Conference. In a memorable metaphor, Harold described the Court as a 'wobbly bicycle'.
Then, this morning there was a panel featuring Christian Weneweser, who is the president of the Assembly of States Parties, Béatrice le Frapper, who is an aide to Prosecutor Moreno-Ocampo, Ambassador Steve Rapp, war crimes ambassador for the United States, and Bill Pace of the Coalition for the International Criminal Court.
The plan for the Review Conference is to devote the first four days to ‘stocktaking’, which what is called a ‘high level segment’ involving speeches by ministers, heads of State and the like. There seems to be some genuine effort to make the ‘stocktaking’ more than a mere exercise in public relations for the Court. Nevertheless, there is considerable resistance to any serious attempt to come to terms with the problems that have troubled the Court over its first seven or eight years of operation. The spokesperson for the Prosecutor, for example, used terms like ‘celebration’. But perhaps there should be more self-criticism and introspection, given that the Court, and the Prosecutor, have not met the targets they have themselves set in terms of holding and completing trials.
The remaining days of the Conference will address the various amendments that are proposed. The first issue – the only one that must necessarily be considered – is article 124, labeled a ‘transitional provision’. The trend seems to be to simply leave it alone. The second involves changes to the war crimes provisions dealing with prohibited weapons, so as to make them applicable to non-international armed conflict. This is not as important as it might seem, because it mainly covers rather archaic weapons, such as hollow bullets and poisoned spears, which are of little importance in modern-day armed conflict.
And then there is the big issue, aggression. My sense is that it is quite unlikely at this point that the Court will be able to prosecute the crime of aggression anytime soon. There are two clusters of issues, the definition of the crime itself and the modalities of its prosecution by the Court. The former is not so difficult, and some delegations seem to be pushing for the idea of adopting a definition and then leaving the other issue for the future. That would be putting a brave face on failure, I think. Already, in 1998, there was such a half-baked solution in the reference to aggression in article 5(1) but in such a way as to prevent prosecution of the crime. The proposal to adopt a definition and nothing more is only a more sophisticated version of the gimmick employed in 1998.
The hard part is the modalities of prosecution. This is sometimes called the ‘jurisdictional issue’ but it is really about triggering the jurisdiction of the Court. After a decade of work by the Special Working Group, a menu of proposals emerged. They can be distinguished by the varying degrees of warmth or hostility to the Security Council. Hoping to resolve this at Kampala, some enthusiasts for the crime of aggression seem willing to compromise on the most Security Council-friendly approach. This would be a big mistake. The Court’s success has been due to its ability to take its distance from the Security Council. At Rome, in 1998, many States would have been happy to make the separation even clearer, by simply omitting the provisions that became articles 13 and 16. Finally, there were compromises. But adopting provisions on aggression that are too deferential to the Security Council will tilt the Court in a direction that many States will find unpalatable.
After being largely absent from the debate for many years, the United States is returning at strength, and plans to be a big player in the negotiations at Kampala. Although Harold Koh and Steve Rapp express the positions with courtesy and in a manner that communicates their support for and commitment to the Court, what emerges from their remarks is the view of the United States that it would be desirable to put all of the aggression business on the shelf. Return to it sometime in the future, they are saying. On Thursday, Harold Koh described the Court as ‘a wobbly bicycle that is finally starting to move forward’, and asked whether the crime of aggression might be ‘frankly more weight than the bicycle can bear’.
It’s a bit of Rome redux. Twelve years ago, the United States pressured and cajoled and threatened,, on a range of issues. Did it finally get its way? Well, the United States voted against the Rome Statute, yet the text was covered with its fingerprints. Kampala may be different, because the debate is focused on a single issue. Battle lines are being drawn. After years of silence, the United States has decided to stake out its positions. Over the next two months we shall see whether it is more or less influential than it was in 1998.

