Model Codes: Volume 2

Since 2001, the Irish Centre for Human Rights has been the focal point for the development of the 'model codes' for post-conflict justice. Volume 2 has just been published by the United States Institute of Peace: http://bookstore.usip.org/books/BookDetail.aspx?productID=170810. The authors are Vivienne O'Connor, who received her doctorate last year at the Irish Centre for Human Rights, and Colette Rausch.

UN Audiovisual Library of International Law

The United Nations Audiovisual Library of International Law was launched last week: http://www.un.org/law/avl/. It is described as 'a unique multi-media resource which is a core instrument for promoting a greater understanding of the essential role of the United Nations in the field of international law and the creation of a culture that is conducive to the rule of law'.
According to the announcement:

There are three main components: (i) the Lecture Series provides lectures by
eminent law scholars and practitioners from different countries on virtually
every subject of international ; (ii) the Historic Archives contains
introductory notes prepared by internationally recognized , audiovisual
materials recording the history of the negotiation and adoption of significant
legal instruments (e.g., the Charter of the United Nations, the Universal
Declaration of Human Rights, the Genocide Convention, and the Law of the Sea
Convention), the procedural history as well as text of the legal instruments and
other key documents; and (iii) the Research Library provides on-line library of
international law materials, including treaties, jurisprudence, United Nations
and legal publications as well as scholarly writings provided by HeinOnLine.

My modest contribution was the entry on the Genocide Convention.

Obama

Time will only tell how good President Obama will be for the progress of human rights. His agenda is cut out for him: close Guantanamo (and give it back to Cuba, while he's at it); ratify the Rome Statute of the International Criminal Court; get US troops out of Iraq; cut US assistance to Israel until it tears down the wall and withdraws from the west bank; provide all Americans with medical care; appoint some liberal judges to the Supreme Court who will abolish the death penalty. But even if he does none of the above, his election is of huge symbolic importance.
I've put up a few photos of African Americans who helped move the goal posts: Jackie Robinson, the first black to play in major league baseball. He joined the Brooklyn Dodgers in 1949 after a trial run with the Montreal Royals. The Dodgers manager had sent Robinson to Montreal to prepare him for the big move. Robinson lived among French Canadians, who welcomed him warmly in a manner still unthinkable if he had tried to live with white Americans. Thurgood Marshall, the first African-American judge of the United States Supreme Court. He was appointed in the 1960s, after leading epic judicial battles for equality as counsel for the National Association for the Advancement of Coloured People, including the historic Brown v. Board of Education decision that was the beginning of the end for segregation in education. And now, Obama.
This is a defining moment in the struggle against racial discrimination that has been so central to the modern human rights movement, both within the United States and internationally.

New President and Vice-President at Yugoslavia Tribunal

Judge Patrick Robinson (Jamaica) and Judge O-Gon Kwon (South Korea) were today elected as President and Vice-President of the International Criminal Tribunal for the Former Yugoslavia by the permanent judges in an Extraordinary Plenary Session. The appointments are effective 17 November 2008.
Thanks to Eadaoin O'Brien.

Abolition of the Death Penalty in Chinese

This is the Chinese translation of my book The Abolition of the Death Penalty in International Law, just published by the Chinese Law Press, which is said to be the top legal publishing house in China. It was translated by Zhao Haifeng, who worked at the Irish Centre for Human Rights some years ago, and who is now dean of the College of Law at the Harbin Technical University. The debate continues to progress in China, and it is my hope that gthe availability of books like this will influence opinion in the right direction. The translation was made possible by generous support from the Irish Department of Foreign Affairs.

