Sunday, 14 December 2014

The ICC Prosecutor 'shelves' the Darfur situation: What is the Security Council supposed to do?

It has been widely reported that the ICC's Prosecutor has told the Security Council that no further investigative action would be undertaken in the Darfur situation. This is apparently owing to the Council's failure to act on securing the arrest of the suspects in that situation, including the Sudanese President, Omar Al Bashir. Notwithstanding that 'shelving' prosecutions, which seemingly stops short of a formal withdrawal of the charges but incorporates a formal strategy of non-action, is unforeseen by the Statute, this declaration certainly comes as a shock, especially so soon after the charges were dropped in the Kenyatta case. It means that, in the space of less than a fortnight, two sitting heads of state facing charges before the International Criminal Court have effectively found themselves off the hook, at least for the immediate future. 

The Prosecutor's frustration is understandable, given that every single decision in the case for the past four years has concerned Bashir's travel to other states, apparently unhindered by his arrest warrant. While invariably in these decisions, the Pre-Trial Chamber has found that states have an obligation to transfer the accused, its approach to has changed over time. Most notably, in my opinion, the emphasis placed on the Security Council has diminished somewhat. Two 2010 decisions informed the Security Council and Assembly of States Parties of Bashir's presence in Kenya and Chad 'in order for them to take any measure they may deem appropriate'. In the controversial decisions on Bashir's travel to Malawi and Chad issued in 2011, the Pre-Trial Chamber found that the two states had failed to cooperate with the Court and ordered the Registrar to transmit the decision to the Security Council, but the 'action' proviso was missing. More recent decisions on Ethiopia and Egypt invited the states to arrest Bashir, and ordered the Registrar to communicate with the state in question, without any mention of the Security Council. A 2014 decision on the Democratic Republic of the Congo referred the decision to the Security Council pursuant to Article 87(7), but no request for action was included with the referral. In other words, the Pre-Trial Chamber has not expressly called the Security Council to act on the non-compliance of states since 2010.

We might ask, then, what the ICC's Prosecutor expects the Security Council to do. Her aim in announcing a halt to the investigations was allegedly to 'shock this Council into action'. The common position will be that the Security Council will not act because of China's close relationship with Sudan, but in my opinion, each of the possible actions pose significant legal, as well as political, problems. Let us examine each of the options in detail.

(a) The Security Council declares that there can be no Head of State immunity for international crimes
This option is obviously politically impossible, not least in the wake of the torture report issued earlier this week. For the sake of argument, however, this hypothetical would arguably not stand up to legal scrutiny either. By virtue of Article 25 of the UN Charter, states are under an obligation to carry out the decisions of the Security Council, and Article 103 states that their obligations under the Charter will prevail when there is a conflict between those obligations and their obligations under any other international agreement. This, in theory, solves the issue of the conflicting obligations of African Union member states that are also state parties to the ICC Statute. However, the 'international agreement' aspect of Article 103 of the Charter means that Charter obligations cannot automatically override contrary customary international law in the same manner. Given that the International Court of Justice has held Head of State immunity to be a principle of customary international law, this avenue would clearly be problematic.

(b) The Security Council either obliges Sudan to waive Bashir's immunity, or expressly revokes that immunity itself
The Prosecutor might hope, then, that the Security Council will demand that Sudan hands Bashir over to the ICC and/or place an obligation on UN Member States to arrest and transfer him to the ICC. Aside from the customary international law problem mentioned above, and the fact that this is likely to be ultra vires the Security Council's mandate, there are a number of additional problems raised by this approach.
First, the ICC has relied on Resolution 1593 (2005) as an existing basis for requiring action in transferring Bashir to the Court. The resolution decided that the Government of Sudan and other parties to the conflict 'shall cooperate fully with and provide any necessary assistance to the Court', and urged all states to cooperate fully, while recognising 'that States not party to the Rome Statute have no obligation under the Statute'. According to the Pre-Trial Chamber:
 By virtue of said paragraph, the SC implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State. 
Following this reasoning, there should be no need for the Security Council to take any further action in demanding cooperation from states.
Second, even if we accept the argument that SC Resolution 1593 impliedly waived Bashir's immunity, or if a later SC Resolution were to more explicitly revoke his immunity, that action by the Security Council does not relieve the ICC of its obligations under Article 98(1) of the Statute. Pursuant to that provision, the Court would need to obtain a waiver from Sudan of Bashir's immunity before it could proceed with a request for surrender or assistance.
Third, and related to the above point, such a move would challenge the independence of the ICC as an institution. Just as Security Council referrals cannot restrict the application of jurisdiction to any specified crimes or change the operation of the Statute, nor can express or implied waivers of Head of State immunity override the Court's obligations under its own Statute, particularly Article 98.
Fourth, there is clearly an issue with the discriminatory nature of any Resolution waiving the immunity of one head of state under international law, but not others. Discrimination of this sort is already found in Resolution 1593 which included (on the insistence of the United States) the following provision:
6. Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State;