Summer School on Cinema, Advocacy and Human Rights

For several years I have been involved in a summer school on cinema and human rights, organized by the European Inter-University Institute in Venice. Last year the Institute decided to drop the programme, and we have picked it up in Galway. The Irish Centre for Human Rights and the Huston Film School of the National University of Ireland, Galway, will offer a one-week programme on cinema and human rights in late August 2010. For more information.

Wednesday 17 March 2010

Unsigning the Covenant

On Monday of this week, I ran an item on this blog about the date of signature of the International Covenant on Civil and Political Rights by China. Yesterday, the United Nations changed the date of signature of China on its treaty database. The entry now reads 5 October 1998, which is the date of signature by the People’s Republic of China. There is a footnote indicating: ‘Signed on behalf of the Republic of China on 5 October 1967.’ I'm glad to see that they are reading the blog!
Many of us laughed in 2002 when the Bush administration (and Israel) purported to ‘unsign’ the Rome Statute. But that seems to be what the Secretary-General of the United Nations has done with respect to the ‘Republic of China’.
Withouit wanting to be overly technical, one could argue that the People's Republic of China was bound as signatory to observe certain obligations (art. 18 of the Vienna Convention on the Law of Treaties) because when it took the Chinese seat in the United Nations it in a sense inherited the rights and obligations associated with China, like membership in the Security Council, but also duties as a signatory of the Covenant. The Secretary-General now says China wasn't a signatory of the Covenant from 1971, when it joined the United Nations, until 1998. In effect, then, China's human rights obligations have been reduced. I think this is inconsistent with the general view that a State that succeeds to another is bound by the existing human rights obligations. Admittedly, the China case is not a classic one of State succession. Still, we shouldn't be reducing the application of the Covenant to a State, as the Secretary-General seems to have done. Can a State escape from its obligations by 'unsigning' a treaty and then resigning it at a later date?

Tuesday 16 March 2010

Civil Rights in the United States: The Promise

The New Yorker has a very moving, and informative, presentation on its website about the history of the civil rights movement in the United States. It has some beautiful photographs of many of the participants, some of them taken at the time, some of them very recent. There are also interviews with many of them. I think my favourite is of the 'Little Rock nine', who as young teenagers registered for Little Rock Central High School in September 1957. They were turned away by the Arkansas National Guard, and only got into the school when President Eisenhower sent federal troops to escort them. I suppose they would have been 13 or 14 years old at the time. And there they are, all nine of them, now pushing seventy, one has a walker, elegantly dressed, proud and dignified as they hold hands in front of their old high school. It's the photo that is at the top in the centre on the web page. A few of them are interviewed briefly. See The New Yorker.

Monday 15 March 2010

Taiwan and the International Covenant on Civil and Political Rights

In an intriguing development in the realm of international human rights treaties, the Republic of China (that is, Taiwan), attempted to deposit instruments of ratification of the International Covenant on Civil and Political Rights last year. This followed a vote in the Taiwan legislature, on 31 March 2009, by which the two Covenants were ‘ratified’.
The ratification was refused by the depositary, which is the United Nations Secretary-General. In a letter dated 15 June 2009, the UN Under Secretary-General for Legal Affairs, Patricia O’Brien, wrote that the Secretary-General ‘was in no position to accept Taiwan’s ratification because of UN Resolution 2758, which recognizes the People’s Republic of China as the sole and legitimate representative of China’.
Here’s the background. On 5 October1967, the Republic of China signed the International Covenant on Civil and Political Rights . At the time, the ‘Republic of China’ (i.e., Taiwan) occupied the Chinese seat at the United Nations. This all changed with Resolution 2758. It recognized the People’s Republic of China as ‘the only legitimate representatives of China to the United Nations’.
Then, in 1998, the People’s Republic of China declared that it had signed the International Covenant on Civil and Political Rights. The treaty website of the United Nations contains the following declaration of the People’s Republic of China: ‘The signature that the Taiwan authorities affixed, by usurping the name of “China”, to the [Convention] on 5 October 1967, is illegal and null and void.’ But the website of the United Nations continues to list 1967, not 1998, as the date of signature of the Covenant by China.
Here is the text of article 48 of the Covenant:
Article 48

