Friday 30 April 2010
Sunday 25 April 2010
Today, the International Criminal Tribunal for Rwanda issued a press release announcing the death of Jean-Bosco Barayagwiza, who passed away this morning while serving a 32-year sentence for genocide and crimes against humanity. The press release concludes: 'The ICTR and the Benin Government extend their condolences to the family of Jean Bosco Barayagwiza.'
I don't think the International Criminal Tribunal for the former Yugoslavia does anything similar. Indeed, I seem to recall Prosecutor Carla del Ponte making some rather unpleasant comments at the time of the death of Milosevic that seemed contrary to the rule that one should 'never speak ill of the dead'. Recently, Rasim Delic, who is on appeal from a conviction for war crimes and a three-year sentence, passed away, but the Tribunal didn't issue any press release (see the blog item on this by Dov Jacobs).
My inclination with Milosevic was to express sympathy to his family. It is a way of reaffirming out common humanity. We are not judging demons, we are judging other human beings. Moreover, they have families that have not been found guilty and may in fact have had no role whatsoever in the crimes. I don't know anything about Barayagwiza's family, but perhaps he has lovely grandchildren, and they have lost their grandfather, however evil he may have been.
When Hitler committed suicide, in the final days of the war, Ireland's prime minister at the time, Eamon de Valera, went to the German mission in Dublin to sign the book of condolances. It has been a matter of great debate ever since, cited by some as evidence of Nazi leanings and others of uncompromising neutrality. Apparently he did it despite advice from the civil servants in the Department of External Affairs to the contrary.
What do readers of the blog think? Was the International Criminal Tribunal for Rwanda correct to express its condolances to the Barayagwiza family?
Saturday 24 April 2010
The report shows a continuing progress in abolition, with a total of 149 States that are abolitionist de jure or de facto, and 47 that are retentionist. There is a graph showing the evolution of the situation since 1975, when a large majority of States still retained capital punishment. The report highlights the significance of the de facto abolitionist category, which consists of States that have not used the death penalty for ten years. Its usefulness has been debated, because of concerns that States return to capital punishment despite a lengthy period of disuse. But the report shows that such a return is very rare. As a general rule, where a State has been ten years without an execution, it is highly unlikely that it will ever again use the death penalty.
The report also examines the pattern of executions in States where the dath penalty is retained. In most such States, there has been a marked decline in the rate of execution.
Friday 23 April 2010
Whitney Harrris presented the Kaltenbruner case on 2-3 January 1946 (see Vol. 4, p. 288-311). In the final days of the trial, he cross examined two of the Gestapo witnesses, Karl Rudolf Werner Best and Karl Heinz Hofi'mann (Vol. 20, pp. 141-154, 182), and presented a few additional exhibits (Vol. 20, pp. 262, 562, Vol. 21, p. 300).
Even if the story is actually true, what does it prove? That Charles Taylor had diamonds? That he might have used them to buy arms? It seems a long way from crimes against humanity committed in Sierra Leone.
Whitney Robson Harris died on Wednesday at his home in St. Louis, Missouri. He was the last surviving prosecutor who appeared before the International Military Tribunal (IMT) at Nuremberg during the trial of the major Nazi war criminals. I've known Whitney for many years, visiting him on several occasions in St. Louis, but also seeing each other at conferences elsewhere in the United States and in Europe. Most recently, he has been involved in the crimes against humanity convention project which is directed by Leila Sadat of Washington University.
Whitney was an inspiring, devoted and very charming man, who made great contributions to international criminal justice. My sympathies go out to Anna and the other members of his family.
This is the very fine obituary prepared by Prof. John Q. Barrett of St. John's University:
At Nuremberg during 1945 and 1946, then Lieutenant-Commander Harris (United States Navy), serving as U.S. Trial Counsel, was primarily responsible for the prosecutions of defendant Ernst Kaltenbrunner, former Chief of the Reichssicherheitshauptamt (RSHA, or Reich Main Security Office), and defendant organizations the RSHA, the Gestapo and the Sicherheitsdienst (SD, or Security Service). Whitney Harris also was a principal, trusted aide to U.S. chief prosecutor Justice Robert H. Jackson and assisted him throughout the trial, including during his cross-examination of defendant Hermann Goering.