As Goran Sluiter has argued, this paragraph goes against the principles of equality before the law and non-discrimination. If the case were to proceed on the basis of a Security Council Resolution that explicitly targeted Bashir, the Prosecutor could find herself in difficulty. As stated in the Celebici Trial Judgment:
 The Prosecutor, in exercising her discretion under the Statute in the investigation and indictment of accused before the Tribunal, is subject to the principle of equality before the law and to this requirement of non-discrimination.
Fifth, the obligation to cooperate with the Court is a treaty obligation, applicable only to States Parties to the Statute. Likewise, by signing up to the Rome Statute, States Parties have waived immunities for their own nationals before the ICC, by virtue of Article 27 of the Statute. If a SC Resolution were to extend such obligations to States that are not party to the Rome Statute, it risks violating the principle of pacta tertiis nec nocent nec prosunt, or that treaties cannot impose obligations upon states without their consent.

Thus, we might wonder whether the solution that the Prosecutor seeks from the Security Council can really be offered at this time. She might have been better placed to wait until after April 2015, when Bashir might no longer be the Head of State after the upcoming Sudanese elections. Regardless of the absence of any real progress in the case, we might argue that keeping the Bashir prosecution active had both a declaratory value, in that it showed that sitting Heads of State could be prosecuted by the ICC, and a practical value, insofar as it raised some difficulties for Bashir's travel to certain states. It is difficult to see what positive implications this latest move will bring for the case. 

Thursday, 11 December 2014

Irish Department of Foreign Affairs announces that the Irish Government is seeking to re-open the Ireland v UK case

The Irish Government announced on Wednesday 3rd December that they have decided to request the European Court of Human Rights to re-open the Ireland v UK case (1971-1978). Their decision was prompted by the grave revelations, exposed in the ‘The Torture Files’ by the RTE Investigations Unit that drew on material unearthed in the British National Archives. In the ‘The Torture Files’, the RTE Investigations Unit argued that new evidence could justify a re-visiting of the European Court of Human Rights judgment in the Ireland v United Kingdom case. The programme was broadcast on RTE on Wednesday 4th June 2014. It led to calls from Amnesty International and the Sinn Féin President Gerry Adams to request the ECHR to re-open the case. Amnesty International’s Northern Ireland Programme Director Patrick Corrigan described the evidence that the British Government misled the European Commission and Court of Human Rights during the proceedings as ‘deeply worrying’. The revelations in the Torture Files were discussed in an earlier blog post.
What has happened since the broadcast was that the RTE Investigations Unit was asked to hand over its research for the broadcast to the Law firm for the ‘Hooden Men’ and to the Irish Department of Foreign Affairs. This was to form the critical mass of research for the Irish Government’s consideration of whether to request the ECHR to re-open the case and reconsider its decision on article 3 and the five techniques. It primarily consisted of research collected from the British Archives. The timeline for this request to the ECHR ran out on Thursday 4th December. In advance of the deadline, the legal representatives of the ‘Hooden Men’ submitted an application to the Irish High Court to compel the Irish Government to make a decision. However, on Wednesday 3rd December, the Irish Government submitted that they would request to re-open the case. Minister for Foreign Affairs Charlie Flanagan stated in a press release:
The Government is aware of the suffering of the individual men and of their families, of the significance of this case, and of the weight of these allegations. The archival material which underlay the RTÉ documentary was therefore taken very seriously by the Government and was subject to thorough legal analysis and advice. On the basis of the new material uncovered, it will be contended that the ill-treatment suffered by the Hooded Men should be recognised as torture. The Government’s decision was not taken lightly. As EU partners, UK and Ireland have worked together to promote human rights in many fora and during the original case, the UK did not contest before the European Court of Human Rights that a breach of Article 3 of the European Convention of Human rights took place. The British and Irish Governments have both worked hard to build stronger more trusting relations in recent years and I believe that this relationship will now stand to us as we work through the serious matters raised by these cases which have come to light in recent months’.
 Amnesty International called this ‘a triumph of justice after more than 40 years of waiting’.