1. The present Covenant is open for signature by any
State Member of the United Nations or member of any of its specialized agencies,
by any State Party to the Statute of the International Court of Justice, and by
any other State which has been invited by the General Assembly of the United
Nations to become a party to the present Covenant.
2. The present Covenant is
subject to ratification. Instruments of ratification shall be deposited with the
Secretary-General of the United Nations.
The problem is that if the People’s Republic of China does not in effect acknowledge the 1967 signature, then the Republic of China remains a signatory to the Covenant and is therefore entitled to ratify it. There is no requirement that a ratifying State be a member of the United Nations. Any signatory State can ratify. General Assembly Resolution 2758 concerns the place of China with respect to the United Nations, and does not seem to contemplate treaties that have an autonomous existence. Isn’t the issue whether the Republic of China was a Member State of the United Nations in 1967, a fact that is confirmed by Resolution 2758? And if that is the case, is it not a State capable of ratifying the Covenant, even if it is no longer a Member State of the United Nations, provided it has legally signed the Covenant.
Is Taiwan a State at all? The question as to what is a State has been debated elsewhere on this blog in recent months with respect to the declaration by the ‘State’ of Palestine pursuant to article 12(3) of the Rome Statute.

Saturday 13 March 2010

Commentary on the Rome Statute

Oxford University Press have just published The International Criminal Court: A Commentary on the Rome Statute, of which I am the author.
I apologise for what some may feel is a shameless bit of self-promotion, but I promise not to do so often on this blog. The book is about 1,350 pages long, and consists of an article by article review of the Rome Statute. It takes into account the case law of the Court up to 1 July 2009, as well as academic writing on the subject in English, French, German, Spanish and Italian. I've reviewed the written record of the drafting of the Statute, avoiding the temptation of many writers to claim 'this is what we meant' and instead basing conclusions on objective, verifiable sources. There is a full subject index, as well as tables of cases and instruments that are cited.
I've been studying the Court since the early 1990s, when the International Law Commission prepared the draft statute that formed the basis of further negotiations under the aegis of the United Nations General Assembly. I attended several of the Preparatory Committee sessions, as well as the Rome Conference. I'm now looking forward to Kampala, in June, where the first Review Conference of the Statute will be held. I've also written many articles on the Court, as well as the Introduction to the International Criminal Court, which will appear with Cambridge in a fourth edition early next year. It has been translated into Chinese, Turkish and Farsi.
The Commentary joins two other similar works, the first published under the editorship of Antonio Cassese, in 2002, and the second under the editorship of Otto Triffterer, in 2008. I have contributions in both of those volumes too.
It is my hope that the book will assist the Court, which will soon move into its second decade of existence. It is an expensive book, I'm afraid, at GBP 150 or $US 240 (the two other commentaries are double or more that price), and that may unfortunately put it out of reach of many people . The book will be on sale at the upcoming American Society of International Law conference where, I believe, it will be available at a significant discount. It should quickly find its way into the major reference libraries. Just please don't make too many photocopies!

Data on UN Special Procedures

The Office of the High Commissioner for Human Rights has issued a very informative and useful booklet providing detailed information on the special procedures of the Human Rights Council

Responsibility to Protect

'The Responsibility to Protect: From Principle to Practice' is the title of a conference to be held in Scandic Linköping Väst, Sweden from 8-12 June 2010, hosted by the University of Amsterdam. Speakers include Francis Deng, Edward Luck, Ambassador Heraldo Munoz, Nicolas Michel, Larry May, Daphna Shraga and Paola Gaeta
The final programme is now available.

