Sunday 30 September 2012

Omar Khadr Leaves Guantanamo for Canada

Omar Khadr has been released from Guantanamo, where he has been detained for a decade, to serve the remainder of his sentence in Canada pursuant to a prisoner exchange agreement. When he was fifteen, Khadr was in Afghanistan fighting with the Taliban against the United States. There, he threw a grenade that killed an American soldier. In 2010, he pleaded guilty for doing this and was sentenced to an eight-year prison term.
Years earlier, nationals of the UK, Australia and other countries who had been detained were repatriated at the request of their governments. By contrast, Canada’s right wing government has refused to do anything to assist Omar Khadr, who was born in Canada and is a Canadian citizen. As early as April of this year, the US authorities indicated they were ready to repatriate Khadr. The Canadian government has been dragging its heels on bringing him home.
It is doubtful that a Canadian young offender, aged fifteen, would be sentenced to more than eight years in prison. Khadr has been in detention for a decade already anyway.
His crime has always been a bit of a mystery to me. There was (and is) an armed conflict going on in Afghanistan. Why is it a crime for a combatant on one side in the conflict to kill a combatant on the other side? And even if it is a crime, presumably it would be a crime under the laws of Afghanistan. Why then would someone be tried for this crime in Guantanamo and then serve his sentence in Canada? Khadr pleaded guilty as a result of an agreement, but he had little real choice. Without a plea deal, he might have much longer in Guantanamo.
Khadr should be released from detention in Canada as soon as possible. He is eligible for release sometime in 2013. This will be a matter for the country’s parole authorities, who we should presume will behave in a fair and objective manner, without the perverse political bias of the Canadian government authorities. If the Harper government had done its job, Khadr would already be a free man.
There remain 166 detainees in Guantanamo. Four years ago, Barrack Obama promised that if he were elected the notorious prison would be shut down.

Saturday 29 September 2012

High Commissioner Speech to United Nations on Capital Punishment

On Thursday, the High Commissioner for Human Rights delivered a speech in conjunction with the United Nations General Assembly. Here it is:

Check against delivery

Ministerial-level event on “The Death Penalty: From Moratorium to Abolition”