This blog post was contributed by Dr Aisling O’Sullivan, lecturer in law at Sussex Law School. Dr O’Sullivan was project researcher with Professor Schabas, who was the Principal Investigator, on a project funded by the Irish Research Council for the Humanities and Social Sciences ‘Ireland’s Participation in International Human Rights Law and Institutions’. The research included an investigation of Irish and British National Archives files on the Ireland v UK case. The research, which was undertaken at the Irish Centre for Human Rights, was used by RTE in preparation of ‘The Torture Files’.

Wednesday, 10 December 2014

Transatlantic Torture: The Senate Report, the “Hooded Men” and the Regrettable Role of the European Court of Human Rights

This is a guest post by Dr Michelle Farrell, who is a lecturer in Law in the School of Law and Social Justice at the University of Liverpool. She is the author of The Prohibition of Torture in Exceptional Circumstances (Cambridge University Press, 2013).

Torture is back in the headlines. On 9 December, the Senate Select Committee on Intelligence released its long awaited controversial report on the use of torture in the aftermath of 11 September by the CIA. The report was over 6 years in production, runs to thousands of pages, is heavily redacted and – surprise, surprise – illustrates that – amongst other things – the methods used were ineffective, were based on fabricated claims of effectiveness and were much more brutal and were used much more extensively than was recounted. The report’s release has caused a huge stir; so far there has been plenty of commentary on the question of criminal accountability and there have been lashings of liberal outrage at the extent and methods of violence used. Many have pointed out that the contents of the report ought to come as no surprise. We knew – or suspected – a lot of this already. The report will no doubt be dissected in great detail over the coming days, weeks and years.

Bad Torture v Good Torture
Ostensible liberal democracies do not like to be called out as torture practicing states. In an effort to explain away the violence, states seek – as the Bush administration did – legal and moral cover, intellectual and popular support in the form of torture apology and justificatory rationales in the form of necessity and life-saving information extraction. Moreover, states invariably try to recast torture as something else. For the Bush administration, it was “enhanced interrogation techniques”. For the Israeli Landau Commission, it was “moderate physical pressure”. These efforts at definitional gymnastics and legal and moral justification produce a torture compliant culture.

Revisiting the UK’s use of torture
Beyond the Senate report in which the UK is implicated, the UK government and indeed the European Court of Human Rights  have a distinct – yet not unrelated – torture issue to handle. Earlier this month, on 2 December, Ireland’s Minister for Foreign Affairs, Charlie Flanagan, announced that Ireland would request the European Court of Human Rights to revisit its decision in the infamous case of Ireland v UK – a torture-centred case – decided in 1978. The decision of the Court in this case set the scene for much legal definitional wrangling over the meaning of torture. Ireland v UK was far reaching in impact and in a way that does not flatter. The decision was cited in the Bybee ‘torture’ memo and by the Landau Commission in Israel in the late 1980s to justify both states’ unconscionable interpretations of torture.

Ireland v UK was initially taken by Ireland against the UK to the European Commission on Human Rights in December 1971. It concerned the alleged breach by the UK of a number of provisions of the European Convention on Human Rights following the introduction of internment in Northern Ireland in August 1971. At the heart of the case were allegations of the use of torture and other forms of ill-treatment by British agents against a number of individuals – the so-called ‘hooded men’ - under interrogation in secret detention centres in Northern Ireland. Their torture has become known, euphemistically, as “interrogation-in-depth” or the “five techniques”. These five techniques were hooding, wall standing in a stress position, white noise, sleep deprivation and deprivation of food and water, perpetrated over a period of days and enforced through - as we now know - assaults and death threats.

Torture one day, inhuman and degrading the next
The European Commission found that the use of the “five techniques” in the interrogation of fourteen individuals amounted to torture in breach of Article 3 of the European Convention. Article 3 states simply: “No one shall be subjected to torture or to inhuman and degrading treatment or punishment.” The Commission reached this conclusion having reasoned that the techniques were deliberately employed to break the will of the individuals. Although, the Commission reasoned, the five techniques “might not necessarily cause any severe after effects”, it saw in their use “a modern system of torture”.

Following the release of the Commission’s report in 1976, the Government of Ireland had the case referred to the European Court, with a view to achieving an authoritative Court decision. The Court offered a different interpretation of the five techniques to that of the Commission. By a vote of 14 to 3, it found that, used in combination, the five techniques constituted inhuman and degrading treatment in breach of Article 3. However, the techniques did not constitute torture as “they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood”. In reaching this determination, the Court introduced the idea that there is “a special stigma” attached to torture which differentiates it from inhuman and degrading treatment.