Tuesday 9 March 2010

Rights & Democracy

There is a campagin to support Rights and Democracy in its struggle for independence (and survival) from the Canadian government. See the website to see how you can support this important human rights institution.
Thanks to Michael Kapellas.

Sunday 7 March 2010

Property Tribunal in Northern Cyprus is Valid Remedy, Rules European Court of Human Rights

The vexing issue of property rights in an occupied territory, especially where the occupation has lasted many decades, is the subject of a very recent admissibility decision by the Grand Chamber of the European Court of Human Rights.
Demopoulos et al., issued on 1 March 2010, concerns property claims by Greek Cypriots whose land was taken as a result of the Turkish invasion in 1974. Turkey objected to their applications on the grounds that they had not filed their claims with the Immovable Property Commission set up under the laws of the ‘Turkish Republic of Northern Cyprus’, which is a pseudo-State without international recognition. The applicants replied that they could not be expected to make claims to the institution of an illegal occupying power. The Grand Chamber declared the case inadmissible, in effect rejecting the claims of the Greek Cypriots and telling them to exhaust their domestic remedies by using the mechanisms set up in northern Cyprus to adjudicate property claims and award compensation.
The Grand Chamber said it was ‘not persuaded that the acknowledgement of the existence of a domestic remedy runs counter to the interests of those claiming to be victims of violations’. It said it ‘acknowledges the strength of feeling expressed by some of the applicants. However, the argument that it would be galling to have recourse to authorities in northern Cyprus cannot be given decisive weight - against the background of conflict and hostility, similar argument might be raised in respect of any official body or authority on the Turkish mainland, or indeed by any victim of a violation who is faced with the prospect of asking for redress from a State which has been responsible for the injury suffered.’ (para. 98).
The ruling bears on many historic claims concerning human rights abuses. It is also relevant to the law governing occupied territories. As in the past, the Court made no reference to the relevant instruments governing the law of armed conflict, and in particular the fourth Geneva Convention. According to the Grand Chamber:

Thus, the Court finds itself faced with cases burdened with a political, historical and factual complexity flowing from a problem that should have been resolved by all parties assuming full responsibility for finding a solution on a political level. This reality, as well as the passage of time and the continuing evolution of the broader political dispute must inform the Court's interpretation and application of the Convention which cannot, if it is to be coherent and meaningful, be either static or blind to concrete factual circumstances (para. 85).
One important issue is whether those who lands were taken by the occupation are entitled to recover them or only to receive financial compensation. According to the Grand Chamber:

At the present point, many decades after the loss of possession by the then owners, property has in many cases changed hands, by gift, succession or otherwise; those claiming title may have never seen, or ever used the property in question. The issue arises to what extent the notion of legal title, and the expectation of enjoying the full benefits of that title, is realistic in practice. The losses thus claimed become increasingly speculative and hypothetical. There has, it may be recalled, always been a strong legal and factual link between ownership and possession… This is not to say that the applicants in these cases have lost their ownership in any formal sense; the Court would eschew any notion that military occupation should be regarded as a form of adverse possession by which title can be legally transferred to the invading power. Yet it would be unrealistic to expect that as a result of these cases the Court should, or could, directly order the Turkish Government to ensure that these applicants obtain access to, and full possession of, their properties, irrespective of who is now living there or whether the property is allegedly in a militarily sensitive zone or used for vital public purposes. (paras. 111-112)

116. The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility, a suggested condition put forward by the applicants and intervening Government which discounts all legal and practical difficulties barring the permanent loss or destruction of the property. It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court's task in interpreting and applying the
provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention.

117. It is evident from the Court's case-law that while restitution laws implemented to mitigate the consequences of mass infringements of property rights caused, for example, by communist regimes, may have been found to pursue a legitimate aim, the Court has stated that it is still necessary to ensure that the redress applied to those old injuries does not create disproportionate new wrongs.