Statement by Ms. Navanethem Pillay, High Commissioner for Human Rights

United Nations General Assembly

New York, 27 September 2012,

Mr. Chairperson, Excellencies, Ladies and Gentlemen,

     I am grateful to the Permanent Missions of France and Benin for organising this ministerial-level event, which brings together those states that are committed not to apply the death penalty.  It is no surprise that we have plenty of delegates in the room, because the vast majority of states - 150 out of the 193 Member States of the United Nations - have abolished the death penalty or introduced a moratorium, in law or in practice, on its use.  The support for abolition resonates across regions, legal systems, traditions, customs and religious backgrounds.
     The United Nations stands with you.  It is our established policy that the United Nations will neither establish nor directly participate in any judicial mechanism that allows for capital punishment.
     The death penalty is hardly reconcilable with fundamental human rights, starting with the human right to life.  As Secretary-General Ban Ki-Moon recently remarked, the “taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process.”  It is also becoming increasingly obvious that the death penalty invariably entails cruel, inhuman and degrading treatment in violation of international law.  Time and again, research casts legitimate doubt on methods of execution that are supposedly “humane.”  Moreover, the cruelty of the death penalty starts long before the actual killing, when the condemned person sits on death row, caught in a terrorizing limbo between the fear of violent death and the faint hope that appeals for due process or clemency could spare his life after all.
     Almost everywhere, the death penalty is also intricately linked to the darkest episodes of history – dictatorship, war, colonial domination, foreign occupation and oppression of human rights.  In 1981, when Robert Badinter introduced the law by which France abolished the death penalty, he already observed that “without exception, wherever in the world dictatorship and disdain for human rights triumph, one finds inscribed in bloody letters, the death penalty.”  This observation certainly applied to my own home country, South Africa, where we experienced how the Apartheid Regime used the death penalty as a tool of oppression.  We are proud that our Constitutional Court declared the death penalty unconstitutional in 1995 and that the abolition of this sentence was cast into law two years later.
     Remnants of the historical links between oppression and the death penalty remain visible even in the few democratic states that retain the death penalty.  Its application tends to be discriminatory and the poor, the powerless and persons belonging to minority communities make up a disproportionate number of those who are executed.
     Ladies and Gentlemen,
     Year after year, more countries are turning away from the death penalty.  This is also reflected in the increasingly wide support to the annual General Assembly resolution calling for a worldwide moratorium on executions.
     Yet, I will not hide the fact that there are also setbacks.  I am particularly saddened when some States resume executions after decades.  In addition, there have been isolated instances where states have reintroduced the death penalty for certain offences.  From the perspective of international law, this is problematic.  On several occasions, the United Nations Human Rights Committee and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions have criticized states that have expanded the scope of the death penalty.  They considered its reintroduction for certain offences to be incompatible with Article 6 of the International Covenant on Civil and Political Rights.
     In this regard, I note that Article 6 (2) of the International Covenant clearly provides that only “in countries that have not abolished the death penalty, sentence of death may be imposed” (and that only for the most serious crimes and subject to the most stringent due process guarantees).  This suggests that states that have already abolished the death penalty are no longer entitled to reinstate it.  This interpretation is supported by Article 6 (6), which specifies that the article must not be invoked “to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”
     Ladies and Gentlemen,
     I would like to use this opportunity to congratulate all states that have taken steps in recent years towards the abolition of the death penalty.  They are too numerous to mention them by name.  Abolishing the death penalty takes political courage.  I deeply regret, however, that there are still efforts calling for the retention or reintroduction of the death penalty – to manipulate public concerns about particularly heinous crimes.   Such attempts should be countered with leadership, reason and mutual support.
     As a first step, I would urge all states that have not yet done so to take heed of the theme of this meeting and move from “moratorium to abolition.”  National laws and ideally the constitution should explicitly outlaw capital punishment.  Furthermore, I would encourage you to take an additional step and reaffirm your commitment to abolition also under international law.  I invite you to join our co-host Benin and 74 other countries that have already ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.  My Office stands ready to provide you with relevant technical advice, where necessary.
     Moving from moratorium to abolition is not just a technicality.  Formal abolition will seal the hard-won national consensus and prevent it from unravelling in times of political turmoil when populism and rash decisions abound.  
     Leaders also need to explain the ethical and practical reasons for abolishing the death penalty to their constituencies.  Unsubstantiated arguments for the death penalty must be countered.  In particular, there is no proof that capital punishment deters the most serious crimes more effectively than a credible prospect of imprisonment.  Some academic studies even indicate that murder rates fall when the state itself gets out of the “business of killing” and abolishes the death penalty.  Furthermore, research consistently shows that the best deterrent of serious crimes lies in ensuring that criminals face a high chance of capture and punishment within a reasonable time.  The certainty of punishment, rather than its severity, deters criminals.  To curb serious crimes, the focus should therefore lie on reforming the justice system and rendering it more effective.
     I would like to take this opportunity to urge states to increase their cooperation with one another and with civil society to foster the emerging abolitionist global consensus.  It is crucial that leaders speak out for abolition and encourage their neighbours and allies to follow the same path.  Even though the vast majority of states do not apply the death penalty, this majority does not speak with a sufficiently strong and united voice.  I would therefore encourage States and civil society to use all opportunities to do so, including through support to the annual General Assembly resolution on the death penalty.
     My Office and I stand ready to assist you.  My Office carries out a number of activities to advance the debate at the international and national level, such as seminars for scholars and practitioners.  As High Commissioner for Human Rights, I strongly believe that there is no right more sacred than the right to life and I will continue to raise the need for the abolition of the death penalty in my engagement with leaders. 
     The death penalty cannot be reconciled with fundamental human rights values.  It is an affront to human dignity, our shared human dignity.  Every time the State drags a human being to the execution site and kills him in “the name of the people” – our name – a piece of our own human dignity is shattered.
     Thank you for your attention.

