Summer Schools at Irish Centre for Human Rights

Every year the Irish Centre for Human Rights hosts several summer schools on aspects of international human rights law.  The International Criminal Court and Minority Rights Summer Schools are both very well-established, having run for ten consecutive years now.  This year they are joined by the Summer School on Cinema, Human Rights, and Advocacy which focuses on the use of filmmaking as a tool of human rights advocacy.  For more information on the summer schools visit: http://www.nuigalway.ie/human_rights.

Psychologists Propose Broadening the Definition of Torture

In a new study, two psychologists claim that the international legal definition of torture is 'psychologically untenable' and argue that is should be broadened significantly.The researchers focus on the term 'severe' as it is used to describe 'physical or mental pain or suffering', and suggest that there is a strong tendency to underassess severity. Perhaps the problem they raise can be solved by interpreting the definition rather than revising it. They make a good case for a broad understanding of 'severity'. This is an interesting example of interdisciplinary issues in human rights.
Thanks to David Scheffer.

Déjà vu All over Again

On the Intlawgrrls blog, Beth van Schaack writes about a debate concerning the aggression amendment package to the Rome Statute of the International Criminal Court at the Review Conference in Kampala last year. Beth was an academic member of the United States delegation at the Conference.

The issue concerns the possible jurisdiction of the Court over States Parties to the Rome Statute that do not ratify the amendments. One reading of the amendments suggests that they enter into force with respect to all States Parties once thirty ratifications have been obtained and the resolution of the Assembly of States Parties is adopted. A State Party that does not want to accept the jurisdiction of the Court to prosecute aggression may make a declaration by which it opts out of the regime. Readers are referred to the text of article 15bis. Another reading of the amendments suggests that they only enter into force with respect to States that have ratified the amendments. This is the reading that Beth appears to favour.

Beth says that this debate ‘threatens the very legality of the amendment package. It is important to gain precision on this point so that the world’s legislative bodies can make informed policy choices about the propriety of ratification.’

There is no doubt that this is an interesting debate about interpretation of the amendments, which inevitably have their ambiguities. But it is hyperbole to claim that the problem ‘threatens the very legality of the amendment package’.

Most laws have ambiguities. The United States constitution has ambiguities. That helps explain why there are so many decisions that are 5-4 or 6-3, and why from time to time the Court reverses its precedents.

The Rome Statute, too, is not without many ambiguities. These are being clarified over time by the case law of the Court. Some ambiguities may never be resolved, because real disputes will simply not arise and clarification will therefore not be required.

What exactly is the serious threat raised by the ambiguity about the application of the amendments to States Parties that do not formally ratify them?

Most of them will never be concerned by this issue because most States never commit aggression. They don't even come close. Their only concern is being protected from aggressors.

For example, although Ireland has an army, its soldiers never leave the country unless they are wearing a blue helmet and they have a Security Council resolution in their pocket. They aren’t worried about being prosecuted for aggression.

There are a few States Parties with big armies who like to use them in various parts of the world. If they don’t ratify the amendments and want to make sure they are not subject to the Court’s jurisdiction, then there is a very simple solution: they can make the declaration that is provided for in article 15bis.

The idea that there are States Parties who are not inclined to ratify the amendments but who are concerned about the jurisdiction of the Court being exercised over them and who are either unwilling or unable to make a simple declaration sounds like a moot court problem rather than something that could happen in the real world.

This sort of talk reminds me of the attacks on the Rome Statute that emanated from the United States in the years following its adoption. Creative academics and lawyers in the State Department concocted arcane scenarios and interpretations of provisions of the Statute in an effort to show it was fatally flawed in some respect. This generated a certain amount of ephemeral hysteria in some circles. But the Statute did enter into force, problems were solved, provisions were tweaked in the Rules of Procedure and Evidence, and the Court operates.

That is what will happen with the crime of aggression too. At the last Assembly of States Parties, several delegations indicated their intention to ratify the amendments in the near future. Others have said the same in different contexts. Getting to the required thirty ratifications by 2017 should not be a problem at all.

It is unfortunate that the big NGOs and the Coalition for an International Criminal Court are not engaged in encouraging this process. But all they are proving is that the process goes on without them. Perhaps we will come to reassess the significance of the legendary NGO contribution to the Rome Statute when we see that this essentially State-driven process goes on whether or not they are involved.