Saturday 6 March 2010

European Court of Justice Ruling on Products from West Bank Settlements

A ruling by the European Court of Justice last week holds that goods produced in Jewish settlements in the occupied West Bank cannot benefit from trade agreements between Europe, Israel and the Palestinian authority that give preferential access to European markets. Products such as wine, cosmetics and computer equipment are produced at illegal settlements in the West Bank. The consequence of the ruling it to allow tariffs to be imposed, making the goods less competitive in European markets.
Thanks to John Reynolds

Universities Should Defend Academics Charged with Libel

My recent post on the criminal prosecution of Joseph Weiler before the French courts for publishing a book review deemed, by the author of the book in question and seemingly nobody else in the known universe, to be defamatory, recalls a legal battle that I was subjected to in Canada more than a decade.
I was sued for defamation by Leon Mugesera, who fled Rwanda in the early 1990s and whose name has often been linked to the incitement and planning of the 1994 genocide. See, for example, Akayesu, para. 100 and Mugesera's own case before the Supreme Court of Canada. I had from time to time done media interviews in Canada on developments in Rwanda, and had referred to Mugesera's case. His claim was for about half a million dollars! My daughter Louisa freaked out when the bailiff arrived at the door.
I took the writ to the lawyers of my university and explained that I thought they were required to defend me, as doing such interviews was part of my duties as an academic. They didn't commit immediately, however, and instead called in the insurance company of the university. It was clear that the general insurance policy was probably meant to cover people who slipped in stairwells, or who fell on the ice on the steps outside the university, and not human rights academics sued by suspected génocidaires for defamation.
But the insurance policy was drafted broadly enough to cover my case, and the insurers agreed to take up the case. They even said they were proud to defend me because they had reviewed my statements on the subject and noted that I had always insisted that although Mugesera should stand trial, he was still presumed innocent.
Next, they did what insurance companies normally do in defence: file lots of punishing motions against the plaintiff. Within days, Mugesera's lawyer (the same guy who was later sanctioned by the Supreme Court of Canada for anti-semitic remarks - see Mugesera, para. 17.) asked if we would drop the case without costs, which we agreed to do. They had presumed that defending an expensive libel case would be a great financial burden on me, and perhaps had calculated that it might discourage me from continuing to speak out about Rwanda. Once the university's insurance company entered the battle, the balance of forces changed dramatically.
In convincing the university and its insurers to defend me, one of my strongest arguments was the fact that members of the faculty regularly reported to the university on our activities, and I had systematically mentioned 'interviews with media' as one of my academic tasks. Universities generally like the visibility of their academics being interviewed as authorities on various subjects. That means, of course, if and when we are sued we must insist that the university act in our defence.
Joe Weiler is a pretty smart lawyer, and I'm sure he has already figured this out. But for those of you who may not have thought this issue through, I would urge you to regularly inform your university if you do such media work, to identify yourself when you are interviewed as being associated with the university, and to seek opportunities to describe such work as part of your academic task. Having such protection should promote our academic freedom.

Best Practice on the Right of the Child to be Heard

Aoife Daly, who teaches on our LLM programme, had a piece in the Irish Times last week about the right of the child to be heard in judicial and administrative proceedings.

Irish Foreign Minister Condemns Gaza Violations of Human Rights, Supports Goldstone Commission

