Thursday, 4 September 2014

Research tools on the international criminal tribunals

One of the distinguished defence counsel at the International Criminal Tribunal for the former Yugoslavia, Peter Robinson, has prepared 'research tools' on the case law that are available on line. These are summaries of relevant case law for the Yugoslavia Tribunal as well as for the Mechanism that replaces it. The guide to the case law of the Mechanism is quite unique, as far as I know.

Saturday, 23 August 2014

Death penalty in the United States

Readers may be interested in this infographic about capital punishment in the United States.

Monday, 18 August 2014

Human Rights in the UK Media: Representation and Reality

Dr. Michelle Farrell of the School of Law, University of Liverpool, is organising a fascinating conference on the theme of 'Human Rights in the UK Media' on 19 September 2014. This seminar, supported by the Modern Law Review, brings together constitutional and international law researchers, media and communications researchers, journalists, legal practitioners and civil society actors for an interdisciplinary discussion on the media's representation of human rights. The seminar will facilitate a bridging of the gap between theoretical and practical understandings of human rights and encourage knowledge exchange on human rights as seen from various perspectives.

The programme includes Professor Colm O'Cinneide (UCL); Nuala Mole (AIRE Centre); Dr Aoife Daly (Liverpool); Dr Michael Kearney (Sussex); Colin Murray (Newcastle); Susanna Sampaio Dias (Cardiff), and Owen Bowcott (The Guardian). The keynote speaker is Professor David Mead from the University of East Anglia.


To register, please follow this link

Tuesday, 29 July 2014

Special Tribunal for Lebanon does not have Jurisdiction over Legal Persons

On 24 July, Judge Lettieri, acting as contempt judge of the Special Tribunal for Lebanon, decided that the Tribunal does not have jurisdiction over corporations for contempt offences, contrary to an earlier decision discussed at length here. The Contempt Judge noted:
Irrespective of one's position as to the better policy (and I could even agree with Judge Baragwanath de lege ferenda), the fact that the Tribunal is not allowed to prosecute legal persons does not as such render its contempt power meaningless. The natural persons who comprise a corporation, no matter how high their position, can still be held responsible for interfering with the administration of justice and this makes the Tribunal's authority to deal with contempt and obstruction of justice effective. 
A number of amici curiae briefs challenged the Tribunal's inherent jurisdiction over offences against the administration of justice generally and their impact on the right to freedom of expression. The Contempt Judge rightly held that jurisdiction over such offences is a necessary corollary to the exercise of judicial powers, as I discussed at length in my chapter on contempt offences in this volume. He also found that the balance with freedom of expression was not relevant to the question of whether the Tribunal could have jurisdiction over such offences. 

Saturday, 26 July 2014

Towards 'Positive Complementarity'?

On Thursday, the Appeals Chamber of the ICC confirmed the Pre-Trial Chamber's decision that Abdullah al-Senussi should stand trial in Libya. An interesting part of the judgment addresses the issue of 'positive complementarity' (see some excellent contributions to the debate here, here and here); that is, whether an overly-harsh trial not according the full panoply of rights to the accused could fall afoul of Article 17's 'unwilling' or 'unable' criteria:


Taking into account the text, context and object and purpose of the provision, this determination is not one that involves an assessment of whether the due process rights of a suspect have been breached per se. In particular, the concept of proceedings "being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice" should generally be understood as referring to proceedings which will lead to a suspect evading justice, in the sense of not appropriately being tried genuinely to establish his or her criminal responsibility, in the equivalent of sham proceedings that are concerned with that person's protection. 

However, there may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be "inconsistent with an intent to bring the person to justice". 
The second paragraph seems to suggest that the door is not fully closed to a more expansive interpretation of the complementarity clause, to include unfairness to the accused. Conversely, however, the Appeals Chamber refused to accept additional evidence from the defence, which purported to show that the authorities had mistreated the accused in custody for the purposes of obtaining a confession from him. 

