Krstić in Poland

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Radislav Krstić, who was convicted of aiding and abetting genocide by the International Criminal Tribunal for the former Yugoslavia and sentenced to 35 years’ imprisonment, was transferred to Poland where he is to serve the remainder of his sentence.  Krstić was originally sent to the United Kingdom. There he was brutally attacked by other inmates. He was subsequently transferred to the Detention Unit in The Hague because he was a witness in ongoing proceedings. After much hesitation, he has now been sent to Poland.

Krsti?  arrived last Saturday and has been placed in a form of interim detention for a two-month period after which he is to be moved to a prison. Polish courts have not yet decided how his sentence will be adapted to the realities of Polish law. Under national legislation, he is entitled to ask for pardon or conditional release after serving 15 years of his sentence. When he was in Britain, the date of eligibility for parole was set as 1 June 2016, just over two years from now. But under Polish law he may already be eligible for parole, given that his sentence is calculated from 3 December 1998 when he was first taken into custody by the Tribunal. Polish law does not contemplate a custodial term longer than 25 years’ imprisonment, although it permits a sentence of life imprisonment.

There is much information on earlier stages in the proceedings concerning the detention of Krstić in an article by Oktawian Kuc in the 2012 edition of the Polish Yearbook of International Law. There is also a decision concerning his detention issued by the United Kingdom High Court dated 13 August 2010 ([2010] EWHC 2125 (Admin)).
Thanks to Karolina Wierczynska.

Starvation as a Crime Against Humanity

The thorough and detailed Report of the Commission of Inquiry on North Korea includes a very complete discussion of crimes against humanity. One of the more innovative aspects of the Commission's discussion concerns mass starvation, something that has been a feature of life in North Korea for many years. The Commission concludes that mass starvation resulting from policy decisions constituted a crime against humanity. The relevant part of the Report begins at paragraph 1115. The Report explains that North Korea had become reliant upon the Soviet Union and China to make up its own deficiencies in food production. But by the 1990s, it could no longer meet its needs for food in this way. The Report continues (at para. 1121):

With a famine already underway, relevant DPRK officials adopted a series of decisions and policies that violated international law and aggravated mass starvation. This greatly increased the number of people who subsequently starved to death. The archives of the DPRK may one day provide greater insights into the underlying motivations. Based on the testimony and other information available to it, the Commission could not conclude that DPRK officials acted with the subjective purpose of starving its general population or even a part thereof to death. However, according to the findings of the Commission, the authorities were fully aware that a number of decisions they took in the 1990s would greatly aggravate mass starvation and the related death toll in the ordinary course of events. They nevertheless took these decisions because they prioritized the preservation of the political system of the DPRK, the Supreme Leader and the elites surrounding him. As noted above, this level of criminal intent is sufficient for the crime of extermination.

This is among the very interesting findings of the Commission. Its Report runs to more than 370 pages. 

Call for Papers: Proof in International Criminal Trials

From 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials, kindly funded by the British Academy. Here is the conference abstract:

“There is now an impressive body of literature on the precise scope, context and application of evidentiary rules in international criminal trials. However, the issues surrounding proof and reasoning on evidence in international criminal law have remained relatively under-examined to date. By bringing together judges, practitioners and leading scholars on evidence, international criminal procedure and analytical methods, this conference will comprehensively address issues related to proof in international criminal proceedings. These issues include, inter alia, the means by which inferences are drawn, how reasoning on findings of fact is articulated in judgments, and how witness credibility is assessed. Participants will analyse some of the challenges of fact-finding in the complex context of international criminal trials, which often involve large masses of evidence and hundreds of witnesses.”

Confirmed speakers include:
• Professor Terence Anderson, University of Miami;
• Professor Nancy Combs, College of William and Mary School of Law;
• Judge Teresa Doherty, Residual Special Court for Sierra Leone;
• Professor John Jackson, University of Nottingham;
• Dr Mark Klamberg, University of Uppsala;
• Dr Yassin M’Boge, Leicester University;
• Dr Yvonne McDermott, Bangor University;
• Professor Paul Roberts, University of Nottingham;
• Professor William Twining, University College London.

There are still a limited number of places available for those who would like to present a paper at the conference. Please contact y.mcdermott@bangor.ac.uk for further information.

Some Thoughts on the Katanga Judgment

Readers of this blog will doubtless be aware that the ICC’s Trial Chamber II convicted Germain Katanga of murder as a crime against humanity and four counts of war crimes on Friday, 7 March. The judgment includes a 170-page 'minority opinion' from Judge van den Wyngaert, and a ‘concurring opinion’ from Judges Cotte and Diarra. It is unprecedented, and quite bizarre, for a majority of judges to issue a joint separate opinion concurring with themselves (this is something we can usually take as a given).