Whitney Harris was a graduate of the University of Washington and the University of California Berkeley Boalt Hall School of Law. As a young lawyer, he was in private practice in Los Angeles. Following Japan’s attack on Pearl Harbor, he enlisted in the Navy. During his World War II Navy service, he was recruited to the Office of Strategic Services (OSS), where his assignments included work relating to war crimes. In London during summer 1945, he assisted Justice Jackson’s staff informally. He soon was recruited to join the staff and became one of its most important members at Nuremberg.
Following Nuremberg, Whitney Harris served successively as Chief of Legal Advice during the Berlin Blockade, as a law professor at Southern Methodist University, as director of the Hoover Commission's Legal Services Task Force, as the first Executive Director of the American Bar Association, and as Solicitor General of Southwestern Bell Telephone Company in St. Louis. He authored Tyranny on Trial, a monumental account of the Nuremberg case and evidence. He also became a generous philanthropist, including at Washington University in St. Louis, and a leader and conscience in his community.
In recent years, Whitney Harris devoted his energies primarily to speaking, writing, teaching and embodying the past, the progress and the hopeful future of international law and justice. He was a strong supporter of modern international tribunals, including the court for the former Yugoslavia, the court for Rwanda, and the International Criminal Court. As Whitney knew best and explained powerfully, each of those tribunals, and the world progress they can embody and assist, grew from and builds upon the principles and achievements of Nuremberg.
On YouTube, you can find this and much more that records Whitney’s presence, his eloquence and his teaching:
· footage of Whitney Harris at Nuremberg;
· Whitney Harris in 2001 reading excerpts from Justice Jackson’s introduction to Tyranny on Trial; and
· Whitney Harris in 2008 speaking about Nuremberg.
* * *
At Nuremberg, Justice Jackson told that IMT during his opening argument that “[t]he real complaining party at your bar is Civilization.” Whitney Harris is survived by his beloved wife Anna, by devoted family members, by legions of friends and admirers, by his many students, and by his former client, Civilization. He represented it beautifully, and he left it with great confidence that it is in good hands.
Saturday 17 April 2010
Called the ‘widow’, it is said to be the last guillotine used in France. At the exhibit it is veiled in black, alongside a citation from Victor Hugo: 'One can have a certain indifference about the death penalty, not quite knowing whether to say yes or no…until one has seen the guillotine.'
Other works include Andy Warhol’s Electric Chair, which I have reproduced. There is a great book accompanying the exhibition
Thursday 15 April 2010
This is the obituary in the Toronto Star.
VINCENT DEL BUONO Passed away peacefully with his family by his side at the Greater Niagara General Hospital on April 13, 2010 at the age of 60. Loving husband of Jennifer Pothier. Beloved son of Anna Del Buono and brother of Robert Del Buono. Cherished son-in-law of Theresa Pothier. Vincent was born May 16, 1949 in Casacalenda, Italy and immigrated to Canada at the age of four (though he retained close ties to his ancestral home and remained fiercely proud of his Italian heritage). Brought up in the Toronto neighbourhood of St. Clair and the Junction and educated at York University's Glendon College (BA, 1972) and the University of Toronto (MA, 1975, LLM, 1976), Vince was called to the bar in Alberta and went on to a distinguished international career in the fields of criminal law reform, justice, security and human rights. He spent a decade as Senior Counsel with the Law Reform Commission of Canada and the Department of Justice and was founding President of both the International Society for the Reform of Criminal Law and the International Centre for Criminal Law Reform and Criminal Justice Policy in Vancouver. During the 1990s, he played senior roles at the United Nations Office for Drugs and Crime in Vienna and with the UN's peacekeeping mission in Bosnia and Herzegovina. He also served as Deputy Secretary-General of Amnesty International in London. From 2002 to 2007, he led the British Council's