In a speech delivered to the 'high level segment' of the United Nations Human Rights Council in Geneva earlier this week, Ireland's Foreign Minister Micheál Martin criticized human rights abuses in Gaza resulting from the Israeli blockade. He also indicated support for the Goldstone Commission, which found that war crimes had been committed during the Gaza conflict in late 2008 and early 2009. Here are the relevant passages, taken from the full speech:
Last week, I paid a visit to Gaza. I was the first Foreign Minister of an EU member State to do so in over a year. My purpose in travelling was a humanitarian one, to see for myself the impact of a blockade which has now been imposed on the people of Gaza for some two-and-a-half years. The situation there is truly a humanitarian crisis, with a growing proportion of Gazans receiving insufficient food each day and some 80% of the population now subsisting below the poverty line. My visit reinforced my belief that the conditions under which the people of Gaza have to live as a result of the blockade are inhumane and utterly unacceptable. Normal international standards of human rights are not being respected. It is completely unjust that an entire population should be subjected to medieval siege conditions of this kind. As this situation strengthens extremism and undermines the voices of moderation, it is also wholly counter-productive in terms of achieving the wider political progress which is so urgently needed in the Middle East.
I believe that the credibility of the international community is at stake in Gaza. We must step up pressure for a lifting of the blockade and the opening of the border crossings to normal commercial and humanitarian traffic.
I am also convinced that accountability for the most serious offences which occurred during the Gaza conflict in late 2008/early 2009 must be ensured. That is why Ireland voted for the Resolution adopted by the UN General Assembly last November on the Goldstone Report and why we similarly supported the Resolution adopted last week reiterating the call on both sides to conduct credible and independent investigations. While we do not endorse every recommendation in the Goldstone Report, we do recognise it as a serious and very important contribution to our understanding of what took place in Gaza and southern Israel and of the need to
ensure some form of appropriate accountability for actions which occurred.

See also the video of the speech.
Among the 'Western European and other Group', with which Ireland is associated in the United Nations, I believe it is the only State to have taken such a public position.
Minister Martin also expressed concern about the human rights situation in the Democratic Republic of the Congo, North Korea and Burma.

Texas Judge Declares Death Penalty Unconstitutional

A judge in Texas has declared the death penalty to be unconstitutional, according to the Houston Chronicle.
According to Judge Kevin Fine, a District Judge in Houston:
Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed. It's safe to assume we execute innocent people. Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty? I don't think society's
mindset is that way now.

It seems likely that Fine's ruling is likely to be overturned on appeal by the State prosecutors. But this is how the abolition of the death penalty in the United States will begin.
With only about 47 States in the world that still use the death penalty, and only about 20 of them that use it regularly and to a significant extent, the United States is increasingly isolated on this important human rights issue. Statistics show that the use of capital punishment in the use is on the decline, and that juries are increasingly reluctant to impose it. Public opinion favourable to capital punishment has dropped significantly compared with a decade or two ago. Concerns about the execution of the innocent, which Judge Fine highlighted, have contributed to these changes.
Probably, some minor adjustments in the composition of the United States Supreme Court will be required before an application whose consequence would be judicial abolition could succeed. Hopefully, President Obama will get the chance to do this in the course of his term(s).
Thanks to Diane Amann.

Thursday 4 March 2010

Book Reviews and Academic Freedom

A distinguished academic, Professor Joe Weiler of New York University, is facing criminal prosecution in France on charges of defamation because he published a negative book review. The review was written by another very distinguished scholar, Thomas Weigend. This is a very disturbing development that threatens to chill academic debate. Professor Weiler has written a detailed account of the issues in the recent issue of the European Journal of International Law. In response to his appeal, I have already sent a letter of support, cosigned by my colleagues Prof. Carsten Stahn and Prof. Kai Ambos, in my capacity as editor in chief of the Criminal Law Forum.