Monday 24 September 2012

Two down, 28 to go

Tomorrow, Samoa will deposit this instrument of ratification at United Nations Headquarters, becoming the second State Party to the Rome Statute to ratify the amendment on the crime of aggression. A total of 30 ratifications are required for the amendment to enter into force. If this is achieved by 2017, the Assembly of States Parties will also be required to adopt a resolution by a two-thirds vote in order to fulfil the requirements for entry into force.

Thursday 20 September 2012

Human Rights in the Future

Dr. David Keane, Lecturer in Law at Middlesex University London and Yvonne McDermott, Lecturer in Law at Bangor University, in Wales, have published The Challenge of Human Rights, Past,Present and Future, with Edward Elgar Publishers. This is an edited collection that looks beyond the established limits of human rights, focusing especially on the directions that this discipline will take in the future.
The book consists largely of papers presented at the tenth anniversary celebrations of the Irish Centre for Human Rights, which took place in November 2010.
According to Professor Joshua Castellino, who is Dean of the School of Law at Middlesex University London:
This volume represents a genuine attempt to think beyond the realms of what exists, to reflect on ideas postulated in the past that could be of great salience in the future. It presents the reader with a key question: to what extent are the contemporary concepts of human rights and the systems that support them equipped to address the challenges of a changed world? By thinking through some of the ideas of the past, with a set of promising young scholars alongside more established names, readers will gain a sense of how human rights politics have shaped the current regime while also becoming attuned to the extent to which new directions and mechanisms can be forged in the future.
Contributors include:
K. Anderson, M.M. Carpenter, J. Castellino, J. Curtis, A. Daly, S. Darcy, P. Fitzmaurice, D. Keane, Y. McDermott, N. McGeehan, D. McGreal, R. Murphy, S. Murphy, M. Ní Chríocháin, É. O’Brien, J. Reynolds, L.N. Sadat and W.A. Schabas.

Assembly of States Parties Should Consider Palestine Statehood Issue

A group of prominent academics in the field of international law has written to the President of the Assembly of States Parties of the International Criminal Court asking that she put the issue of Palestinian statehood before the next session of the Assembly.  Earlier this year, this blog reported on the decision of the Prosecutor of the Court not to proceed upon the declaration by Palestine giving jurisdiction to the International Criminal Court. The Prosecutor decided that deciding upon whether or not Palestine was a State did not fall within his remit. He suggested that this issue lay with the United Nations General Assembly or, possibly, with the Assembly of States Parties.
The decision was criticized by many observers, including this blog. Palestinian statehood is simply a fact, like so many others, that the Prosecutor must consider in exercising his (now, her) authority. But since the Prosecutor has suggested that this hot potato be passed to the Assembly of States Parties, the letter to the President asks that the matter be followed up.
Here is the letter to the President of the Assembly of States Parties.

Wednesday 19 September 2012

Some have said this photo, taken at the closing party of the recent Chautauqua Prosecutor’s Conference, looks more like an aging rock group than an assembly of professional lawyers before whom tyrants and knaves tremble.
From right, David Crane (former prosecutor of the Special Court for Sierra Leone), Serge Brammertz (prosecutor of the International Criminal Tribunal for the former Yugoslavia), Fatou Bensouda (prosecutor of the International Criminal Court), Hassan Jallow (prosecutor of the International Criminal Tribunal for Rwanda and of the International Residual Mechanism), and, at the far left, an interloper without any prosecutorial experience at all.

