Tuesday 30 September 2008
Visitors to the Irish Centre for Human Rights know of the bookshelf on the first floor landing that is reserved for ‘banned books’. We are constantly adding to the collection although sometimes it is because the books ‘disappear’, which may be a form of censorship. One particularly controversial book is Mein Kampf, which is of course banned in Germany. When I put it on the shelf it mysteriously vanishes. I know that some of our German students have found it particularly offensive. But how can we ban a book from our shelf of banned books?
Another book that disappeared is The Joy of Sex. A visiting professor from the United States gave that one to us. I suspect that whoever took it is having more fun than the one who swiped the Hitler book.
The books are there to be borrowed and read, but please bring them back. By the way, we welcome gifts for our collection.
Thanks to Michael Kearney.
Thursday 25 September 2008
Thanks to William Hartzog.
Wednesday 24 September 2008
Some press reports have described the amended indictment as a ‘second genocide charge filed against Karadzic’ (see, e.g., Associated Press: http://ap.google.com/article/ALeqM5gfog99sG-4NVtaT3GNxSpZ0V33KAD93CHBL01), but on closer scrutiny this does not seem to be the case.
The earlier indictment charged Karadžić with genocide between 1 July 1991 and 31 December 1992 in eighteen municipalities. The amended indictment charges him with genocide between 31 March 1992 and 31 December 1992 in ten municipalities.
The earlier indictment also charged him with genocide at Srebrenica, over a period from March 1995 to November 1995. The amended indictment charges him with genocide ‘between a few days before 11 July 1995 and November 1995’.
This looks to me like a reduction in the genocide charges, not an expansion of them.
The Prosecutor would have been wise to drop the genocide charges for 1991 and 1992 altogether. Several trials at the Tribunal alleging genocide during this period have resulted in acquittals. Moreover, the International Court of Justice dismissed claims of genocide filed by Bosnia and Herzegovina against Serbia covering much of this period. The Prosecutor is stubbornly clinging to the theory of a genocide in Bosnia and Herzegovina in 1992, but based on all previous judicial decisions this is likely to fail. It will only lengthen this important trial at a time when the Court is trying to streamline its work and conclude its activities.
As for the Srebrenica charge, which really concerns a few days in July 1995, the case law is much more favourable. In my own opinion, however, even the theory of genocide at Srebrenica is a tenuous one. The better charge would be the crime against humanity of extermination. Either the war in Bosnia was genocidal or it was not. But a vision whereby most of the war was not genocidal, but where a genocidal massacre was essentially improvised over a few days in the final months of the conflict doesn't make a lot of sense. Yet that is what emerges from the case law, which seems to be stuck on the precedent created by a 2001 ruling of a Trial Chamber (Krstić Trial Judgment). Ever since, the judgments have been clawing this back, as if the judges have all realised that the charge was tenuous and difficult to sustain.
Tuesday 23 September 2008
Monday 22 September 2008
The European Court of Justice was sitting in appeal of a decision by the Court of First Instance, which had made a very controversial finding that the Regulation was invalid because it conflicted with peremptory norms of international law (jus cogens). The European Court of Justice said the Regulation was invalid because it conflicted with the constitutional principles of the European Community Treaty, and in particular the requirement that all Community acts respect fundamental rights.
The earlier judgment was critiqued by our colleague Dr Laurent Pech in a casenote written in 2006 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=915386)., and his approach is now endorsed by the European Court of Justice.
Earlier this year, I wrote on this blog about the violations of human rights that take place in the name of the 'war on terror'. Some of these measures, such as asset freezes and travel bans, are actually required by Security Council Resolutions. They violate fundamental principles of human rights and the rule of law. The European Court of Justice ruling is a step towards fixing this unacceptable situation.
Thanks to Laurent Pech.
Declares that the International Day of Peace shall henceforth be observed as a day of global ceasefire and non-violence, an invitation to all nations and people to honour a cessation of hostilities for the duration of the Day...“Invites all Member States, organizations of the United Nations system, and non-governmental organizations and individuals to commemorate, in an appropriate manner, the International Day of Peace, including through education and public awareness, and to cooperate with the United Nations in the establishment of the global ceasefire.
Secretary-General Ban Ki Moon made the link with human rights, and the sixtieth anniversary of the Universal Declaration of Human Rights. 'We know that human rights are essential to peace', he said in his message to mark the Day. 'Yet too many people around the world still have their rights violated – especially during and after armed conflict. That is why we must ensure that the rights in the Declaration are a living reality – that they are known, understood and enjoyed by everyone, everywhere.'
Sunday 21 September 2008
Thanks to Rick Lines.
There are lots of graphs and charts. Personally, I am not so convinced. Last December, Europe succeeded with its death penalty resolution, and built a broad coalition. There are many other successful initiatives, like new treaties and declarations. Of course, all of these involve broad consensus with the rest of the world. But what else should we expect? For European initiatives to succeed in the United Nations, they have to resonate elsewhere.
