The Garda Tapes Controversy

One curious aspect of the Garda tapes controversy has been the focus that some commentators have placed upon the role of the Attorney General Máire Whelan and the misunderstandings as to the role of the Attorney.

Although the Attorney General was not mentioned in the Free State Constitution of 1922, the Office of Attorney General has existed since the foundation of the State.  The Ministers and Secretaries Act, 1924 at Section 6 gave the office some post-independence legislative grounding charging the Attorney with representing the State in legal actions, prosecuting offences (a role which was taken over by the DPP in 1974) and the duty of advising the Government in matters of law and legal opinion.  The First Attorney General post-independence was Hugh Kennedy, who was also elected to the Dáil as a TD in 1923 and served in both offices for a number of months.  During the Dáil debates on what became the Ministers and Secretaries Act, 1924 a number of Deputies noted that there was significant confusing as to whether the Attorney was a member of the Government or not.

Article 30 of Bunreacht na hÉireann 1937 set out the constitutional position regarding the Attorney General and her role. There were few changes to the role with Article 30.1 confirming that the Attorney is an advisor to the Government in matters of law and legal opinion although there were a number of additional roles and responsibilities for the Attorney in the areas of references of Bills under Article 26 and the Council of State (of which she is an ex-officio member).  Article 30.4 makes it clear that the Attorney is not a member of the Government and while the Attorney sits in on cabinet meetings as an advisor she is not a member of the government. This point is particularly important when it comes to the current debate around the Garda tapes.

It is, as yet, far from clear what exactly has transpired and what the long term effects of the Garda tapes controversy will be. It had appeared from initial reports that the Attorney General was aware to a certain extent that the practice of records was ongoing and that she has been working with the Commissioner investigating the matter since November [**but see update below]. It also appears that the Attorney approached An Taoiseach to further highlight the issues and additional details that have come to light, which, according to reports, arose in the context of ongoing litigation.

There have been questions both inside and outside the Dáil as to why the Attorney did not bring this to the attention of the cabinet sooner. However, in many ways, these questions miss the point. Firstly, it is unclear to what extent the Attorney was aware of the recordings and the systems in place with Garda Stations, as she clearly lacks any formal relationship with the force. Secondly, while I understand that it is practice for the Attorney to brief the Cabinet on important cases and working groups throughout the year, she could not possibly bring every case she works on to Cabinet and it is utterly unrealistic to expect her to do so.

Finally – and most crucially – the Attorney is clearly not a member of Government (as stipulated by Article 30.4 of the Constitution), but rather a legal advisor to the Government. She has no executive power whatsoever in relation to the Gardaí, the administration of justice or prosecution of offences; such power correctly vests in the Minister for Justice. It would simply have been outside of the Attorney General’s constitutional ambit to go any further than to advise the Government of matters as she became aware of them and their importance; she could not ever act unilaterally. The current Attorney has shown herself willing to give unpopular advice to the Government, particular in the context of the Referendum on the Fiscal Compact Treaty. Any attempts to scapegoat the Attorney for the current crisis would be wide of the mark based on the current information available.

[*Update: latest reports indicate that the AG was not aware of full extent of the systematic taping in November, was not a member of the working group established to look into the matter and only became aware of the extent of the system in place in the last few days.]

Dr Seán Ó Conaill is the Director of the BCL (Law and Irish) Programme at UCC.

Dignifying the most vulnerable ‘in’ and ‘through’ Security Council Resolution 2139

Sarah M. Field

(19th March 2014, Oxford Human Rights Hub)

Conflict — perhaps like no other happening — illuminates our shared vulnerability to hurt and harm of unimaginable form and depth.  The legal protection of rights was born of such suffered injustice. To an extent then, it may be viewed as a juristic response to our embodied vulnerability.  Therein lies one of the enduring paradoxes of international human rights law; the most vulnerable frequently have the least access to justice. Consider the hundreds of thousands of besieged in Syria: over a thousand days since the conflict began rights violations cascade; violations of the rights to life, freedom from hunger and of movement layer upon violations of the rights transformers beneath — the rights to legal remedies, take part in public affairs, freedom of expression and association, amongst others. And, the sole possibility of redress is conditional on one of the most precarious of all political processes — decision-making towards peace agreements.

Geneva II presented hope: the Communiqués of Geneva I and the London 11 both required ensuring the right to humanitarian assistance as a part of more substantive negotiations. As the two-staged process stalled to a fracturing halt on the 15th February, the hope transferred to the Security Council. The decision to adopt Resolution 2139demanding the parties to the conflict respect and ensure respect for applicable international law — presented a breakthrough. However, the imperative for, the process of its adoption, and the substance of the resolution including the missing (negotiated-out) provisions illumines, under harsh light, the inadequacies of international law. Of course, the multifarious instruments of international human rights and humanitarian law include vital — dignity affirming — devices. If, the Syrian State had implemented the past recommendations of the Human Rights Committee, might the conflict have been averted? And if the parties to the conflict had heeded the guidance of the guardian of international humanitarian law, might the hurt and harm have been lessened? Of course, the operative word here is — if.