Access to Justice program in Nigeria, for which work he was honoured by investiture into the Order of the Federal Republic of Nigeria. (He was equally proud of his traditional Nigerian titles: The King's Law Maker and The Emir's Chief Mediator.) Most recently, he had returned to Canada after many years abroad and having settled into an idyllic lakeside home at Niagara-on-the-Lake, was active as CEO of the Niagara 1812 Bicentennial Legacy Council. Over the years, Vince held academic appointments at McGill University, the Universities of Ottawa and British Columbia, Southwestern School of Law in Los Angeles and the State University of New York at Buffalo. He retained particularly close ties with York University (where he was a visiting Scholar and an ongoing Senior Fellow of Glendon School of Public and International Affairs) and with Massey College at the University of Toronto (where he had been Don of Hall as a graduate student and more recently was an inaugural recipient of the Rt. Hon. Adrienne Clarkson Laureateship in Public Service). Vincent had a profound positive impact on numerous institutions and individuals. He was passionately committed to the cause of human rights, which for him was not just a theoretical concept, but a living reality. He maintained a wide network of close contacts around the world, whom he touched for good in countless ways - both public and private - and who continue to cherish his wisdom, insight, compassion and humour. Vincent's family will receive friends at the MORLEY BEDFORD FUNERAL SERVICES, 159 Eglinton Avenue West, Toronto on Friday, April 16th from 4 p.m. to 8 p.m. A Funeral Liturgy will be held at the Newman Centre, St. Thomas Aquinas Roman Catholic Church, 50 Hoskin Avenue, Toronto on Saturday, April 17th at 10:30 a.m. A Memorial Service will be held in St. Catharines at the Unitarian Congregation of Niagara, 223 Church Street, on May 2, 2010 at 2 p.m. If desired, memorial donations can be made to Amnesty International or the Terry Fox Foundation would be appreciated by the family.
Wednesday 14 April 2010
Monday 12 April 2010
Certainly there is nothing abusive about pursuing this investigation. Moreover, Judge Garzón doesn’t disregard the 1977 amnesty law in Spain. Rather, he confronts it, referring to recent legal authority on amnesties, notably the ruling of the Special Court for Sierra Leone. The New York Times published a very supportive editorial a few days ago.
Of even greater significance is the recognition of crimes against humanity subsequent to the end of the Spanish Civil War, in 1939. This would be the earliest judicial recognition of crimes against humanity committed in peacetime.
This recalls a judgment of the European Court of Human Rights of a few years ago, in Kolk et al. v. Lithuania, dismissing an application challenging a conviction for crimes against humanity committed in the Soviet Union in 1949. Professor Antonio Cassese wrote a fascinating comment on the decision, lamenting the failure to address the issue of whether crimes against humanity could be committed in peacetime (‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law’, (2006) 4 Journal of International Criminal Justice 410). He said that in 1949 ‘the indispensable link between those crimes and war had not yet been severed. It is only later, in the late 1960s, that a general rule gradually began to evolve, prohibiting crimes against humanity even when committed in time of peace.’ Professor Cassese’s remark adds a useful nuance to the famous statement in the Tadic Jurisdictional Decision of 2 October 1995 (para. 14), which said
the nexus between crimes against humanity and either crimes against peace or war crimes, required by the Nuremberg Charter, was peculiar to the jurisdiction of the Nuremberg Tribunal. Although the nexus requirement in the Nuremberg Charter was carried over to the 1948 General Assembly resolution affirming the Nuremberg
principles, there is no logical or legal basis for this requirement and it has been abandoned in subsequent State practice with respect to crimes against humanity. Most notably, the nexus requirement was eliminated from the definition of crimes against humanity contained in Article II(1)(c) of Control Council Law No. 10 of 20 December 1945. (Control Council Law No. 10, Control Council for Germany, Official Gazette, 31 January 1946, at p. 50.).