Wednesday, 23 July 2014

Decision on Victims' Request for Disqualification of Judge van den Wyngaert from the Katanga case

The Plenary of Judges of the International Criminal Court yesterday rejected an application from the victims' representatives for the disqualification of Judge van den Wyngaert from the Katanga case. The victims had wanted Judge van den Wyngaert to be excluded from any considerations of reparations in the case, claiming that her dissents to the trial and sentencing judgments showed bias. Yesterday's decision contains an interesting paragraph on the value of separate and dissenting opinions:
Minority opinions protect judicial proceedings from the influence of forced uniformity, afford necessary impetus for the development of the law and prevent stagnation in decision making... [The Plenary] considered that minority opinions enrich the quality of decisions and improve their clarity from the perspective of the views of the judges thus expressed, and demonstrate to the parties, participants and public at large that a case has been thoroughly assessed. The Plenary considered it a paradox that a bastion of judicial independence was being used as a basis for the disqualification of the Judge.
Of course, it is unavoidable that judges have prior involvement with the case before the reparations stage of proceedings. If the application had been successful, it would have meant that reparations had to be decided upon by a newly-constituted panel of judges, who had not heard any of the evidence during the case.

However, the motion primarily failed because the majority (with three dissenters) held that victims did not have standing to request the disqualification of a judge. Article 41(2)(b) of the Statute refers solely to the Prosecutor and the accused, but victims had argued that Article 21(3) (the 'internationally recognised human rights' provision) called for an expansive interpretation of the provision to include victims. The majority rightly considered that the wording of Article 41(2) was unambiguous in granting the right to request disqualification solely to the parties. It also implicitly rejected the argument that victims become parties, as opposed to participants, at the reparations stage of proceedings, by stating that 'they are indeed important protagonists at the reparations stage.'

Lastly, on the issue of whether the apprehension of bias against one judge on the bench can give rise to an apprehension of bias against the bench as a whole, Judge Chile Eboe-Osuji noted in his separate opinion that not everyone accepts the wisdom of the epigram, "One bad apple spoils the bunch". He accompanied this observation with the following, highly entertaining, footnote:

Notably, the American pop band, the Osmonds, have literally recorded a contradictory note, insisting that ‘One bad apple don’t spoil the whole bunch’. 

Tuesday, 22 July 2014

Hans-Peter Kaul RIP

Judge Hans-Peter Kaul passed away earlier today after a short illness. He had resigned from the Court effective 1 July of this year.
I wrote about Judge Kaul and his immense contribution in late-June, when the resignation was announced, and will not rehearse what I said then. Here is the link.
He was a dear friend and I shall miss him greatly. I last saw him in The Hague in late March when we had a wonderful dinner together, chatting about many things including his plans following retirement from the Court, which was due in early 2015. When we had finished, he rode back to his home on his bicycle. A few weeks later, he was diagnosed with the illness that ended his life so abruptly. 
Our deepest sympathies go out to his wife Elizabeth and to the other members of his family.

Monday, 21 July 2014

Charles Ogletree Predicts Abolition of the Dealth Penalty by the United States Supreme Court


July 19, 2014 | Washington Post OpEd

The death penalty is incompatible with human dignity
By Charles J. Ogletree Jr.

I have wondered countless times over the past 30 years whether I would live to see the end of the death penalty in the United States. I now know that day will come, and I believe that the current Supreme Court will be its architect.

In its ruling in Hall v. Florida in May, the court — with Justice Anthony M. Kennedy at the helm — reminded us that the core value animating the Eighth Amendment’s cruel and unusual punishments clause is the preservation of human dignity against the affront of unnecessarily harsh punishment. Hall, which prohibited a rigid test in use in Florida for gauging whether a defendant is intellectually disabled, was the most recent in a series of opinions in which the court has juxtaposed retribution — the idea of vengeance for a wrongdoing, which serves as the chief justification for the death penalty — with a recognition of our hopelessly complex and fallible human nature.