Joint Criminal Enterprise at the Cambodia Tribunal

Last month, Prosecutors at the Extraordinary Chambers in the Courts of Cambodia pushed for the inclusion of the joint criminal enterprise theory of liability in the case against Kaing Guek eav, a.k.a. 'Duch', the former commander of Tuol Sleng prison (http://www.eccc.gov.kh/english/cabinet/courtDoc/129/CP_appeal_on_closing_order_Duch_D99_3_3_OCP_Appeal_EN.pdf) . 'Duch' is the youngest of the accused, aged 65, and is charged with crimes against humanity relating to the S-21 prison, a former school in Phnom Penh. In response to the Prosecutor’s appeal, the Pre-Trial Chamber issued several public invitations to particular individuals or organisations requesting amicus curiae submissions which would look at:
(1) the development of the theory of joint criminal enterprise and the evolution of the definition of this mode of liability, with particular reference to the time period 1975-9;
(2) whether joint criminal enterprise as a mode of liability can be applied before the Extraordinary Chambers, taking into account the fact that the crimes were committed in the period 1975-9 (See for example http://www.eccc.gov.kh/english/cabinet/courtDoc/138/D99_3_12_EN.pdf.)
Joint criminal enterprise has caused some controversy at the International Criminal Tribunal for the former Yugoslavia, partly because of its lack of a clear statutory basis and its weak foundations under customary international law, and it has been fairly definitively rejected in early rulings of the International Criminal Court. Its use at the Extraordinary Chambers should prove no less problematic given that the applicable law limits criminal responsibility to those who "planned, instigated, order, aided and abetted or committed" crimes and to those superiors who fail to prevent or repress crimes.
This week, the Pre-Trial Chamber received detailed amicus curiae briefs from the Centre for Human Rights and Legal Pluralism at McGill University (http://www.eccc.gov.kh/english/cabinet/courtDoc/165/D99_3_25_EN_McGil.pdf), Professor Cassese et al. (http://www.eccc.gov.kh/english/cabinet/courtDoc/163/D99_3_24_EN_Cassese.pdf) and Professor Ambos (http://www.eccc.gov.kh/english/cabinet/courtDoc/164/D99_3_27_EN_Ambos.pdf) . Professor Cassese argues that all three categories of joint criminal enterprise were recognised as customary international law in 1975-79, while Professor Ambos contends that this is only the case for the first category. The McGill submission notes the weakness of the supporting caselaw cited in the seminal decision of the International Criminal Tribunal for the former Yugoslavia (Tadic Appeals Chamber, 15 July 1999) but finds that 'there is some evidence to support the general existence of the third category of JCE already in the early years after the Second World War".
The Extraordinary Chambers may have enough issues to deal with under the principle of legality, without resorting to a particularly problematic doctrine that has very weak foundations under customary international law, probably even more so thirty years ago.
Thanks to Dr Shane Darcy, who prepared this note.

Genocide Conference in Paris on 9 December

The Genocide Convention was adopted in Paris on 9 December 1948. Many activities to commemorate this important event will be held in the coming weeks, including a conference in Paris to be held on 9 December: http://www.pressesdesciencespo.fr/evenements/?fa=event&event_id=41

Ugandan Arrest Warrants Being Reconsidered by Pre-Trial Chamber

The first arrest warrants issued by the International Criminal Court concerned the Situation in Uganda, and resulted from the self-referral by the Government of Uganda in December 2004. These arrest warrants, issued more than three year ago (first under seal, then publicly), have never actually been executed, and it is reported that probably two of the five suspects are now dead. In the meantime there have been significant developments in the Ugandan peace process. On 21 October 2008, the Pre-Trial Chamber responsible for the Situation in Uganda made an order under article 19(1) of the Rome Statute in which it decided to examine the admissibility of the cases: http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-320-ENG.pdf. This is the first time such a proceeding has ever been taken.
When it issued the arrest warrants in 2005, Pre-Trial Chamber II said that the cases appeared to be admissible, but made no detailed examination of the matter. In its order of 21 October 2008, the Pre-Trial Chamber points to political agreements that are part of the peace process, including their call for the establishment of special judicial mechanisms aimed at dealing with atrocities.
Of some note is a reference in the decision to the Appeals Chamber decision of July 2006, discussed in the previous entry in this blog. The Pre-Trial Chamber cites the Appeals Chamber as authority for its right to consider the issue of admissibility on its own motion.
What I am unclear about is where this all leads? If the Pre-Trial Chamber concludes that the cases are still admissible, it doesn’t advance things very much. It might just as well have ignored the issue. If, on the other hand, it concludes they are not admissible, what happens next? Article 58(4) says: ‘The warrant of arrest shall remain in effect until otherwise ordered by the Court.’ But this looks rather like the Pre-Trial Chamber considering an appeal of its own earlier decision to issue an arrest warrant. It is not obvious to me that it has the authority to do this under the Rome Statute, nor that it is wise for it to do this as a matter of judicial policy.