Louise Arbour on the Future of Human Rights

Former United Nations High Commissioner for Human Rights Louise Arbour delivered a speech a week or so ago entitled 'The Rise and Fall of International Human Rights'. As always, it is thoughtful and somewhat provocative. In particular, she comments on the recent developments in Libya. On the role of the International Criminal Court, she says:

The increasing entanglement of  justice and politics is unlikely to be good for justice in the long run. To make criminal pursuits subservient to political interests, activating and withdrawing cases as political imperatives dictate, is unlikely to serve the interest of the ICC which must above all establish its credibility and legitimacy as a professional and impartial substitute for deficient national systems of accountability. I’m not sure that partnership with the Security Council is the best way to attain these objectives.

The tone is positive and upbeat in many respects, and I'm not sure I get the title. Required reading. Louise Arbour is President & CEO of the International Crisis Group. Her talk was the Sir Joseph Hotung International Human Rights Lecture 2011, and was delivered at the British Museum on 27 April 2011.
Thanks to Yvonne McDermott.

Kindler and Death Row

Joseph Kindler's name is well known to those who follow capital punishment case law. Convicted of murder in Pennsylvania and sentenced to death, he managed to escape and flee to Canada. There he challenged his extradition, losing by a four to three vote in the Supreme Court of Canada. Ten years later, in Burns & Rafay, the Supreme Court of Canada reversed the precedent it had set in 1991. Kindler's lawyer contested the Supreme Court decision before the United Nations Human Rights Committee. The Committee issued an interim order to Canada so that he would not be sent to the United States pending the consideration of the application, but Canada defied the request. The Minister of Justice at the time said that she would provide an explanation, but one was never forthcoming. Kindler lost before the Human Rights Committee a few years later. But that decision was also reversed by the Committee a decade hence, in Judge v. Canada. Kindler seems still to be alive and well. His death sentence was set aside a few days ago in a ruling of the Third Circuit Court of Appeals, on remand from the Supreme Court of the United States.
Thanks to Mark Warren.

More on Bin Laden Murder

Professor Kai Ambos of the University of Göttingen has written a very good article on the Bin Laden murder, published a few days ago in Le Monde (in French) and in FAZ (in German). There is a more elaborate version of his views in Speigel on line. Also, readers are referred to Geoffrey Robertson's article in The Daily Beast.

Asylum Claim by Witnesses at International Criminal Court

Three Congolese witnesses, brought to The Hague at the request of the defence in the Katanga case, have presented the judges of the Trial Chamber with a claim for protection. The matter was considered in a Status Conference on Thursday, for which the transcript is available. There is also an account of this on the Hirondelle News Service. The witnesses have their own counsel, who is appointed and remunerated by the Court. The authorities of The Netherlands were also present at the Status Conference.
As I understand the dispute, the three witnesses are in the custody of the Court and are asking the Trial Chamber not to hand them over to the Dutch authorities given the risk they will be returned to the Democratic Republic of the Congo.
It seems this situation is unprecedented in international criminal law. The Headquarters Agreement between The Netherlands and the Court does not contemplate this sort of development. There are cases at the International Criminal Tribunal for Rwanda of acquitted persons who remain in Tanzania as they have nowhere else to go (except Rwanda, and they refuse to return there).

Article 93(7) of the Rome Statute governs the transfer of witnesses:

7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.

What are the obligations of the international tribunal in such circumstances? Aside from the provisions of the Refugee Convention, which are somewhat narrow in scope and which also have exclusion clauses for persons suspected of perpetrating international crimes, international human rights law prohibits the refoulement of an individual to a state where he or she would be subject to a real risk of torture, killing, and possibly other violations such as those concerning the right to a fair trial. On this, see the workshop of the Organization for Security and Cooperation in Europe of a few years ago. It is a bit out of date, in that it was prior to the Saadi v. Italy decision of the European Court of Human Rights. Indeed, it is not beyond the realm of possibility that this case ends up before the European Court of Human Rights.
Amongst those who made representations before the Trial Chamber on Thursday was Cyril Laucci, a lawyer with the Registray. By coincidence, Cyril met with students at the Irish Centre for Human Rights on Tuesday. He was asked by one of them whether it was a bit dull to work at the Registry. It sure doesn't sound dull to me!
During the Conference, Judge Van den Wyngaert raised the role of article 21 of the Statute, which reads as follows:

1. The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;...

The hearing continued yesterday (Friday) but the transcript is not yet available on the website of the Court.

Thanks to Yvonne McDermott and Niamh Hayes.