Special Rapporteurs Release Reports on Capital Punishment

Although the restriction and abolition of the death penalty has been one of the central issues in the human rights activities of the United Nations, there is no ‘special rapporteur’ or similar official specifically assigned to the issue. Historically, the matter has been taken up by the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions and, more recently, the Special Rapporteur on Torture. Among the myriad special procedures of the United Nations, these are among the oldest and most established. Thus, when the special rapporteurs speak, they do so with great prestige and authority.
For the first time, they have chosen to address the death penalty simultaneously, issuing reports for the autumn session of the General Assembly on the subject. The reports were issued today.
The Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions devotes detailed attention to the issue of ‘most serious crimes’, where debate rages as to whether capital punishment imposed for drug trafficking is compatible with international law. The Special Rapporteur on Torture, after covering the ways in which capital punishment interacts with his mandate, considers the evolving international legal norm by which capital punishment is, in and of itself, a form of torture.
It has always puzzled me that the world will condemn a situation where an individual is hooked up to electrodes and jolted unconscious by electricity by his or her tormentors, unless the electricity is strong enough to kill, in which case there are some who say this is not prohibited by international law. Or where we denounce the amputation of various parts of the body, such as hands and feet, as a form of punishment, only to deem it compatible with international law if it is the head that is amputated.
Well done to the Special Rapporteurs for this terrific initiative. Hopefully, it will help to build momentum for the General Assembly debate and the bi-annual resolution calling for a moratorium on capital punishment.

Duke University seeking clinical professor in international human rights law

Duke University’s Law School seeks to appoint a clinical professor of law (open with regard to rank) in the field of international human rights law beginning in the Fall 2013. The precise contours of the position, including resources and institutional support, will be tailored to the strengths and interests of the successful applicant. In addition to a strong record of, or demonstrated potential for, clinical teaching, intellectual engagement, and leadership in the field, the ideal candidate will have experience in developing effective clinical programs or practice-oriented courses, working collaboratively with faculty members in law and related fields, and a record of practical engagement in international human rights law. Send a cover letter describing your interest in the position as well as a current curriculum vitae to:
Professor Laurence R. Helfer
Co-Director, Center for International and Comparative Law Duke University School of Law
Box 90360 Science Drive & Towerview Rd. 
Durham, NC 27707  U.S.A.
Applicants are encouraged to submit their materials via email to Alison Prince at

Sunday 16 September 2012

Book on Asylum Seekers and Criminal Law

Joseph Rikhof’s book, "The Criminal Refugee: the Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law", has just been published by Republic ofLetters in its Human Rights Series (of which I am the editor-in-chief). The book explores an aspect of refugee law which has received little academic attention, namely in how far a criminal background has an effect on obtaining or retaining asylum. In examining this question, the author uses international criminal law, international human rights law and transnational law concepts to elucidate the refugee notions of exclusion and refoulement while also comparing the practice of nine countries in various parts of the world. The book provides a welcome addition to refugee law in general while also filling a gap in the literature in the area of criminality and as such is a must-read for international criminal and human rights lawyers alike.'
The book is based on Joseph’s PhD thesis, which he completed at the Irish Centre for Human Rights under the supervision of Dr. Shane Darcy.

Friday 14 September 2012

More Mystery About the Charles Taylor Judgment (and its Appeal)