The Rome Statute introduces a requirement that crimes against humanity must be committed as part of a ‘state or organisational policy’. In a dissenting opinion in the Ruto et al. confirmation decision, Judge Kaul argued that an organisation, for these purposes, had to be ‘state-like’. The Katanga judgment, referring to the object and purpose of the Statute, held that a requirement that the organisation possess quasi-state characteristics would not enhance the aim of the Statute to punish those who have committed the gravest crimes (para. 1121). Instead, the sole requirement for an organisation in this context is the means and resources to carry out an attack on the civilian population. This reasoning essentially renders the requirement of a pre-existing organisational policy an irrelevance – once an attack has been carried out, it will suffice that the perpetrators had the ability to carry out such an attack for them to be considered an ‘organisation’.

Similarly circular reasoning is found in the judgment on the ‘policy’ requirement. The Chamber noted that, in most cases, the existence of a prior policy to carry out an attack on the civilian population will have to be inferred, after the fact, from an examination of the attack. It noted (para. 1110) that a policy in this context ‘may face an evolutionary process’ that might not be set in stone from the outset of the attack, or even when the attack against civilians has commenced. This means that the policy requirement will be met when the Chamber is convinced that an attack has in fact taken place. In effect, what had been seen as an additional burden for the prosecution to prove – the existence of a state or organisational policy to carry out an attack against a civilian population – has been relegated to a requirement to prove simply that an attack took place.

On the classification of the armed conflict as non-international, the Chamber determined that the Ngiti fighters in Walendu-Bindi were an organised armed group. This was despite the fact that the group did not have a single name that they acted under, or an identified leader, or a clear chain of command. The Chamber felt that it ‘could not adhere to the defence thesis’ (para. 680) that these were relatively autonomous groups. However, as Judge van den Wyngaert pointed out in her dissenting opinion, judges are not obliged to accept one party’s theory of the case over another, but rather consider whether an alternative explanation offers reasonable doubt on the guilt of the accused.

At trial, Katanga waived his right to silence and testified about his role as co-ordinator. This was relevant to his defence under the original charge under Article 25(3)(a), which required that he had control over the perpetrators. However, under the new mode of liability, precisely this testimony was used as a basis of his conviction because, the Chamber held, he had illustrated his ‘significant contribution’ for the purposes of Article 25(3)(d). This clearly raises issues on the right to freedom from self-incrimination and will have an immeasurable impact on defence strategies in future cases, given that it is now foreseeable that defence evidence may be used against the accused in amended charges.

Lastly, the rather shocking remark, at paragraph 70 of the judgment, must be noted. The Chamber stated that just because the accused has not been convicted of certain charges, it does not mean that he is actually innocent, just that there was insufficient evidence to prove him guilty beyond reasonable doubt. How any judge can reconcile such a statement with the presumption of innocence is a mystery.

French Courts Refuse Extradition for Genocide

The French Cour de cassation ruled yesterday that three Rwandans suspected of genocide could not be extradited to Rwanda to stand trial. The reason given for the Court was that the crime of genocide did not exist in Rwandan law at the time of the offence, in 1994. This is a highly technical objection, vulnerable to attack as a question of law, and a ruling that will only confirm suspicions that the French legal system lacks any determination to bring perpetrators of genocide to justice.

At the time of 1994 genocide, Rwanda had ratified the Convention. Because of its constitutional framework, an international treaty was directly applicable before the national courts. Thus, the crime of genocide most certainly existed under Rwandan law in 1994. However, legislation setting out the penalty for the crime was not adopted until 1996. The legislation was deemed to be retroactive in effect. In Rwanda, many thousands have been prosecuted on this basis for genocide committed in 1994. The world has praised Rwanda for its efforts to bring perpetrators to justice on this basis.

The problem of retroactivity of the Rwandan legislation is adequately addressed by article 11(2) of the Universal Declaration of Human Rights: ‘No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.’ The problem of the lack of a penalty in force in 1994 is adequately addressed by the fact that penalties were provided under Rwandan law at the time for the underlying crimes of killing and causing serious bodily harm.

How can France’s position be squared with its own support for the International Criminal Tribunal for Rwanda, where suspected génocidaires have been prosecuted on the basis of legislation adopted after the crimes were committed? France was one of the four States to create the International Military Tribunal in 1945, an institution that prosecuted Nazi offenders on the basis of legislation adopted after the crimes were committed. France was a party to the Treaty of Versailles where the German Emperor was arraigned to stand trial for ‘a supreme offence against international morality and the sanctity of treaties’, a crime that had not previously been codified. Double standards?

The International Criminal Tribunal for Rwanda has transferred offenders to stand trial before Rwandan courts without being troubled by this retroactivity issue. The courts of other countries – Canada and Sweden for example – have agreed to extradite suspects to Rwanda without this difficulty arising.