Judgment on Evidentiary Issues from Appeals Chamber of the International Criminal Court

The Appeals Chamber of the International Criminal Court has just issued a very interesting judgment on evidentiary matters. In the Bemba case, the Trial Chamber admitted a raft of documents that were part of a list submitted by the Prosecutor. The Chamber said they were prima facie admissible. On appeal, both the accused and the Prosecutor challenged this method of admitting evidence. The Appeals Chamber granted the appeal. It insisted that evidence cannot be admitted in bulk, and that the Trial Chamber must make an individual determination in each case.
Although the judgment does not frame the discussion in terms of competing legal traditions, it struck me that this is a matter that sits at the fault line between the inquisitorial and adversarial systems. In the inquisitorial system, evidence would be admitted in bulk at trial based upon a file already prepared (by a judicial official), whereas in the adversarial system evidence must be presented and formally admitted, subject to various challenges. This decision is important in terms of positioning the Court with respect to the two legal traditions.

Doctoral Seminar 2011

Party at my home in Oughterard for the doctoral students and distinguished visitors.

Last week, we held the tenth annual doctoral seminar at the Irish Centre for Human Rights. More than thirty doctoral students attended the event, which included student presentations, sessions on skills, and scholarly  presentations by invited outside experts. Our two visitors this year were absolutely stellar: Patricia Sellers, a Brussels-based international criminal lawyer who worked for more than fifteen years as gender advisor to the International Criminal Tribunal for the former Yugoslavia; and Professor Iain Scobbie, of the School for Oriental and African Studies in London. We are immensely grateful to both of them.
This must be the largest such gathering of its kind in the world. The breadth of topics covered was enormous. It was enriching for the faculty who participated, and very stimulating for the students.
Thanks to Niamh Hayes for the photo.

Murder in Pakistan

It is perhaps a bit reckless to venture an opinion on the killing of Bin Laden until we have more information, especially given the somewhat contradictory versions that the United States has been providing. Credible reports indicate that when he was killed, Bin Laden was in his bedroom and he was unarmed. He was accompanied by his wife, and apparently a child was also present. He did not, contrary to early reports, use his wife as a 'human shield' although she may well have tried to prevent her husband from being killed, which should not surprise anyone. He was in his mid-50s and has been on kidney dialysis for many years.
If these facts are true, the killing of Bin Laden should be described as murder. In international human rights law, we would use the term 'extrajudicial, summary or arbitrary execution'. Such murder is obviously contrary to international law, it is contrary to the laws of Pakistan and it is contrary to the laws of the United States.
I don't even think that it is very useful in these circumstances to look at cases of 'targeted killings' using drones or other remote devices. This is a situation where the victim appears to have been under the physical control
of the perpetrators at the time he was killed.
Almost a year ago, the Grand Chamber of the European Court of Human Rights issued an important ruling concerning the execution of Latvian peasants who had apparently sided with the Nazis during the Second World War. Many years later, the war hero who was responsible for the killings was prosecuted for war crimes. The European Court confirmed that summary execution was a war crime some 65 years ago. Nothing has changed since then. There is no legal exception that allows American soldiers to sneak into a country, confront an unarmed man in late middle age and to kill him, whatever the nature of the crimes of which he is suspected.
One can sympathize with those who lost their loved onces on 11 September. But the sort of grotesque gloating that was shown on American television reminded me of the 'Ding Dong the Witch is Dead' scene in The Wizard of Oz. I was rather shocked yesterday to hear the Irish Minister of Foreign Affairs being interviewed on the subject. When asked about whether the killing of Bin Laden was legal, all he could do was repeat trite phrases like 'the victims of 9/11 were also killed without warning or trial'. He meant this as a justification for the US action. But in reality, he was saying 'the US are no better than Al Qaeda'.
According to international human rights law, Pakistan has a duty to bring the perpetrators of this murder to justice. Bin Laden had a right to a fair trial, like anyone else.
I have couched these comments in a caveat about knowing more facts. The United States government is the only body in possession of the facts. It has a duty to make things clear. There can be no doubt that the whole business was well-documented and that the soldiers involved had video-cameras on their helmets. Possibly, they were acting in self-defence. But in any court of law, he or she who invokes self-defence as a justification for killing another human being has a burden of proof to demonstrate that the action was proportional, and that the threat to the lives of those who did the killing by the victim was genuine. Case law would not provide many precedents to suggest that armed intruders who surprise an older man in his own bedroom can invoke self-defence successfully. There are other means - Tasers, tear gas, etc. - that enable a suspected criminal to be taken into custody if there is a fear of life-threatening response. Case law on this is also quite clear: see the European Court decision in McCann.
But who knows? So show us the films and we can all decide.
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