The Torture Files
On 24 November, Amnesty International requested Ireland to reopen this case. Their request followed the unearthing of new evidence by the Pat Finucane Centre and by RTÉ, Ireland’s national broadcaster. In June 2014, RTÉ aired the Torture Files, a half hour documentary which disclosed archival material demonstrating that the British government had withheld evidence during the European Commission and Court hearings. The Torture Files also documents the experience of the fourteen men subjected to the five techniques, and it shows, sensitively and significantly, the immediate and the long-term suffering endured by the men. In one scene, the wife of one of the interrogated men, Pat Shivers, who died of cancer in 1985, remarks “even yet, I think, I wish they had killed him then. It would have saved him the horrors of having to relive that over and over again”. Her words recall those of Jean Améry, a member of the Belgian resistance, tortured by the Gestapo in 1943: “Whoever was tortured, stays tortured”.

New Disclosures
The Torture Files is not only effective in un-hooding the men, made so famous and yet anonymous by these European cases. It also demonstrates the extent of British bad faith during the proceedings. The documentary reveals that the British Government knew that the use of the five techniques produced long term psychological effects, a fact that it failed to disclose during the proceedings. In addition, the documentary exposes the extent to which the use of the five techniques constituted a political decision at the highest levels, sanctioned by then Secretary of State for Defence, Lord Carrington. At the Commission and the Court, the Government denied such responsibility.

The Troubling Role of the European Court
Whether or not this case is substantively revisited, I do think it is important to remember the damaging role played by the European Court of Human Rights in saving the UK from the “special stigma” of torture. Whilst, of course, the real crimes in all of this were committed by the British authorities and the individual perpetrators, the European Court ought not to be excused for its erroneous decision in 1978 on the basis that it did not have all the evidence, since disclosed by the Torture Files. The European Court had the same information as the Commission. The Court reached its different determination on the basis of flawed and dangerous interpretations wielded because, in the face of one of Europe’s leading and influential liberal democracies, it acted politically and spinelessly.

Perhaps it is with the benefit both of hindsight and of being far-removed from the fractious politics of the 1970s that I and others can criticise the European Court for its decision in Ireland v UK. Yet those judges exercised arrogant discretion in finding themselves capable of determining how ill-treated these men were, even if deference to the UK was the underpinning motivation. The interpretational aids dragged in to the Court to decide Ireland v UK are still in play. Torture versus other forms of ill-treatment is still – for the Court - a matter of severity of pain; it still has a ‘special stigma’. The Court has generated a confused concept of torture. The treatment of the “hooded men” was torture stricto sensu. To avoid the “bad word”, the Court downplayed inhuman and degrading treatment.  Oddly, therefore, the Court managed, by creating a special stigma for torture, to convey inhuman and degrading treatment as somehow less severe, less serious. And this was all done under the banner of human rights.

The European Court is powerless to stop torture. It does have the power to stay out of messy debates about thresholds of pain and suffering. More importantly, it has a responsibility to victims. The case was poorly and politically reasoned. It remains relevant because it has influenced global understanding of torture to date. It remains relevant because it concerned a state which has since gone on to practice torture again, in Iraq and elsewhere. And it remains relevant because it contains the kind of logic that has underpinned the whole US torture farce.  Perhaps today’s judges will have the chance to correct their predecessors.

Wednesday, 3 December 2014

The end of the Kenyatta trial?

I have previously reported on the 'indefinite adjournment' sought by the Prosecution in the ICC's case against Kenyan President, Uhuru Kenyatta. The request followed a worrying trend, discussed in some detail here, where vague concepts such as 'the interests of justice', 'ending impunity', and 'the rights of the international community' are put forward as justification for derogations from the rights of the accused.

A decision of Trial Chamber V(B), issued today, clearly reinstates the fundamental importance of the rights of the accused. It also seems noted the exceptional nature of the measures sought, by emphasising that 'it should have been incumbent upon the parties to thoroughly support [their] requests, by reference not just to the factual circumstances but also to applicable legal standards, principles and authorities.'

Crucially, the Chamber noted that the Prosecution, by its own admission, did not have sufficient evidence to proceed to trial, some five years after investigations in the Kenya situation opened and almost four years since Kenyatta was named as an accused. On that basis, the Chamber was 'of the view that the appropriate course of action would now be the prompt withdrawal of charges'. It has given the Prosecution a week to file a notice either withdrawing the charges, or declaring that it now has sufficient evidence to proceed to trial. It would seem very likely that Mr Kenyatta will be a free man by Christmas. 

Sunday, 16 November 2014

Inner Temple Book Prize

The Inner Temple has just announced its 2015 Book Prize. Original works published between 2 February 2011 and 31 December 2014 are eligible, and there are no restrictions on authors' domicile or nationality. The prizes are very generous - £12,000 for the main prize and £5,000 for the New Authors Prize. Further information can be found here.