Into the breach, steps the international community ‘in’ and ‘through’ the Charter bodies. For the people living under siege, these are also vital spaces for their rights to be seized, shaped and expressed: general and Syria-specific recommendations and decisions provide a basis for advocacy and redress now and into the future, for example, the decision by the Human Rights Council to establish an Independent International Commission of Inquiry.  However the form and process of decision-making (including rules) also may be viewed as concurrently creating vulnerability. The State-centric form by exclusion: for example, whereas the Syrian State was represented within the Security Council, those made vulnerable by the forces of the State were unrepresented; they were dependent on the international community seizing, shaping and expressing their rights. And the process by (in)action: whether or not their rights are secured is dependent on political agreement about the facts and the response — specifically between the five veto-wielding members.

The vulnerability effects of the latter are obvious and graphically illustrated by the resolution: the demands on the parties to the conflict to respect and ensure respect for international law are not matched by decisions to secure the right to humanitarian assistance of the people of Syria. However the form and process also creates vulnerability in a more subtle way, by subverting the position of the right-holder — reframing bearers of rights to objects of international protection.  De jure, the people under siege remain ‘equal in dignity and rights’. De facto, (without representation and effective remedies) they are dependent on a precarious collision of legal, political and principled imperatives for redress. Viewed in this way, neither the process nor the outcomes dignify the people of Syria.

Though deeply inadequate, the resolution is nonetheless a vital dignity-affirming agreement. First, it states that international law matters, rights matter. Second, it illumines the potentialities of law into the future: connecting violations to international crimes, establishing a monitoring and reporting mechanism and expressing an intention for further action upon non-compliance. Third, it re-affirms the import of a rights-based political solution: the full participation of the people of Syria ‘in’ and ‘through’ the peace trajectory.  Countering the inaction, then, is the fact of agreement by a divided Security Council. Geneva II stalled, the right to veto looming over future Security Council decisions with foreboding bleakness, the question of how to secure the rights of the most vulnerable remains — reducing us all.

With thanks to the Oxford Human Rights Hub for their generosity in permitting the re-posting of this blog entry of 19th March 2014. See also, the original posting, accessible here

Sarah M. Field is a Human Rights Practitioner with global experience supporting the rights-based development of the rule of law, a Post-Doctoral Researcher at the Faculty of Law, University College Cork, Ireland and the founder of a developing legal advocacy project asking the child question.

Seminar on Gender Law and Sexuality in Pakistan

WARWICK-WARWICK-189781904 javaidOn January 23rd, the Centre for Criminal Justice and Human Rights and School of Asian Studies, UCC, will host a seminar on Gender, Security and Islam: Negotiating religion, culture and conflict in Pakistan, with leading international human rights law experts.

Prof Shaheen Sardar-Ali, Professor of Law, University of Warwick and Vice-President UN Working Group on Arbitrary Detention will speak on ‘The Dynamics of Family Law Reform in Pakistan: A Gender Perspective’ . Prof Javaid Rehman, Professor of Islamic Law and Human Rights, Brunel Law School will speak on ‘Sexual Minorities and Islamic State Practices: Examining the issue of the rights of LGBT and other sexual minorities in Pakistan’.

 Thursday Jan 23rd, 3-5pm, Venue: Aras na Laoi, Moot Court room (first floor, to the left of the Law Dept reception office).  

This event is supported by an Irish Research Council New Foundations award. All Welcome.

 

Geneva II, politicking and possibility for Syria’s invisible 43%

Sarah Field

Sarah M. Field (Oxford Human Rights Hub, 8th January 2014)

The possibility of peace in Syria may seem more like an international force (pun intended) than a beacon of hope. History though tells us to ‘believe…’.* The form of the conflict’s resolution is simply unimagined — as yet. Dig deeper though and history also tells us another story: the transformation of conflict is likely to be partial — children, particularly, are likely to be invisible within decision-making towards peace agreements. To date, the Syrian peace process substantiates this: there is no reference to children — 43% of the population — within Geneva Communiqué I and just one reference within the Communiqué of the London 11 

And herein lies the paradox. From the Central African Republic to Syria (and beyond), no one can be unaware of the impact of conflict on children. Though politicians recurrently invoke this — the children hurt and harmed by conflict — as a call to action (whether towards military action or advancing peace), they seldom raise the subject of children and their rights within decision-making towards agreements. A cynic might reason the confluence of interests is missing; without any broader political gain, principled commitments to children are insufficient to ensure the child question is raised and prioritised. Certainly there is some truth to this reasoning. However, it is also likely the politicking towards — and subsequently within — the peace trajectory spaces subsumes consideration of children.

