Saturday 28 February 2009
There has as yet been no public announcement of the Tribunal’s personnel, but it is widely believed that the judiciary will include Prof. Antonio Cassese (see photo), who was first President of the International Criminal Tribunal for the former Yugoslavia, as well as another former judge of the Tribunal, Bert Swart, and a defense lawyer who practiced there, Howard Morrison. Four Lebanese nationals will also be named to sit as judges. The Prosecutor is a Canadian, Daniel Bellemare, according to the press briefing on the United Nations website yesterday (http://www.un.org/News/briefings/docs/2009/db090227.doc.htm). The Secretary-General is to make a statement tomorrow on the matter.
Friday 27 February 2009
Also, the Special Court for Sierra Leone has issued its judgment in the three-defendant case involving the Revolutionary United Front. I couldn’t find the judgment on the website of the Court., but someone has sent me the official summary: http://www.mediafire.com/?inmhdn7toei. There is an intriguing reference to a dissent by Judge Pierre Boutet, but nothing in the summary to indicate what that might consist of.
Thanks to Colin Smith.
Press: http://www.cambridge.org/uk/catalogue/catalogue.asp?isbn=9780521719001. It consists of a very major revision of the first edition, which appeared in 2000. The second edition reviews the very important case law on genocide since 2000, the substantial academic contributions and the political developments, such as recognition of the doctrine of the responsibility to protect.
Thursday 26 February 2009
Thanks to Maria Veraki.
Because of the complex and often unending procedural issues involved in death penalty litigation, it is a very expensive process. The cost argument becomes more attractive in tough times. The article reports a death penalty supporter arguing that it is impossible to measure the social benefit of those who have been deterred from killing because of the death penalty. But this is a very weak argument, because of the poor evidence showing that capital punishment has a deterrent effect that is superior to that of long-term imprisonment.
Maryland in fact provides a good example of this. Do you recall the famous 'belt-way snipers' from several years ago. This was a strange team of serial killers who murdered people at random in and around Washington. They were called the 'belt-way snipers' because the killings all took place within a few kilometers of the belt-way, which is the ring road around Washington.
Now, Washington has no death penalty, whereas Maryland and Virginia do. Would you be surprised to learn that virtually all of the killilngs took place in Maryland and Virginia, and not Washington? If the death penalty is such a deterrent, why didn't these two mad serial killers simply drive a few kilometers in the other direction and put themselves outside the threat of execution?
Tuesday 24 February 2009
Thanks to Fidelma Donlon.
By my count, that is 232 days after the arrest warrant application was filed. Issuance of an arrest warrant is governed by article 58 of the Rome Statute. The Pre-Trial Chamber must be 'satisfied' that there exist 'reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court'.
the thesis was supervised by Prof. Joshua Castellino, formerly of the Irish Centre for Human Rights and now head of the law school at the University of Middlesex, in London. The external examiner was Dr Nazila Ghanea, of the University of Oxford.
Jeroen leaves the Irish Centre for Human Rights this weekend to take up a position as lecturer at the University of Amsterdam. He is planning to live on a houseboat on a canal in the middle of Amsterdam. Since we began awarding PhD degrees, slightly more than four years ago, nineteen students have graduated. By my count, thirteen of them are working as university lecturers, with the others engaged in employment appropriate to their level of education. The photo shows, from left, Jeroen, Nazila Ghanea, myself and Joshua Castellino.
Friday 13 February 2009
Thanks to Lorraine Lally
the journal runs a student essay competition: http://gojil.uni-goettingen.de/joomla/index.php?option=com_wrapper&view=wrapper&Itemid=106.
Thanks to Evelyne Schmid.
There has been much chatter on the internet about this case, because when the Chamber announced the verdict in December 2008 the summary of the judgment said the Prosecutor had failed to prove that the accused was involved in a conspiracy to commit genocide. Many took this to imply that there was, in fact, no genocide. Moreover, the defence relied heavily on suggestions that there was an alternative explanation for the Rwandan genocide, and that blame for much of the killing could be placed on the Rwandese Patriotic Front. It also charged that the Prosecutor’s strategy, directed against perpetrators of genocide rather than against the RPF for alleged atrocities, was a source of unfairness.