Wednesday 3 March 2010

European Court Issues Strongest Decision Ever on the Death Penalty

Yesterday, a Chamber of the European Court of Human Rights issued its judgment in the Al Saddoon and Mufhdi case. The two applicants were represented by the courageous English human rights lawyer (and very dear personal friend) Phil Shiner. The Chamber found that the United Kingdom had imposed mental suffering upon the applicants sufficient to violate article 3 of the European Convention on Human Rights because it exposed them to the threat of capital punishment. Al Saddoon and Mufhdi were in fact surrendered by the British to the Iraqi’s, where they were subject to proceedings that might have had the death penalty as an ultimate result. The Chamber noted that the applicants, who are of course still in custody of the Iraqi authorities, continue to remain under threat of capital punishment.
The Court’s decision was based exclusively on the prohibition of ‘inhuman and degrading treatment’. The Court found it unnecessary to rule specifically on article 2 of the Convention (the right to life) and Protocol No. 13, to which the United Kingdom is a party. Signalling the elements of its own progressive interpretation of the Covnention, the Chamber said:
It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the Member States have now signed Protocol No. 13 and all but three of the States which have signed have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty…
Finally! This was the struggle that Nigel Rodley and Amnesty International began during the Soering case, more than twenty years ago.
It is too early to say whether this case will go to the Grand Chamber of the European Court, or whether it will be left to become a final judgment.

Tuesday 2 March 2010

Agathe Habyarimana Arrested in France for Extradition to Kigali

The widow of Rwanda's former President Juvénal Habyarimana, Agathe, was arrested in France yesterday on the basis of an international arrest warrant seeking her extradition to Rwanda to stand trial for charges related to genocide. See the story in Le Monde.
In the past year or so, several European students have refused to extradite to Rwanda on the grounds that the justice system does not provide satisfactory guarantees of fairness to an accused. Sweden, on the other hand, has agreed to extradite a suspect to Rwanda; the case is currently before the European Court of Human Rights. Courts and justice officials in Europe have been encouraged by decisions of the International Criminal Tribunal for Rwanda refusing to transfer suspects to Rwanda.
But the Prosecutor of the International Criminal Tribunal for Rwanda has suggested that the problems with Rwanda's justice system are in the course of being resolved. He has said he expects to apply again for transfer of cases to the Rwandan courts. If the judges of the International Criminal Tribunal for Rwanda support this, it will open the door to extraditions from Europe and elsewhere.
Agathe Habyarimana was in Rwanda at the time the genocide began, but was soon evacuated to France. She was widely alleged to preside over an inner circle that played a role in organizing the 1994 genocide.
Thanks to Dov Jacobs.

Monday 1 March 2010

Karadzic Trial: Joe Powderly on BBC World News

Joe Powderly, who is completing his PhD in international criminal law at the Irish Centre for Human Rights, and who is now a research fellow at the Asser Institute in The Hague, was interviewed on BBC World News earlier today about the opening of the Karadzic trial. Well done, Joe.

Peace, the Olympics and US Militarism

The Olympic Games have a leitmotif of peace. In ancient times, they brought with them a holy truce of Greek cities. All wars were supposed to cease while the games were carried out. The same spirit should today bring together athletes from around the world as we celebrate our humanity.
However, the US hockey team apparently saw the recent winter Olympic Games as a chance to promote its country’s military goals. Driven by a group called Operation Homefront, each player on the team was paired with a wounded veteran in order, according to one of the organizers, ‘to help the players understand they're not playing for the Stanley Cup, but their country’. We all sympathize with the young men and women who have been wounded, but nor should their suffering be exploited and ultimately tarnish the ideal of the Olympics by trying to use it is a celebration of American militarism.
There were reports of US players displaying militarist slogans on their uniforms. Backup goalie Jonathan Quick had ‘support our troops’ written on his helmet. According to the US team’s general manager, Brian Burke: ‘The real heroes in America don't wear hockey uniforms, they wear police uniforms, they wear camo, they wear fire uniforms, and we want our players to understand that what we do is small potatoes compared to what those people do.’ One of the team’s forwards, Dustin Brown, was quoted as follows: ‘We realize that our soldiers always have to go over into foreign soil and get the job done and they always do. That is kind of our theme. We are on foreign soil and we have to get the job done.’
It is a perversion of the Olympic ideal to use it for such chauvinistic purposes. Brown should be told that he was not on Canadian soil ‘to get the job done’ but because he was invited. The US team was defeated in yesterday’s final of the Olympic Games, by Canadian players, whose ambitions are more modest but who play beautiful hockey.