Sunday, 20 April 2014

Judicial Activism at the ICC


In a dramatic example of judicial activism, a Trial Chamber of the International Criminal Court has issued what will surely be known as the ‘Ruto Subpoena Decision’. It ‘Requires’ the appearance of several witnesses ‘as a matter of obligation’ and ‘Requests the assistance of the Government of Kenya in ensuring the appearance of the witnesses’. The decision is signed by Judges Eboe-Osuji and Fremr. A dissenting opinion is to be filed by Judge Herrera Carbuccia.
Until last week’s decision, most specialists on the law of the Court did not think that such authority lay within the Rome Statute or the Rules of Procedure and Evidence. Indeed, there have been frequent criticisms by scholars about the absence of a subpoena power. Some have called for amendment of the Statute in order to repair this gap. The Prosecutor and the defence lawyers seemed to concur, because in almost a decade of judicial activity none had asked the Court to issue a subpoena.
Now, it seems, the power was there all along. The judgment relies upon a doctrine of implied powers. It relies on rulings of the International Court of Justice concerning implied powers of the United Nations. The Chamber’s argument might have been more compelling had it referred to implied powers rulings of international criminal tribunals or, at least, international human rights tribunals. There is of course some good authority here. In particular, the decision of the European Court of Human Rights, in Mamatkulov and Askarov v. Turkey, on the binding force of a provisional measures decision would seem to be helpful to the Chamber.
The Chamber supports its proposition with reference to the subpoena provisions in the Rules of other international criminal tribunals. In particular in notes such provision in the Rules of the tribunals for Sierra Leone, Lebanon and Cambodia, stating ‘it would require very clear language indeed for the States Parties to the Rome Statute to be taken to have intended that the ICC … should be the only known criminal court in the world (at the international and the national levels) that has no power to subpoena witnesses to appear for testimony’. But the three tribunals in question were created after the Rome Statute. The Chamber's argument works just as well, perhaps better, in the other direction: the drafters of the Rules of those subsequent tribunals made express provision for subpoena power because the Rome Statute suggested that the default position of international law was that no such power lay with an international criminal tribunal.
Most observers of the Rome Conference consider that the absence of an express subpoena power in the Statute was quite intentional. Reference might also be made to the Rules of Procedure and Evidence, where there was an opportunity to correct any ‘oversights’. Probably many delegations at the Rome Conference were reacting to an earlier case of judicial activism. In October 1997, eight months before Rome, the Appeals Chamber of the Yugoslavia Tribunal had issued an order against Croatia (the case is known as the Blaškić Subpoena Decision). They were concerned about intrusions into State sovereignty by activist judges, especially when national security information was concerned. The visible result in the Rome Statute can be found in the feeble text of article 72. The invisible result is probably the lack of a power to subpoena witnesses. That explains why article 93 speaks of States facilitating ‘voluntary appearance’ of witnesses but is silent on forcing them by compulsion to appear.
Understandably, the ruling of the Trial Chmaber is quite dismissive of the relevance of travaux préparatoires. This is quite a huge departure from the case law of the Court, which has generally attached great significance to the preparatory work of the Statute. Several of the judges and many of the academic commentators were participants in the Rome Conference
Perhaps the reason why the issue has not previously arisen is that parties to cases before the Court never felt the need to force a witness to testify. The significance of compulsion to testify is probably overrated. It is a rare occurrence for counsel to force the testimony of an uncooperative or hostile witness. The results are unpredictable and dangerous. Usually, lawyers require a subpoena in order to overcome a legal or contractual obstacle, such as bank secrecy.
The innovation of the Trial Chamber is welcome and exciting. One of the crucial differences between the International Criminal Court and the other international criminal tribunals has been the very complex codification of the law, including the procedural law, applicable to the former. The States that created the Court wanted to make sure they kept a tight grip on its operations. But experience shows that judges find ways to express their creativity, developing the law in unexpected directions. And States are weak, almost powerless, to resist the development of an institution that takes on a life of its own. We can see this phenomenon at the other international criminal tribunals (think of the legendary Tadić Jurisdictional Decision) as well as the international human rights tribunals.
It remains to be seen whether Kenya will comply. Should it refuse, the Chamber can complain to the Assembly of States Parties (art. 87(7)). Then the States Parties that, fifteen years ago, almost certainly resisted the idea of a binding subpoena power will be able to reconsider the matter.
The prosecution of Ruto (and Kenyatta) has been on shaky ground for some time. Is this the final effort by the prosecution to revive a faltering case?

Thursday, 17 April 2014

Books by Doctoral Students

This mosaic consists of the covers of doctoral theses published by graduates of the Irish Centre for Human Rights since the first PhDs were awarded not quite a decade ago. There are 19 of them, with all of the leading legal academic publishers, including Oxford University Press, Cambridge University Press, Martinus Nijhoff, Brill, Routledge and Ashgate. At least three more are forthcoming. Shane Darcy prepared this slide for the annual doctoral seminar at the Irish Centre for Human Rights.