Thanks to Niamh Hayes.
Friday 19 September 2008
Thursday 18 September 2008
Some of the names are well-known international judges and will surely be great additions to the Court: Christine Van den Wyngaert (Belgium) is currently at the International Criminal Tribunal for the former Yugoslavia, and as an academic she has been one of the bright stars in international criminal law for many years. Mohamed Shahabuddeen (Guyana) is one of the great judges of the Appeals Chamber of the ad hoc tribunals; previously, he served on the International Court of Justice.
The third familiar name - currently a judge at the Special Court for Sierra Leone - is Rosolu John Bankole Thompson. He would be a less desirable choice. Thompson distinguished himself a year ago as the dissenting judge on the Trial Chamber in the 'CDF case'. He voted to acquit pro-government militias of atrocities because they were defending a democratically elected government. It was an absurd and outrageous suggestion, and of course it finds no echo in international criminal law. But Thompson was appointed to the Special Court for Sierra Leone by the Government of Sierra Leone and - surprise, surprise! - he voted to acquit murderers and rapists because they were defending the Government of Sierra Leone. Now he is being rewarded by being nominated for the International Criminal Court by that same Government of Sierra Leone.
He is virtually unknown in his native Poland. The Polish Institute of International Affairs is hosting a conference right now, one of several such gatherings being held in the coming months to commemorate the 60th anniversary of the adoption of the Genocide Convention. Yesterday, they unveiled a plaque at Lemkin's home in central Warsaw, and I had the privilege of being present at this important event. The apartment is at 6 Kredytowa Street, about two blocks from the perimeter of the Warsaw ghetto where half a million Jews perished. Had Lemkin lingered a few more weeks in Warsaw, he would surely have suffered the same fate.
The map of Warsaw I was given at my hotel has a whole section on it devoted to sites of 'Jewish Heritage'. This is quite a change from the first time I came here some fifteen years ago, when Warsaw's Jewish past seemed largely ignored. Then I remember asking the hotel concierge how to get to the Warsaw ghetto monument, and he just shrugged his shoulders, saying he had never heard of it. I got similar responses from taxi drivers, and could find nothing in local guide books or tourist maps. I eventually found the monument on my 1993 visit, and went back there again yesterday to pay my respects. Now there is a large sign indicating plans to build a museum of Jewish life in Warsaw.
Yesterday I also visited the famous Pawniac prison in Warsaw, where the Nazis held and murdered tens of thousands of political opponents. One of the exhibits shows the cover of a book issued by the Polish government in exile in December 1942, and published by the London publishing house Hutchison, entitled The Mass Extermination of Jews in German Occupied Poland. So much for the argument that the great powers only learned of the genocide in late 1944 and early 1945.
Monday 15 September 2008
Kindler has been back in the United States since 1991, but he is still fighting. He just won a ruling reversing his death sentence and calling for either a new sentencing hearing or commutation of his sentence to life imprisonment: http://www.ca3.uscourts.gov/opinarch/039010p.pdf
And in the meantime, both the Supreme Court of Canada (Burns and Rafay, 2001) and the Human Rights Committee (Judge, 2003) have reversed their case law. I hope that Kindler's decision is upheld, and that he lives to see the abolition of the death penalty in the United States, something that will happen sooner, rather than later, and probably faster than it took the Supreme Court of Canada and the Human Rights Committee to change their minds.
Thanks to Mark Warren.
The Human Rights Committee is established by the International Covenant on Civil and Political Rights, and has responsibility for the study of State reports on their compliance with the Covenant, for individual and inter-state petitions, and for the preparation of General Comments which constitute the authoritative interpretation of provisions of the Covenant.
The reports consist of case summaries and indexes of leading international criminal law cases, together with the decisions themselves. Previously, research in the case law of international criminal tribunals involved rather tedious combing through the websites of the various tribunals. Even then, as a general rule the tribunal websites do not allow for keyword searches and they are not indexed. The International Law Reports respond to the problem, but they cover only a very limited number of cases. Hundreds of cases are already on line, and we will be continuing to add more.
The thesis was a genuinely interdisplinary work, explaining and developing concepts derived from the discipline of anthropology and making them accessible and relevant to international human rights lawyers. Congratulations, Sean. We will miss you at the Irish Centre for Human Rights.
Sean is the seventeenth student to successfully complete a doctorate since the Irish Centre for Human Rights began awarding the degree, in late 2004.
Tuesday 9 September 2008
Professor David Kretzmer, one of Israel’s prominent law professors and a great friend of the Irish Centre for Human Rights, has written to justice officials calling for the reports to be investigated. According to Professor Kretzmer, these accounts raise ‘a grave suspicion’ that Mofaz ‘committed serious offences, some of which at least, fall into the category of war crimes’. He is quoted in The Independent saying that an order to kill people ‘by quota’ is ‘not consistent with the norms of humanitarian law’, and that the test of proportionality is especially relevant in cases of military occupation, in which even the actions of armed groups do not ‘relieve the Army of its obligations to residents of the territory’.