The European Court of Human Rights in its admissibility decision in the case and Petr August Kalk Kislyiy against Estonia, January 17, 2006, recognized the universal validity of the principles concerning the documentation of the deportation as a crime against humanity, although The Nuremberg Tribunal was established to prosecute crimes that were committed during and before World War II (the European Axis countries) the Court stated that crimes against humanity were confirmed, inter alia, the resolution of the Assembly 95 UN General December 11, 1946 and later by the International Law Commission. Consequently, the responsibility for crimes against humanity can not be limited only to certain countries and national acts only in time of the Second World War. In this context, the Court emphasized that it is expressly enshrined in Article I (b) of the Convention of non-applicability of statutory limitations to war crimes and crimes against humanity "at the time of its commission and whether they were committed in wartime or peacetime.
Thanks to Mercedes Melon, Edel Hughes and Chema Arraiza.
Tuesday 6 April 2010
A bit of background. In Soering v. United Kingdom, in 1989, the Court held that article 2(1) of the Convention was not implicitly amended by article 3 (inhuman and degrading treatment or punishment) so as to prohibit capital punishment. It said that extradition to the United States would violate the Convention not because of the death penalty as such, but because the applicant would be exposed to prolonged incarceration on death row (the ‘death row phenomenon’).
The Grand Chamber returned to these issues in Öcalan v. Turkey, in 2005, where it toyed with taking interpretation of the Convention a step further but ultimately held itself back. In last month’s ruling, the Chamber discussed Ocalan:
120. 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.The Chamber then goes on to consider whether in fact the prohibition on ‘inhuman or degrading treatment or punishment’ set out in article 3 of the Convention prohibits the death penalty. It is necessary to point out that the two applicants have not yet been sentenced to death; they are only exposed to the possibility. The Chamber held that ‘there were substantial grounds for believing that they would run a real risk of being sentenced to death if tried and convicted by an Iraqi court’ (para. 135). Consequently,
136. The applicants must themselves have been aware of this risk. The Court considers that, at least from May 2006, when the Iraqi criminal courts accepted
jurisdiction over their cases, the applicants were subjected to a well-founded fear of execution. It is reasonable to assume that this fear caused the applicants intense psychological suffering. It must have continued throughout their appeals to the Iraqi courts against the referral of their cases to the IHT (see paragraph 47 above) and the refusal of the English domestic courts to prevent their physical transfer to the Iraqi authorities. It undoubtedly intensified around 31 December 2008, when the risk became more concrete and the transfer took place, and continues to this day.
Moreover, ‘the applicants' well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention’ (para. 137).
I am intrigued and a bit puzzled by the decision. Obviously, I concur with the result. But the reasoning is perplexing. The inhuman treatment is not the imposition of the death penalty itself, but rather the ‘psychological suffering’ or ‘mental suffering’ inflicted upon the applicants by their exposure to capital punishment. It seems to be extending the reasoning in Soering to encompass unconvicted persons who are threatened with capital punishment, and not just those who have been sentenced to death and are actually on death row.
Would it not have been better to declare the death penalty as such to be inhuman (or degrading) treatment, rather than to focus on the psychological suffering of the accused person? The Court seems only to have surmised that the applicants were subject to such suffering. There does not seem to have been any real evidence of this. What of the accused person who confronts the death penalty with courage, and who claims not to be suffering? Does someone with a martyr complex who welcomes capital punishment not qualify?
Moreover, does the logic of this finding apply to someone exposed to another form of harsh penalty? Presumably an innocent person charged with an offence goes through intense ‘psychological suffering’ at the prospect of going to prison for a crime he or she did not commit. Does this too violate article 3 of the Convention?
Members of the Council of Europe outlawed the death penalty, through Protocols 6 and 13, because the penalty itself is inhuman and degrading, and not because of the mental suffering of those who are exposed to it. It is inhuman and degrading for a society to kill another human being as a form of punishment. This is what makes the death penalty contrary to article 3.