Wednesday, 16 April 2014

Essex Human Rights Summer School

The Essex Human Rights Centre is holding a summer school on Human Rights Research Methods at its Colchester campus from 30 June to 5 July 2014.  Methodology has a direct bearing on the strength, persuasiveness and legitimacy of human rights research findings and their impact on policy and practice.  Strong methodology is also a central requirement in order to secure funding.  Yet, we often focus on the substance of human rights without sufficient attention to the methods used.  This summer school seeks to fill that gap by providing the core methods and skills needed to carry out human rights research whether documenting human rights violations, drafting human rights reports and articles or preparing funding bids.  Participants will learn everything from interviewing victims to researching in repressive societies to becoming ‘quantitatively literate’ in human rights research.  The teaching team includes anthropologists, lawyers, political scientists, psychologists and sociologists, three current and former UN Special Rapporteurs, a member of the UN Committee against Torture, the Interim Director of Law and Policy at Amnesty International and donors, all with significant experience on the theory and practice of human rights.  It is an ideal course for human rights professionals working in NGOs, international organisations and government, academics and postgraduate students.  To find out more, visit: www.essex.ac.uk/hrc/summerschool

Predatory Publishers


One of the consequences of the growth in open access on-line publishing is the proliferation of what have been called ‘predatory publishers’. These are commercial ventures that attempt to attract scholars to publish with them and to attend ‘academic’ conferences. Most academics regularly receive invitations from these operations.
Jeffrey Beall has developed a website dedicated to the phenomenon.
He provides criteria for assessing whether a publisher is genuine, and keeps a list of dubious publishers.

Saturday, 12 April 2014

Tributes paid to Arthur Robinson

The former Prime Minister of Trinidad and Tobago, Arthur Robinson, has died. Readers may be familiar with his 1989 request to the General Assembly to consider the foundation of an international tribunal to deal with those suspected of trafficking in drugs. His request, and the resulting General Assembly Resolution, spurned the International Law Commission back into action on the formulation of a Statute for the International Criminal Court, a project that had essentially lain dormant for the best part of four decades. President Song of the ICC referred to Mr Robinson as the 'grandfather' of the International Criminal Court.

An interesting but little-known fact is that Arthur Robinson was a good friend of Professor Robert Woetzel; the two men studied in Oxford together. Professor Woetzel was the founder of the Foundation for the Establishment of an International Criminal Court, and one of the few academics who continued to advocate for the creation of a permanent international criminal tribunal during international criminal justice's Cold War hiatus. Woetzel died suddenly in 1991, just two years before the creation of the International Criminal Tribunal for the former Yugoslavia and seven years before the International Criminal Court came into existence. It is heartening that his friend lived to see their shared vision finally come to fruition.

Swiss Depository accepts Palestine's accession to the Geneva Conventions

On 2 April 2014, the Palestinian Authority notified the Swiss Federal Council, depository of the Geneva Conventions, of its intention to accede to the four Geneva Conventions and Additional Protocol I. The accession of the State of Palestine to the Conventions and Protocol was formally accepted by Switzerland via a letter issued on 10 April.

This is a highly significant development for the recognition of Palestine as a state. The Palestinian Liberation Organisation first sought to join the Geneva Conventions in 1989, which was rejected by the Swiss Foreign Ministry 'due to the uncertainty within the international community as to the existence or the non-existence of a State of Palestine.'

Israel argues that the Geneva Conventions should not apply to the West Bank and Gaza, because no state claimed sovereignty over the territory. This position was rejected by the International Court of Justice, stating that Section III of the Fourth Geneva Convention 'which concerns “Military authority over the territory of the hostile State”, is particularly pertinent in the present case.' Similarly, UN Security Council Resolutions have consistently called upon Israel to apply the Fourth Geneva Convention in Palestine. The Israeli position, while already on very dubious legal grounds, has become even more difficult to justify with this latest development.

Thanks to Evelyne Schmid.

Thursday, 10 April 2014

Two new States parties to the Second Optional Protocol

Gabon and El Salvador have acceded the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of  the death penalty. There are 80 States parties to Optional Protocol. In his recent video message to the Human Rights Council, the Secretary General Ban Ki Moon called on States that have not yet done so to ratify the Second Optional Protocol to ICCPR. He also said: 'It is my sincere hope to see many instruments of ratification as we mark the Protocol’s 25th anniversary at the treaty event in New York later this year.'
Thanks to Zaved Mahmoud.

Wednesday, 26 March 2014

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. 

Tuesday, 25 March 2014

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.