But these views find little comfort in the judgment, released a few days ago. The judgment is certainly not authority for the proposition that there was no plan to commit genocide in Rwanda. See para 2090: ‘At the outset, the Chamber emphasises that the question under consideration is not whether there was a plan or conspiracy to commit genocide in Rwanda. Rather, it is whether the Prosecution has proven beyond reasonable doubt based on the evidence in this case that the four Accused committed the crime of conspiracy.’
The conclusion, as I read the judgment, is that the Prosecutor failed to prove the genocidal conspiracy, and particularly the involvement of the accused in it, beyond a reasonable doubt. At para. 2111: ‘It is possible that some military or civilian authorities did intend these preparations as part of a plan to commit genocide. However, the Prosecution has not shown that the only reasonable inference based on the credible evidence in this trial was that this intention was shared by the Accused.’
Moreover, (para. 1998), ‘To the extent that the Defence’s alternative explanations aim to raise doubt about whether a genocide occurred in Rwanda, the submissions are without merit. A review of the evidence related to the crimes underpinning the charges amply demonstrates that the perpetrators acted with genocidal intent (IV.2.2). Leaving aside the particular facts in this case, it is clear that a genocide occurred. The Tribunal has convicted a high number of individuals in completed cases for genocide committed in various parts of the country. The Appeals Chamber has even concluded that the genocide in Rwanda in 1994 is a fact of common knowledge which there is no reasonable basis to dispute.’
I think the judgment also disposes of an argument that is frequently invoked, namely that the Tutsi provoked the genocide by shooting down the President’s plane. This has always struck me as preposterous and absurd, yet it returns again and again in the debates. The shooting down of the President’s plane is the basis of ongoing proceedings in France. These proceedings are misunderstood as addressing the ‘flip side’ of the genocide in Rwanda. I don’t even think that shooting down a plane comes within the jurisdiction of international criminal courts. In any event, the Trial Chamber, in Bagosora, writes: ‘Even assuming that the RPF were responsible, it would not have any bearing on the Accused’s criminal responsibility. The attacks for which they have been held responsible were organised military operations directed at civilians. There can be no justification for this even if the opposing military force commenced the hostilities.’ (at para. 1097)
As for the argument focusing on alleged RPF atrocities, the judgment says (at para. 2001): ‘In sum, the alternative explanations for the events have added relevant context to a few allegations against the Accused. For the most part, however, they are irrelevant to the core issues in this case, namely whether the Accused are responsible for the specific criminal allegations charged against them.’ Moreover (at para. 1999), ‘The Chamber fails to see how this would exculpate the Accused for their own alleged crimes… It is beyond the scope of Chamber’s task to evaluate the Prosecutor’s overall strategy.’
Thursday 12 February 2009
But the Court issued a denial, saying no decision had been taken. So did the United Nations, http://www.icc-cpi.int/NR/exeres/A3275BE5-2D68-4962-9C11-90FAA646BF20.htm.
The New York Times article is by Marlise Simons, who is very well informed and reliable, and I don’t think she made up the story. She does not refer to the sources, nor does she suggest this was officially announced by the Court, which it wasn’t. But that doesn’t mean she is wrong. Obviously she has been told that a decision has been taken by reliable sources, and I don't see any reason to doubt this. She says that the Court has already informed the United Nations Secretary-General.
The warrant itself will almost certainly be issued within the next week or two. The only real issue in any doubt is whether it will include charges of genocide, as requested by the Prosecutor.
Tuesday 10 February 2009
There is also a short description of the Gaza issue on the website of the Court: http://www.icc-cpi.int/NR/exeres/4F8D4963-EBE6-489D-9F6F-1B3C1057EA0A.htm.
This possibility was discussed a few weeks ago on this blog. According to article 12(3), a non-party State accepting the jurisdiction of the Court on an ad hoc basis. The provision requires such a State to lodge a declaration with the Registrar by which it accepts the exercise of jurisdiction by the Court ‘with respect to the crime in question’. The Statute describes such a State as an ‘accepting State’. The final sentence in Article 12(3) says that ‘[t]he accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9’.
In the third edition of my book, Introduction to the International Criminal Court, I considered this possibility:
One intriguing application of Article 12(3) concerns States that do not yet exist. Could Palestine, for example, which is not a Member State of the United Nations and which is not generally recognised as an independent State, declare that it intends to join the Court upon obtaining statehood and to accompany its accession to the Rome Statute with a declaration under Article 12(3) giving the Court jurisdiction over its territory for all acts perpetrated since 1 July 2002?