Yesterday, the Appeals Chamber of the Special Court for Sierra Leone issued a decision dismissing a challenge from the defence. The judges had been asked to recuse themselves from the appeal proceedings because of their involvement in a decision concerning the role of alternate Judge Sow in the Charles Taylor verdict.
This matter has been discussed in postings on the blog earlier this year. Briefly, after the Taylor verdict was read, alternate Judge Sow began issuing a statement in which he indicated his belief that guilt had not been proven beyond a reasonable doubt.  The microphone was turned off before he could finish. Subsequently, the plenary of judges met and recommended the suspension of Judge Sow. As a result, he did not participate in the sentencing ruling. His name mysteriously disappeared from the title page of the judgment in a manner reminiscent of Trotsky’s disappearance from old photos of the Soviet politburo.
Yesterday’s ruling is accompanied by a separate opinion from Judge George Gelaga King. Judge King writes of the plenary meeting that recommended the suspension of Judge Sow:
I objected to the procedural irregularity, which patently impinged on Justice Malick Sow’s right to be heard, stating that it was against basic principles of natural justice, and submitted that the Emergency Plenary could not deliberate on the matter and the views and recommendations of the Judges could not be sought when Justice Malick Sow had not been given an opportunity to repond to what were to all intents and purposes ‘new’ allegations against him. I ewarned the Teleconference that unless Justice Malick Sow was given time to reply to the sudden and scurrilous allegations made against him by Justice Julia Sebutinde, the refusal to give him time to respond was tantamount to ‘a perversion of justice’. I informed my colleagues that, accordingly, I was not, from that moment, taking any further part in the Emergency Plenary. I then walked out of the conference room and the Emergency Plenary.
Yesterday’s separate opinion by Judge King provides a very rare insight into the disciplinary activities of an international court. The various statutes of the different tribunals provide, in greater or lesser detail, for the possibility of a judge being subject to disciplinary proceedings by his or her peers. It is all a great mystery, because as a general rule such proceedings (if they exist) are confidential. Judge King’s opinion is hardly reassuring.
Recently, I attended the annual Chautauqua Prosecutors Conference where the Taylor case was discussed at length. I strongly expressed my concern about the Taylor judgment given the statement by Judge Sow after the verdict had been delivered. I was challenged by several speakers who complained about Judge Sow’s alleged improper behaviour, a matter that seems to me to be entirely secondary. It was also argued that because Judge Sow was an alternate judge, his opinion was not of any significance.
My concern was – and is – about reasonable doubts that arise when one of four judges who has heard the entire case says that he is not satisfied that guilt has been proven. If Judge Sow had sat in the gallery of the courtroom throughout the trial, as an observer for an NGO, and he had concluded that guilt had not been proven, we would certainly take his opinion seriously. We would want to know more about it. We would want to understand why he reached such a conclusion. We would not quibble about whether he had a vote, or whether he had behaved properly. What I cannot understand is the indifference of so many people who are concerned with international justice to something that inevitably raises doubts about the validity of the Taylor conviction.
The concerns I expressed at Chautauqua were met with the argument that international criminal tribunals do not require unanimity of the three judges. But can anybody cite an example where someone was sentenced to a lengthy term of imprisonment for crimes against humanity and war crimes by an international tribunal where one of the judges hearing the case voted to acquit because the facts had not been proven beyond a reasonable doubt?
I don’t believe such an example can be found. At the Chautauqua meeting, Judge Bankole Thompson, a veteran of the Special Court for Sierra Leone, challenged my position by noting that he had himself voted to acquit in one of the trials but that the accused had been convicted on the votes of the other two judges. Later, Judge Bankole Thompson conceded that this was not at all the same situation. His dissent was on a matter of law. He did not disagree with his colleagues about whether the facts had been proven.
Another participant cited the example of Judge Pal at the Tokyo Tribunal. But Judge Pal did not disagree about the facts either. He disagreed about a point of law.
Although nobody cited this, I know of one example of a dissent on facts similar to the Taylor verdict. At the Yugoslavia Tribunal, in the Galic case, Judge Nieto-Navio voted to acquit on one of the counts. He expressed surprise in his dissenting opinion that his own colleagues would not consider that the doubt of one judge was sufficient to create a reasonable doubt in all of them. But Judge Nieto-Navio voted to convict on other counts. He was not saying that Galic was innocent of all charges.
In Taylor, we seem to have a case where one of the four judges hearing the case favours a full acquittal based on failure to prove the facts. I believe this is unprecedented.
There have been many claims by those who defend the Taylor verdict about the insignificance of the role of the standby or alternate judge. It is of course quite true that such a judge does not vote. That does not mean there is no active role for the alternate judge. He or she does not stand in the wings, so to speak, like the understudy in a play or an opera.
At Nuremberg, there were four alternate judges. Not only did they attend the trial and participate actively in the deliberations, they also read portions of the judgment when it was delivered. At the Yugoslavia Tribunal there have been alternate judges. I cannot cite a decision on their role or status, but I have heard informally from other judges that the alternate judges are full participants in the judicial work of the Chambers.
My point is easily misunderstood. I am not arguing that Taylor is innocent. I am not arguing that Judge Sow had a right to vote on the verdict. I am not arguing that a dissent by one judge on a question of facts necessarily results in acquittal. But when an international court proposes to send a man to jail for fifty years, and one of four judges who has heard the entire case thinks the man should not even be convicted, this should concern us.
Judge Sow is a man of great integrity and a highly experienced jurist. If he were not, it is hard to imagine why the Secretary-General of the United Nations would have appointed him to the position.
His views matter. If they are not considered by the Appeals Chamber, they may well be taken into account by history. For the time being, we should insist on knowing more about them. As a starting point, the Appeals Chamber might request that Judge Sow submit his full opinion on the case so that it can be taken into account. This too would be unprecedented. But why not? Everything else about this case is.