At the time of the 1994 genocide, France supported the Rwandan regime. I vividly recall encountering French forces in the country when I visited Rwanda in early 1993 as part of a fact-finding mission. Apart from the intriguing issue as to whether any French complicity in the genocide of 1994 can ever be established, one thing seems quite clear: France had extraordinary influence over the regime. It certainly could have done much more than it did to pressure those in power in Kigali in April and May 1994 to stop the massacres.

In 2007, the International Court of Justice held that Serbia had a duty under the Genocide Convention to use its influence on the Bosnian Serbs in order to prevent genocide. Surely the same principle applies to France in its relationship with Rwanda.

When universal jurisdiction proceedings are held in France, Spain, Belgium and other European states, Rwanda and other African countries have complained that double standards are at work. They argue that such trials are tinged with hypocrisy because of the reluctance of such States to apply international justice in a principled manner. Who can blame them, when there are judgments like the one issued yesterday?

Thanks to Richard Johnson.

Cinema and Human Rights Days

March 14 – 16, 2014 | Gordon Square Cinema, Birkbeck, University of London, WC1H OPD

Cinema and Human Rights Days is running this year with a full weekend programme of screenings and discussion at the Gordon Square Cinema, Birkbeck. The event takes place on Friday evening, 14th March, Saturday 15th March and Sunday, 16th March, 2014, and is a collaboration between Birkbeck, Middlesex University, the Huston School of Film and Digital Media at the University of Galway, Ireland and is supported by Open Society Foundations.

Cinema and Human Rights Days seeks to provoke discussion and debate about the impact of cinema in documenting political struggles and exposing human rights abuses and there will be a number of speakers introducing screenings and contributing to sessions.  Some of the issues discussed will be: What difference do films, videos and digital media make to public debates about human rights issues? How can we begin to assess the work of filmmakers and political activists using film and video to campaign for justice and democracy, or the use of digital media for human rights advocacy on the internet? Who are the subjects of human rights films and what is the nature of human rights discourse in film? One of the key themes this year for Cinema and Human Rights Days is the recent spate of films that addresses the role of perpetrators of crimes against humanity.
Speakers include:

·         William Schabas, Professor of International Law at Middlesex and author of many books on human rights law, who will introduce the Universal Declaration of Human Rights through film;
·         Rod Stoneman, Professor of Film and Director of the Huston Centre of Film and Digital Media, film producer and author, and former deputy Commissioning Editor of the Independent Film and Video Department of Channel 4 Television and Chief Executive of Bord Scannán na hÉireann/ the Irish Film Board, who will discuss The Freedom to Speak.
·         Other speakers include, Sue Clayton, Gareth Evans, Dr. Jacqueline Maingard, Dr. Emma Sandon.

There will be a feature-length screening each day, as well as short films and extracts.
Cinema and Human Rights Days will start by hosting a screening of the award-winning Best Documentary in the BAFTA 2014 and Oscar-nominated Director’s Cut of The Act of Killing (159 mins) directed by Joshua Oppenheimer about perpetrators of mass killings in Indonesia in 1965-66. The film will be introduced by Gareth Evans, writer, producer and curator of the Whitechapel Gallery.
Saturday lunch-time, filmmaker Sue Clayton will show her short film, Hamedullah (23 mins) which highlights the plight of child refugees in Britain, by focussing on an Afghan boy who was deported from the UK and sent back to Afghanistan. She will present other material she has filmed about children refugees in Britain, and discuss how her films have led to campaigns to change the law in Parliament.
Saturday evening’s screening will be an opportunity to see the new film by South African filmmaker, Marc Kaplan, TheVillageunder the Forest, on the eradication of the village of Lubya in Palestine, through the planting of a forest paid for by the Jewish National Fund. It will be introduced by Dr. Jacqueline Maingard, University of Bristol, who will introduce the film by discussing the director’s films on perpetrators of apartheid atrocities, and his commitment to human rights and social justice..
The Sunday afternoon screening will be John Pilger’s new film, Utopia (2013) about indigenous Australians’ struggle for equality and justice. This polemical and controversial film screened in Australia and recently on British television, will be introduced by one of the film’sproducers.

The event is free of charge. However places are limited, so registration is essential. You need to register for each day you wish to attend.

See the full programme and please register through the following link: http://www.bbk.ac.uk/arts/news/cinema-and-human-rights-days

For further information please email Claudia Modonesi cmodonesi@hotmail.com

State Legitimacy and Failure in International Law

An important new contribution to the literature on failed states is this new book by Mario Silva entitled StateLegitimacy and Failure in International Law, published by Brill Nijhoff.