Thanks to Jernej Černič.
Monday 8 September 2008
The dissenters sensed that underpinning the reasoning of the majority was a reluctance to condemn a partisan for fighting the Nazis. ‘Why should criminal responsibility depend on which side those guilty of war crimes were fighting on?’ asks the minority.
This is a fascinating new chapter in the evolving ‘victor's justice’ debate. Earlier this year, the Appeals Chamber of the Special Court for Sierra Leone ruled that the side on which a person is fighting should not even be taken into account for purposes of sentencing, as an aggravating or a mitigating factor: http://www.sc-sl.org/Documents/CDF/SCSL-04-14-A-829.pdf.
I recently reported an item on this blog about prosecution of Jewish partisans in Lithuania for war crimes committed in the final stages of the Second World War. And I could add to this the ongoing debate at the International Criminal Tribunal for Rwanda about prosecuting members of the Rwandese Patriotic Front for atrocities committed against Hutu in Rwanda in the months following the genocide.
Personally, I am inclined to think that the side one is fighting on has to be relevant to certain issues of international criminal justice. The view of the Appeals Chamber of the Special Court for Sierra Leone is troubling, and seems inconsistent with the approach we would take in domestic legal systems, where the motive of the offender is always very relevant to determination of the penalty. It is also fundamental in terms of prosecutorial discretion, something now confronting the Rwanda Tribunal.
The biggest critic of Nuremberg as ‘victor’s justice’ is the notorious David Irving (see his scurrilous book on the Nuremberg trial, which you can download free from his website: http://www.fpp.co.uk/books/Nuremberg/index.html - please don’t buy it). Many think it would have been better if both sides were prosecuted at Nuremberg, but I cannot agree. It is true that the Allies committed war crimes, and that there was terribly civilian damage as a result of bombing of cities, like Dresden and Hamburg. Nuremberg is one of the great symbolic trials of our time, and if it had reflected a view by which both sides had been guilty of atrocities this would not clarify history, it would distort it. Yet isn’t that the logic of the dissenters in the Kononov judgment?
Friday 5 September 2008
Yesterday, the Trial Chamber ruled that this is still inadequate: http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1467-ENG.pdf.
I was last in The Hague in early July, and was rather surprised at what I would call the great confidence in the Office of the Prosecutor that the situation was under control and would be resolved. At the Salzburg Summer School in mid-August, the Prosecutor told participants that everything was being repaired. But Professor Kai Ambos gave a talk a few days later reviewing what had been done, and it didn't look so clear. And now the Trial Chamber has said, once again, that the efforts of the Prosecutor are not good enough.
Thanks to Jean-Marie Henckaerts.
Wednesday 3 September 2008
Tuesday 2 September 2008
I think it is not correct to say that all criminal tribunals have an inherent power to prosecute contempt. It is probably accurate to say that all criminal tribunals can prosecute contempt when it occurs in the courtroom itself (in facie). But I do not think it is the case that all criminal tribunals have an inherent power to prosecute contempt when it takes place outside of the courtroom (ex facie). In many criminal justice systems this power would be reserved to a court of general jurisdiction, and would not be available to a statutory court. In other words, it is not at all obvious that the Statute of the International Criminal Tribunal gives the judges the power to prosecute contempt when it takes place outside the courtroom.
Now, the judges have given themselves this power by the Rules of Procedure and Evidence, of which they themselves are the authors. But they cannot enact Rules that exceed the powers they have been granted by the Security Council in the Statute.
Assuming they are wrong, who can stop them (other than the Security Council)? How about this scenario. Ms Hartmann refuses to appear, and is then subsequently arrested by national courts somewhere. If she were to challenge her arrest and transfer to The Hague before the national courts, through a habeas corpus application or some similar mechanism, she could raise an interesting argument about the legal validity of the Rules of Procedure and Evidence to the extent that they may exceed the jurisdictional remit in the Statute. In effect, judges of a national court would be asked to sit in judicial review of the powers of the judges of the International Criminal Tribunal for the former Yugoslavia to enact Rules that are ultra vires. Why not?
The idea that international judges have inherent powers to prosecute certain crimes (contempt, perjury) has always bothered me. How far does this go? Can they also prosecute someone for hacking into the website of the Tribunal, or failing to return a book to the library, or stealing the bicycle of one of the judges? I think the answer is that Dutch law would look after that. So why can't Dutch law also deal with contempt and perjury?
Muvunyi was initially sentence to twenty-five years' imprisonment. But the retrial is only ordered for one of several counts, and he is acquitted of everything else. By the time retrial and appeal are finished, he will probably have spent more than ten years in pre-trial detention. It seems debatable that ordering a retrial is really in the interests of justice, especially considering the completion strategy and the need for the Tribunal to finish its work soon.