First Ratification of Amendment to Rome Statute

Flag of San Marino

The first ratification of the amendment to article 8 of the Rome Statute adopted at the Kampala Review Conference, adding jurisdiction over certain offences committed in non-international armed conflict, has been submitted to the depositary of the treaty, the United Nations Secretary-General by San Marino.
I had initially posted the news that San Marino had ratified the amendments concerning the crime of aggression, but Prof. Bruce Broomhall has corrected me.
I understand that Germany hopes to be the first to ratify the aggression amendments.

Also, the Maldives has become the 118^th State Party to the Rome Statute.

Submission to Prosecutor about Sexual Abuse in the Church

The Centre for Constitutional Rights has made public an application it submitted to the Prosecutor of the International Criminal Court on behalf of the  Network of those Abused by Priests, or SNAP. The application requests that the Prosecutor employ his authority under article 15 of the Rome Statute and begin an investigation into sexual abuse of children within the Catholic Church. The charge is that this amounted to a crime against humanity.
Dov Jacobs has quite a thoughtful and thorough discussion of the application on his blog.

Struggling to Find Judges at the ICC

Yesterday's Financial Times had a front page story entitled 'The Hague Struggles to Find Judges'. It is an astonishing situation. Judges must be nominated by States Parties, and must meet various qualifications including being citizens of a State Party. But States Parties need not nominate their own nationals to be judges. Here are the relevant provisions of the Rome Statute:

Article 36. Qualifications, nomination and election of judges

 ...

3. (a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

(b) Every candidate for election to the Court shall:

  (i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or

   (ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court;

(c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.

4. (a) Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either:

(i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or

(ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court.

Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3.

(b) Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party.

...

7. No two judges may be nationals of the same State.  A person who, for the purposes of membership in the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights.

8. (a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:

 (i) The representation of the principal legal systems of the world;

 (ii) Equitable geographical representation; and

 (iii) A fair representation of female and male judges

(b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.

Cambodia Trial Chamber Rejects Extended form of Joint Criminal Enterprise Liability

In a ruling issued today, the Trial Chamber of the Extraordinary Chambers of the Courts of Cambodia has held that the extended form of joint criminal enterprise liability (known as JCE III), by which persons who commit a crime with a common purpose are liable for the foreseeable offences committed by their accomplices, even if the offender himself or herself did not intend these crimes, did not form a part of customary international law and was not contemplated by general principles of law at the time of the Khmer Rouge atrocities. I think there is a clear divergence here with the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, which set out the theory of JCE III with reference to post-Second World War jurisprudence. This holding may only be of academic interest, because the main theory of the Prosecutors relies upon a more classic form of complicity known as JCE I. It is only in the alternative that the JCE III theory has been invoked.
Thanks to Robert Petit.

Corporate Liability for Human Rights Violations

The Middlesex University law department will deliver a 3-day seminar on “Corporate Liability for Human Rights Violations and International Law” in the offices of Amnesty International in Copenhagen (Denmark) on 28-30 October 2011. For more information on this event and on the pioneering MA Human Rights and Business taught 2 days a month in London (UK) please visit http://www.mdx.ac.uk/humanrights (“Special Events” tab) or contact Dr Nadia Bernaz (+44 (0)20 8411 4957 / n.bernaz@mdx.ac.uk).

Economist Online Debate about Peace and Justice

Richard Dicker of Human Rights Watch writes to announce an online debate concerning peace and justice that The Economist started running this week. Per their Oxbridge debate format, they asked Richard to support the motion 'This house believes that punishing wrongdoers is fundamental to securing lasting peace'. Jack Snyder, the Robert and Renée Belfer Professor of International Relations at Columbia University, is opposing the motion. The debate is being 'moderated' by Bruce Clark. He is one of their correspondents who has written on this topic. The Economist has run several debates for over the last year and they say these 'are often the most popular articles on our site and receive a great deal of reader feedback'. The debate can be found online at www.economist.com/debate.

Honorary Degree Awarded to Kevin Boyle Posthumously

The late Kevin Boyle was honoured on Friday with the award of an honorary doctorate posthumously by the National University of Ireland Galway. Kevin was professor of law at Galway during the 1980s. He launched the Irish Centre for Human Rights at the time. Members of Kevin's family, including his wife Joan, his sons Steven and Mark, and his brother Louis, were present for the ceremony. There will also be a conference at Essex University in November in his honour.