What was important about Hall is the way Kennedy described the logic behind exempting intellectually disabled individuals from execution: “to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being” because the “diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment.” Though the court previously barred imposition of the death penalty upon intellectually disabled people, as well as juvenile offenders, Hall marked the first time that it went so far as to claim that imposing the death penalty upon offenders with these kinds of functional impairments serves “no legitimate penological purpose.”

This is why I see an end coming to the death penalty in this country. The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows. A new study by Robert J. Smith, Sophie Cull and Zoë Robinson, published in Hastings Law Journal, of the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits.

One-third of the offenders had intellectual disabilities, borderline intellectual function or traumatic brain injuries, a similarly debilitating impairment. For example, the Texas Department of Corrections determined that Elroy Chester had an IQ of 69. He attended special education classes throughout school and never functioned at a higher level than third grade. The state had previously enrolled Chester into its Mentally Retarded Offenders Program. Despite these findings, Texas executed him on June 12, 2013.

More than half of the 100 had a severe mental illness such as schizophrenia, post-traumatic stress disorder or psychosis. For example, for more than 40 years, Florida’s own psychiatrists found that John Ferguson suffered from severe mental illness. Ferguson had a fixed delusion that he was the “Prince of God” who could not be killed and would rise up after his execution and fight alongside Jesus to save the United States from a communist plot. When Ferguson was executed on Aug. 5, 2013, his last words were: “I just want everyone to know that I am the Prince of God and I will rise again.” A Florida court had called Mr. Ferguson’s delusions “normal Christian beliefs.”

Many other executed offenders endured unspeakable abuse as children. Consider Daniel Cook, whose mother drank alcohol and abused drugs while she was pregnant with him. His mother and grandparents molested him as a young child, and his father physically abused him by, for example, lighting a cigarette and using it to burn Daniel’s genitals. Eventually the state placed Daniel in foster care, but the abuse didn’t stop. A foster parent chained him nude to a bed and raped him while other adults watched from the next room through a one-way mirror. The prosecutor responsible for Cook’s death sentence stood behind him during the clemency process, telling authorities that he would have taken the death penalty off of the table had he known of his torturous childhood. Arizona refused to commute Cook’s sentence, however, and he died by lethal injection on Aug. 8, 2012.

As the execution of Elroy Chester, John Ferguson, Daniel Cook and many more like them illustrates, barring the death penalty for intellectually disabled and juvenile offenders did not solve the death penalty’s dignity problem. Rather, those cases gave us cause to look more closely at the people whom we execute. And when you look closely, what you find is that the practice of the death penalty and the commitment to human dignity are not compatible.
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Charles J. Ogletree Jr. is a professor at Harvard Law School.

Where is the Prlić et al. Judgment?

The Trial Chamber in Prlić et al. issued its judgment on 29 May 2013, sentencing all six co-accused to terms of imprisonment between 10 and 25 years, with credit for time served (since April 2004). At the time, a summary judgment was issued, and while apparently a full judgment in French has been made available to the parties, no judgment in English or in French is as yet available via the ICTY's website. The accused Pušić (who would be due for release around now, were it not for the ongoing appeals) noted in his appeal brief of 27 June that neither he nor his lawyers had been furnished with the judgment in a language that they are proficient in. 

It is clear from the appellate briefs that the judgment is lengthy, at least four volumes. Nevertheless, a delay of over a year between issuance of the judgment and publication of same is inexcusable, especially when parties are requested to lodge their appeal briefs without having been given the full judgment in a language that they understand. 

Sunday, 20 July 2014

Researcher Position on Extra-territorial Application of Human Rights Law


Ralph Wilde of University College London is recruiting a three-year Research Associate position, starting in September, for a project on the extraterritorial application of international human rights law.  Please find attached the job description.  The link to the advertisement is here.
Because the post does not meet the UK Resident Labour Market Test, only candidates who already have the right to work in the UK can be considered.