Mario Silva served for many years as a Member of Parliament in Canada. Last year, he was chair of the The International Holocaust Remembrance Alliance. The book is based upon the doctoral thesis that he successfully defended at the Irish Centre for Human Rights.

Doctoral fellowships at Middlesex University

My University is offering doctoral fellowships for students in a range of areas, including international human rights law and international criminal law. There are very attractive fellowships that provide funding for the degree, including both tuition and subsistence. I would encourage readers of the blog to apply, and to spread to word to other who may be interested.
My personal hope is that one or two of these fellowships will be awarded to a student who will complete the degree under my supervision.
Note that the deadline for applications is 14 March. For more information: http://www.mdx.ac.uk/research/applications/fees/bursaries/law.aspx.

Moratorium on death penalty in Washington State

Further evidence of the decline in capital punishment in the United States comes with the announcement by Governor Inslee of Washington State of a moratorium on capital punishment.

According to a statement by the International Commission against the Death Penalty, Governor Inslee said the moratorium would last for as long as he is in office. Following months of review including meetings with victims’ families, law enforcement experts and prosecutors, he concluded that there are ‘too many doubts’ about capital punishment. According to the Governor, the capital punishment system ‘does not deter crime, costs citizens millions of dollars more than life in prison without parole’, is ‘unequally applied’ and ‘exposes families to multiple decades of uncertainty’.

Governor Inslee told reporters that he hopes the moratorium will allow Washington State to ‘join a growing national conversation about capital punishment’, and that he would support decision by lawmakers for a permanent ban on the death penalty, the statement said.

‘This is significant progress and we congratulate Governor Inslee for his leadership in the decision to declare a moratorium of capital punishment in Washington State. It is another sign that the death penalty is steadily retreating in the US as more states bring their justice systems into the modern era’, said Federico Mayor, President of the International Commission against the death penalty.

Governor Inslee said that in the 33 years since Washington State enacted its capital punishment laws, 60% of 32 people sentenced to death have had their sentences overturned. ‘When the majority of death penalty sentences lead to reversal, the entire system must be called into question’, he said.

The importance of such developments cannot be underestimated. According to the case law of the Supreme Court of the United States, the ‘evolving standards of decency’ that govern interpretation of the eighth amendment are to be assessed with reference to developments in the law and practice of the States. In 2005, the Supreme Court declared the juvenile death penalty to be unconstitutional based upon a discernable pattern involving a relatively modest number of States.

Prosecutor Applies to Reverse Final Acquittal of Perišić

In February 2013, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia ‘enter[ed] … a verdict of acquittal’ in the case of Momčilo Perišić. The Statute of the International Criminal Tribunal for the former Yugoslavia provides for appeal of a conviction, a procedure that was introduced in order to comply with article 14(5) of the International Covenant on Civil and Political Rights (‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’) It does not allow reconsideration of an acquittal that has become definitive following an Appeals Chamber decision because of a changed interpretation of the law.

A few days ago, the Prosecutor of the Tribunal applied for ‘reconsideration’ of the decision to acquit Perišić. According to a Statement issued by the Office of the Prosecutor,

This motion was filed, after careful deliberations, by my Office as a direct consequence of the Šainović  Appeal Judgement delivered on 23 January 2014. In that Judgement, the ICTY Appeals Chamber unequivocally overturned the Perišić Appeal Judgement’s flawed holding that “specific direction” is an element of aiding and abetting liability. It was on the basis of this ‘specific direction’ requirement that the aiding and abetting convictions entered by the Trial Chamber were reversed and Mr. Perišić was erroneously acquitted on appeal.

Rule 119 of the Rules of Procedure and Evidence allows for ‘review’ of a decision by the Appeals Chamber: ‘Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.’

But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?

First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the funding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).

The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.

2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.

Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.

The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.

Against the right of the accused to protection against such double jeopardy, the Prosecutor invokes the rights of victims to have justice done. He says that ‘[r]econsidering the Perišić Appeal Judgement will help secure justice for the victims, which is the key objective of my Office, the Tribunal and international criminal justice as a whole.’

But fair proceedings should also be a key objective of the Prosecutor. There is something profoundly unfair about the suggestion that an acquittal, decided by four judges of an Appeals Chamber, can be reversed a year later because four other judges adopt a different interpretation of the law.

The mantra of ‘justice for the victims’ should not be used to trump the rights of the accused in such circumstances. As a result of these controversial decisions, not to mention other bizarre developments like the statement of Judge Harhoff, his removal as a judge, and the replacement of a judge in a pending trial well into the deliberation stage, the legacy of the International Criminal Tribunal for the former Yugoslavia has been tarnished. Reconsideration of an acquittal because there of a change in judicial interpretation risks causing further damage to the reputation of this troubled institution.