Monday 3 September 2012

Privileged Communication and the Principal Defender

One of the innovations of the Special Court for Sierra Leone was establishment of an office of 'Principal Defender'. This is an officer of the Court with particular responsibility for the defence of accused persons. Although there is little or nothing remaining in terms of concerns for those accused of core crimes, the Principal Defender has an ongoing role with respect to persons who have been convicted as well as those charged in the ongoing prosecutions for contempt.
Several weeks ago, in a prosecution involving attempts to influence witnesses to recant their testimony and thereby nourish a claim by convicted persons to have their verdicts overturned, an issue arose concerning privileged communication with the Principal Defender. The ad hoc Prosecutor sought a subpoena in order to compel the testimony of the Principal Defender with respect to communications with persons convicted by the Court.
Judge Doherty, who is hearing the case, asked me to act as amicus curiae and submit a brief on the question. Today, she issued her decision, declining to issue the subpoena to the Principal Defender. This is a decision that may have broader repercussions, notably at the International Criminal Court and the Extraordinary Chambers of the Courts of Cambodia (I exclude the Special Tribunal for Lebanon, on the assumption that there has been no communication with those who have been charged). Here is today's decision.

Sunday 2 September 2012

Desmond Tutu and Tony Blair

London media is buzzing today with reports that Desmond Tutu has called for Tony Blair to be prosecuted at the International Criminal Court for the invasion of Iraq. For the record, here is Archbishop Tutu's statement. It was apparently prompted by a conference in South Africa where Blair was being paid GBP 150K to speak and where Tutu was speaking free of charge. Tutu walked out because he refused to be associated with Blair.
When I heard the news of this on BBC4 this morning, I was curious at what appeared to be a misunderstanding of the jurisdiction of the International Criminal Court. Tutu was angered about the invasion of Iraq. Although I share his feelings on this, I also know enough about the legal framework of the Court to realize that Blair cannot be prosecuted for the crime of aggression. Regrettably, the Court cannot exercise jurisdiction over the crime of aggression until the Kampala amendments are adopted and, in any case, not before 2017, so there is no question of it prosecuting a crime of aggression perpetrated in 2003.
But in fact, despite the comments in the press, Tutu did not call for Blair to be prosecuted by the International Criminal Court. He merely made a very important and valuable point.
It is sheer hypocrisy to prosecute African leaders for various violations of international law while people like Blair continue to be feted as distinguished statesmen on the international lecture circuit. Although Blair cannot be prosecuted by the International Criminal Court, there are very strong reasons to believe that he perpetrated the crime of aggression in 2003. This is the act described by the International Military Tribunal as 'the supreme international crime'.
Blair can perhaps be prosecuted for war crimes and crimes against humanity committed by British troops in Iraq. On this, there is no doubt about the jurisdiction of the International Criminal Court. Proving his liability as the leader may be challenging, although the recent conviction of Charles Taylor sets out legal principles that make this simpler.
To date, the Prosecutor of the International Criminal Court has chosen to give the British a get out of jail free card for their conduct in Iraq. It is an unfortunate exercise of prosecutorial discretion. But in any case Blair cannot be prosecuted for aggression before the International Criminal Court as the law now stands.
The point Desmond Tutu is making is that there is a terrible double standard at work. We have an International Criminal Court that is focussed on Africa. Yet perhaps the most serious crimes of our time are committed outside Africa, by non-Africans, as Desmond Tutu explains. He is fed up with hearing talk about international justice and accountability when it is one-sided. His eloquent and principled voice deserves our attention.