Universal Periodic Review and the Treaty Bodies: Upcoming Conference

The Universal Periodic Review Process and the Treaty Bodies is the subject of a conference being organized by the Maastricht Centre for Human Rights, to take place on 25 November 2011. Human rights practitioners, scholars and students are all welcome to participate in this one-day seminar concerning human rights monitoring in the Universal Periodic Review and by treaty bodies. The seminar seeks to assess the contributions of the Universal Periodic Review Process in relation to the monitoring of state human rights obligations by treaty bodies. In addition, this seminar aims to evaluate the contribution of the Universal Periodic Review Process in the broader context of the functioning of international peer-based supervisory mechanisms, including the OECD, IMF, Council of Europe, ILO, EU, WTO and the African Peer Review mechanism.

Confirmed speakers and participants:

• Michael O’ Flaherty, Professor of Applied Human Rights and Co-Director of the Human Rights Law Centre, University of Nottingham, and member of the UN Human Rights Committee.
• Kees Flinterman, Honorary Professor of Human Rights at Maastricht University and the Netherlands Institute of Human Rights (SIM), and member of the UN Human Rights Committee.
• Andrew Clapham, Professor of Public International Law at the Graduate Institute of International Studies.
• Marianne Lilliebjerg, Interim Programme Director International Advocacy, Amnesty International.
• Thomas Conzelmann, Associate Professor for International Relations and EU External Relations at Maastricht University.
• John Morijn, Senior legal adviser, Department of Constitutional Affairs and Legislation at the  Dutch Ministry of the Interior and Kingdom Relations, and Assistant Professor of human rights law at Groningen University

The final program and registration information for this seminar will be available on the website of the Maastricht Centre for Human Rights. For further information: j.krommendijk@maastrichtuniversity.nl

Flotilla Report Gives Israel a Pass

The report by a UN Commission of Inquiry into the conduct of Israel in its attack on the Flotilla on 31 May 2010 will be issued later today. An advance copy has fallen into my hands. By my reading, Israel comes out rather well from the whole business. Some of its actions are judged 'excessive', but in a more general sense its naval blockade of Gaza is endorsed and the behaviour of those who challenged it is condemned.
Here is a summary of the conclusions of the panel:

i. The events of 31 May 2010 should never have taken place as they did and strenuous efforts should be made to prevent the occurrence of such incidents in the future.

ii. The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.

iii. The flotilla was a non-governmental endeavour, involving vessels and participants from a number of countries.

iv. Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade. The majority of the flotilla participants had no violent intentions, but there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH. The actions of the flotilla needlessly carried the potential for escalation.

v. The incident and its outcomes were not intended by either Turkey or Israel. Both States took steps in an attempt to ensure that events did not occur in a manner that endangered individuals’ lives and international peace and security. Turkish officials also approached the organizers of the flotilla with the intention of persuading them to change course if necessary and avoid an encounter with Israeli forces. But more could have been done to warn the flotilla participants of the potential risks involved and to dissuade them from their actions.

vi. Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable:

a. Non-violent options should have been used in the first instance. In particular, clear prior warning that the vessels were to be boarded and a demonstration of dissuading force should have been given to avoid the type of confrontation that occurred;

b. The operation should have reassessed its options when the resistance to the initial boarding attempt became apparent. 

vii. Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.

viii. The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.

ix. There was significant mistreatment of passengers by Israeli authorities after the take-over of the vessels had been completed through until their deportation. This included physical mistreatment, harassment and intimidation, unjustified confiscation of belongings and the denial of timely consular assistance. 

Moving Day

Today I have taken up a new full-time position as professor of international law in the Department of Law of Middlesex University in London. The lovely house where Penelope and I lived for more than a decade in Oughterard, and that so many colleagues, human rights activists and students have visited over the years, has been sold, alas. We have moved to much smaller premises in north London, although they have the advantage over our village in the west of Ireland of being somewhat closer to Heathrow airport.
I will continue to be associated with the Irish Centre for Human Rights, as part-time professor of human rights law. At Middlesex, I join a dynamic team of scholars, many of them veterans of the Irish Centre for Human Rights. We offer the full range of university degrees, and are working to build our group of doctoral students who study in the field of human rights.
Confucius said: 'They must often change, who would be constant in happiness or wisdom.'
And Samuel Johnson said: 'Why, Sir, you find no man, at all intellectual, who is willing to leave London. No, Sir, when a man is tired of London, he is tired of life; for there is in London all that life can afford.'