The question now is whether Palestine actually exists as a State. The mere making of such a declaration constitutes an act of statehood. The Prosecutor will now assess whether Palestine is a State, and therefore whether the declaration is actually effective. Then, he may decide to begin an investigation, in accordance with article 15, but only with authorisation of a Pre-Trial Chamber.
Perhaps another State party to the Rome Statute – like Jordan, for example – might consider referring the ‘Situation in Palestine’ to the Court in accordance with article 14.
It is said to be the first of a series of papers on human rights issues as they relate to the work of the International Law Commission, which is currently studying the scope of the duty to try or extradite.
The report contains several references to enacted and draft national legislation providing for the obligation to extradite or prosecute, whether as a dual or triple alternative. There is also a reference to jurisprudence of national and international courts. Annex I is a compilation of treaty provisions containing the aut dedere aut judicare obligation. Annex II contains the few interpretative declarations or reservations made by states to provisions containing this obligation. Annex III to this document contains an up-to-date list of selected international and regional instruments containing the obligation and their status of signature and ratification (as of 7 January 2009).
Thanks to Hugo Relva.
Thanks to Mike Kruger.
Sunday 8 February 2009
Saturday 7 February 2009
The link to the transcripts doesn't seem to work. But I have found them here:
See also: http://www.ihrablog.net/2009/02/un-special-rapportuer-on-torture-calls.html
Thanks to Rick Lines.
Friday 6 February 2009
Thursday 5 February 2009
Someone should have warned the PR people at the Court about how effect Paxman can be!
See also a recent story on this in the Los Angeles Times: http://www.latimes.com/news/nationworld/world/la-fg-court-palestinians5-2009feb05,0,6059347.story.
Also, the International Herald Tribune: http://www.iht.com/articles/reuters/2009/02/03/europe/OUKWD-UK-ISRAEL-GAZA.php
I have also been infomred about an interview with the daughter of Karadzic which is of interest:
Thanks to Fidelma Donlon
Tuesday 3 February 2009
Thanks to Karolina Wierczynska.
Monday 2 February 2009
The International Criminal Court already has jurisdiction over crimes committed in Gaza by nationals of States parties to the Rome Statute. But who knows whether any possible suspects might qualify? 'Citizens' of Gaza and of Israel are certainly not covered in this way. But some might be dual nationals.
The Court can get jurisdiction over the territory of Gaza in three ways: 1. Security Council referral (art. 13(b)); accession to the Rome Statute by the State to which Gaza belongs (art. 126); a declaration accepting jurisdiction over Gaza by the State to which Gaza belongs (art. 12(3)). You can see the problem. To which State does Gaza belong? Security Council referral would seem improbable.
Palestine could make a declaration of accession. It would have to submit this to the Secretary-General of the United Nations, who is the depositary of the treaty. That would give the Court jurisdiction prospectively, assuming the Secretary-General accepted the accession. The Secretary-General would have to decide if Palestine was a State. But first, of course, Palestine would have to decide if it is a State.
Palestine could also make a declaration under article 12(3). It is in a way the more interesting solution, because the determination as to whether Palestine is a State would be made not by the Secretary-General but, initially, by the Prosecutor and then by the Pre-Trial Chamber. Perhaps they would adopt an expansive approach to statehood so as to facilitate jurisdiction rather than stymie it.
Finally, of course, Israel could ratify the Statute. That would give the Court jurisdiction over Israeli nationals. It wouldn't give the Court jurisdiction over Gaza. But it would probably give the Court jurisdiction over acts committed in Gaza that produced effects in Israel.
The Prosecutor has been rather reticent about proceeding in situations that are not of 'sufficient gravity'. He has generally based his assessment on the number of victims. That is an additional issue to be addressed if this idea is to advance.
Thanks to John Reynolds.
Sunday 1 February 2009
Prosecution Stumbles as Historic Trial Opens: http://www.iwpr.net/?p=acr&s=f&o=349645&apc_state=henpacr
Ocampo Underwhelms in Landmark Trial: http://www.iwpr.net/?p=acr&s=f&o=349621&apc_state=henpacr <http://www.iwpr.net/?p=acr&s=f&o=349621&apc_state=henpacr>
Lubanga Trial a Landmark Case: http://www.iwpr.net/?p=acr&s=f&o=349431&apc_state=henpacr <http://www.iwpr.net/?p=acr&s=f&o=349431&apc_state=henpacr>