Friday, 14 November 2014

Dr Margaret deGuzman

Margaret deGuzman successfully defended her doctoral thesis at the National University of Ireland Galway on 10 November 2014. Her thesis is entitled 'Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law'. She was examined by Prof. Kevin Jon Heller of the School of African and Oriental Studies and Prof. Ray Murphy of NUI Galway. Dr Shane Darce chaired the examination. She was supervised by Prof. William Schabas. Meg deGuzman is a Professor at Temple University School of Law. Congratulations!
From left, Ray Murphy, Kevin Heller (on skype), Meg deGuzman and Shane Darcy.

Wednesday, 5 November 2014

'Indefinite Adjournment' or 'Deferment'?

I have read, with great interest, the transcript from the status conference in the Kenyatta case before the International Criminal Court last month. In it, the prosecution requests an 'indefinite adjournment' of the case, by which it means an 'adjourn[ment of] the case without fixing a date'. This is a remarkable request, and raises serious fair trial issues insofar as the prosecution has essentially proposed to allow the matter to drag on indefinitely without any fixed date for the start of trial, owing to insufficiencies in its own evidence. One is reminded of Kafka's The Trial:

"Deferment," said the painter, looking vaguely in front of himself for a while as if trying to find a perfectly appropriate explanation, "deferment consists of keeping proceedings permanently in their earliest stages. To do that, the accused and those helping him need to keep in continuous personal contact with the court, especially those helping him. I repeat, this doesn't require so much effort as getting an apparent acquittal, but it probably requires a lot more attention. You must never let the trial out of your sight… you can be reasonably sure the trial won't get past its first stages. The trial doesn't stop, but the defendant is almost as certain of avoiding conviction as if he'd been acquitted… Proceedings can't be prevented from moving forward unless there are some at least ostensible reasons given. So something needs to seem to be happening when looked at from the outside. This means that from time to time various injunctions have to be obeyed, the accused has to be questioned, investigations have to take place and so on. The trial's been artificially constrained inside a tiny circle, and it has to be continuously spun round within it.

The request is also notable for the suggestion that the nebulous concept of the 'interests of justice' should be tantamount to the rights of the accused:

In particular, the Prosecution submit, the interests of justice should be paramount here. I don't mean to say that the defendant's rights should be ignored for a moment, but the interests of justice should, I submit, be the most important consideration in your Honours' minds.

Tuesday, 4 November 2014

Public lecture: ‘How do we Protect Liberty without a Bill of Rights - Lessons from the Cold War’

‘How do we Protect Liberty without a Bill of Rights - Lessons from the Cold War’
by Professor Keith Ewing,  Professor of Public Law, King’s College, London 

Wednesday,  12 November 2014 at 5pm
Lecture Theatre 7, Rendall Building

Human Rights and International Law Unit
School of Law and Social Justice
University of Liverpool

Recent revelations about MI5 surveillance of academics raise serious questions about the application of constitutional values during the Cold War.   In fact, it was the tip of the iceberg, with tens if not hundreds of thousands of British citizens under surveillance by the State.   How was this allowed to happen in a liberal democracy?   Conversely, the Communist Party was not banned in the United Kingdom, unlike in the United States where constitutional values were legally embedded.   Indeed, in the post war era there was a strong commitment at the highest levels of British government to constitutional values such as freedom of expression and freedom of association in a country without a Bill of Rights.   What explains these extraordinary contradictions?   How was it possible by political means to protect political liberty in a system where judges perceived their role to be one of facilitating the process of government?   What were the relative strengths and weaknesses of these political protections of constitutional values, and why did they fail so spectacularly in the case of surveillance?

A wine reception will follow the event.

Thursday, 23 October 2014

Dr Giulia Pecorella

From left, Nadia Bernaz, Giulia, Michael Scharf (on screen), Anthony Cullen and myself.
Giulia Pecorella successfully defended her doctoral thesis today at Middlesex University. The topic of the thesis was the United States and the Crime of Aggression. The examiners were Dean Michael Scharf of Case Western Reserve University School of Law and Dr Nadia Bernaz of Middlesex. The supervisory team was composed of Dr Anthony Cullen and myself. Congratulations, Giulia.

Wednesday, 22 October 2014

Interim release at the ICC

The International Criminal Court announced yesterday that four of the accused in the Central African Republic situation would be released pending trial. The suspects are to spend their interim release in the UK, Belgium, the Democratic Republic of the Congo and France. This is a positive development from 2009, where six states were called upon to cooperate with the Court in giving effect to Jean-Pierre Bemba Gombo's provisional release, but failed to do so. The decision to release the accused was overturned on appeal, before the issue of state cooperation could be fully resolved.