Laws of Gravity Finally Revealed by Appeals Chamber

In February 2006, a Pre-Trial Chamber of the International Criminal Court issued a ruling authorizing an arrest warrant of Thomas Lubanga Dyilo. Trial in this case was due to begin in June 2008, and is now postponed indefinitely. The February 2006 ruling contained an important discussion of admissibility issues before the Court, and has been much discussed and commented upon (and taught by lecturers like myself) since then. It was the only serious judicial pronouncement on the subject by a Chamber of the Court. Of particular note was its insistence upon the issue of ‘gravity’ as a factor in determining whether a case was admissible (see art. 17(1)(d)). That decision was never appealed because all concerned - the Prosecutor, the victims (or their representatives) and even the defendent himself - were delighted that the case would be transfered to The Hague.
What we have only learned in recent weeks is that on the same day in February 2006, the Pre-Trial Chamber dismissed another application for an arrest warrant, in the case of Bosco Ntaganda, on the grounds that it was not of sufficient gravity: http://www.icc-cpi.int/library/cases/ICC-01-04-02-06-20-Anx2-ENG.pdf. That decision was appealed by the Prosecutor, and overturned by the Appeals Chamber in July 2006: http://www.icc-cpi.int/library/cases/ICC-01-04-169-tFRA.pdf (note that on the Court’s website the French and English versions of the judgment are transposed, so for the time being one needs to click on ‘French’ in order to get the English version). A few weeks afterward the Appeals Chamber judgment, in August 2006, the same Pre-Trial Chamber issued an arrest warrant for Bosco Ntaganda, but under seal.
The Appeals Chamber decided to make its ruling public in late September 2008. The Appeals Chamber was dismissive of the theories advanced by the Pre-Trial Chamber about gravity, and dramatically reduced the significance (if any) of the gravity issue as a condition for admissibility of a case. It is an important decision in terms of the law of the Court. What a curious institution it is, to keep a truly seminal ruling of its Appeals Chamber on a key point of law a secret for more than two years!
The Ntaganda materials were kept under seal at the Prosecutor’s request. Now the Prosecutor says he suspects that Ntaganda knows of the arrest warrant, so there is no longer any point in the secrecy.
Keeping arrest warrants secret proved to be a rather questionable strategy at the International Criminal Tribunal for the former Yugoslavia, and I believe that it was soon abandoned, with perhaps a few exceptions. The opposite has been the case at the International Criminal Court, although as with the Yugoslavia Tribunal it does not appear to have produced very much. And of course we now have a very striking contrast in the application for an arrest warrant for the president of Sudan, which was made public even before being issued by the Pre-Trial Chamber. Probably publicity rather than secrecy is more helpful in bringing suspects to justice, as a general rule.

Unexplained (and Unacceptable) Delays at the International Criminal Tribunal for Rwanda

A year ago, in November 2007, the International Criminal Tribunal for Rwanda provided the Security Council with an update on its ‘Completion Strategy’ (http://69.94.11.53/default.htm). The Tribunal was about to complete a year in which only one judgment involving one defendant had been issued (not counting two judgments based upon guilty pleas), but it explained to the Security Council that decisions concerning nine defendants in six trials were in the pipeline, and would be issued within the first half of 2008 (see p. 21). This seemed an acceptable explanation at the time. But as of 1 July 2008, not one of the promised decisions had been rendered. A judgment involving one of the accused was issued in late September 2008. That’s it. Trial in one of the cases, known as ‘Military I’ (Bagosora et al.), finished in mid-2007, that is, sixteen months ago, and there is still no judgment. Bagosora has been in pre-trial detention since 1996!