Monday 5 April 2010
How could I have known that British barrister and judge Geoffrey Robertson was working on precisely the same question. And it is no prank. The following day, on Good Friday, The Guardian published an opinion by Robertson entitled ‘Put the Pope in the Dock’.
In a story published today by Associated Press, former Sierra Leone Special Court Prosecutor David Crane responds by asking ‘for what?’ I think that Geoff had in mind widespread and systematic sexual abuse committed by persons over whom he has exercised ‘superior responsibility’. Theoretically, the foundations are there under international law, assuming the facts can be proven and the acts took place subsequent to 1 July 2002 when the Rome Statute entered into force. The basis is articles 7 and 28 of the Rome Statute. Crimes against humanity and superior responsibility.
The core of the argument is that the Holy See, which has observer status at the United Nations, is not a State. Geoff’s reasoning stumbles on the fact that the Holy See not only controls territory but that its statehood is recognized by the many countries with which it has diplomatic relations. In other words, it has the attributes of statehood, no matter how preposterous its creation.
There is apparently a planned visit by the Pope to the United Kingdom. The United Kingdom has diplomatic relations with the Holy See, and recognizes it as a State. Under the Pinochet precedent, the Pope might have no immunity. But the Pinochet precedent was effectively overturned by the International Court of Justice, in the 2002 case between the Democratic Republic of the Congo and Belgium. In any event, under its own laws the United Kingdom cannot exercise universal jurisdiction over crimes against humanity, so I doubt the Pope really has much to worry about.
There is still the contention that there can be no immunity of a head of State before the International Criminal Court. Pre-Trial Chamber I said as much in the arrest warrant decision for President Bashir of Sudan in March 2009. But the decision is wrong on this point, in my opinion, because the provision of the Rome Statute that removes immunity from heads of State (art. 27(2)) is only applicable to those States that have ratified or acceded to the Statute. It does not change the legal regime for third States, which include the Holy See, Sudan, the United States and about eighty others. Their immunity is established by customary international law. This is explained in more detail in the entry in my Commentary on the Rome Statute for article 27.
This is not to say that there has been sufficient accountability within the Roman Catholic Church for child sexual abuse. The full story has clearly not been told. Many of those responsible have not been held to account.
Thursday 1 April 2010
The application was filed by an Irish tourist who claimed the Albanian government was failing to protect ‘gingers’ or ‘gingas’, who are a visible minority distinguished by red hair. Evidence was produced showing a widespread practice of genetic screening of unborn children for the MC1R gene. It is believed that many parents resort to termination of pregnancy once the gene is discovered. The applicant argued that this amounted to discrimination under Protocol No. 12 and might even be described as ‘genocide’, in that it amounted to the prevention of births within a national, ethnic, racial or religious group, which is prohibited by article 2(d) of the 1948 Genocide Convention. It is also an international crime under article 6 of the Rome Statute.
The Prosecutor of the International Criminal Court said informally, in a talk in The Hague last week, that his staff were studying the genocide charges, but that it would take some time to assess whether the situation was of ‘sufficient gravity’ before applying to the Pre-Trial Chamber to initiate an investigation. He referred to a recent ruling of the Appeals Chamber saying that the threshold for issuance of an arrest warrant for genocide was now very low. ‘Rest assured, we will confront impunity in all of its forms’, he said.
In another reaction to the case, the President of the International Association of Genocide Scholars said the organization was considering issuance of an ‘early warning’ notice.
In finding the application inadmissible, the European Court applied its doctrine of the margin of appreciation, citing its established case law concerning visible hair, notably Sahin v. Turkey.
A novel feature of the hearing at the European Court of Human Rights was the screening of a film documenting the phenomenon of discrimination against ‘gingers’.
One of the judges at the European Court recused himself from the decision, saying that he was himself a member of the minority group under consideration, and had suffered from persecution in the past as a result. At the oral hearing, the applicant described the judge as a 'self-hating ginger'. The judge, who only has a fringe of grey hair on his head and a grey moustache, explained that he had patches of red hair on parts of his body that were not normally visible to the public. See the recusal opinion.