Simply, there is nobody to raise, and prioritise, the subject of children and their rights. There is nothing new about this: all it does is re-affirm why rights are important, the right to be heard particularly. Or in other words an intimate connection to the right — as that of the right holder — is key to asking the child question, influencing the process and impacting on the outcomes (the peace agreements). The question then is how: how to ensure children’s rights ‘in’ and ‘through’ the process. To an extent the answer to this is simple: fulfilling those promises our representatives made to children over twenty-four years ago — legal obligations almost all jurisdictions have committed to by virtue of ratification of the Convention on the Rights of the Child including the Syrian Arab Republic. Two are of particular relevance: ensuring the best interests of the child and assuring respect for children’s views within decision-making affecting them.

Of course, applying these legal obligations to peace processes is complicated. However, contrary to our imaginings, peace processes also present possibilitiesFirst, the staged and elongated character provides space for asking the child question. Second, the hybrid legal form ensures engagement with international law including within decision-making about how to constitute the space. Third, there is often an interface between political commitments to international human rights law and political imperatives — asking the human rights question (transforming inequalities within the process and outcomes) contributes towards advancing the peace momentum. Fourth, the creativity that propels peace processes forward as they fracture and stall opens space for dreaming ‘…things that never were…’.*  

Framed by over 1,000 days of conflict in Syria, the political challenges of securing a peaceful solution are immense. History tells us though within (and between) these challenges there are possibilities for securing a peace inclusive of children. A possible beginning is to appoint a legal representative to the space with a mandate to ask the child question — raise the subject of children and their rights. Without such a structural response, there is no certainty the child question will be asked as the peace trajectory edges falteringly forward. If the child question remains unasked, the possibility of outcomes for the children of Syria is reduced — now and into the future.

 14 days until Geneva II, now, is the time to ensure children are part of the conversation.

 *These are quotations from respectively Seamus Heaney (‘The Cure at Troy’) and George Bernard Shaw (‘Back to Methuselah’).

 

With thanks to the Oxford Human Rights Hub for their generosity in permitting the re-posting of this blog entry of 8th January 2014. See also, the original posting, accessible here

Sarah M. Field is a Human Rights Practitioner with global experience supporting the rights-based development of the rule of law, a Post-Doctoral Researcher at the Faculty of Law, University College Cork, Ireland and the founder of a developing legal advocacy project asking the child question. This posting is part of a series probing the paradoxes and consequences of children’s invisibility within peace processes and the challenges and possibilities for more inclusive processes.  

Prosecutor of the International Criminal Court, Ms Fatou Bensouda, to deliver a public lecture at the Royal Irish Academy, Dublin

Fatou Bensouda

The Prosecutor of the International Criminal Court, Ms Fatou Bensouda, will deliver a public lecture at the Royal Irish Academy, Dublin, on Monday 16th December, on the topic, ‘The International Criminal Court: current challenges and future prospects.’  The event will be chaired by the Chief Justice, Ms Justice Susan Denham.

 

The event is hosted by the Centre for Criminal Justice and Human Rights, Faculty of Law, UCC, and the Department of Foreign Affairs and Trade.  It is the first public event held in Ireland by the Office of the Prosecutor of the International Criminal Court .

 

Ms Fatou Bensouda, a national of The Gambia, was elected to the position of the Prosecutor of the International Criminal Court, on 12 December 2011. Ms. Bensouda had previously held the position of ICC Deputy Prosecutor (Prosecutions). Prior to her work at the International Criminal Court, Mrs. Bensouda worked as Legal Adviser and Trial Attorney at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, rising to the position of Senior Legal Advisor and Head of The Legal Advisory Unit.

 

For further information contact Prof Siobhán Mullally, Director of the Centre for Criminal Justice and Human Rights, s.mullally@ucc.ie  (Please note that this event is fully booked.)

 

‘A voice for sexual orientation and gender identity in the Universal Periodic Review’

We are delighted to welcome this guest post from Aengus Carroll, who recently completed the LLM in International Human Rights Law and Public Policy at UCC.  Aengus’s LLM dissertation examined sexual orientation and gender identity rights claims and advocacy through the Universal Periodic Review mechanism.

 ‘A vBannerHRCoice for sexual orientation and gender identity in the Universal Periodic Review’ (edited extract from 2013 UCC LL.M dissertation  by aenguscarroll@gmail.com)

 Perhaps one of the central problems at the UN Human Rights Council (HRC) in regards to establishing a cognisable norm around sexual orientation and gender identity (SOGI), a subject that resonates so many deeply-held cultural and personal values, is the modus operandi through which these considerations are happening. Regional groups (cross cut by organisation membership, such as the 57-State Organisation of Islamic Cooperation) make politicised and recalcitrant statements regarding human rights in dialogues and Resolutions that are then voted on, rather than having the space for expansive or explorative dialogue for what are genuine concerns to be aired in anything other than polarised terms.

The Universal Periodic Review process, completed its first four and a half year cycle in 2012. Its dialogic structure seems to facilitate an expansive understanding of the multiple perspectives existing in any one State on human rights issues, and how they intersect or relate to each other. Although the UPR is a State-centric process, engagement in the process by civil society organisations, brings to the fore uniquely situated perspectives on how cultural values interact with diversity, including diversity in gender identity and sexual orientation.  The preparation for, and follow on from, the act of articulating such perspectives in the UPR reporting cycle, builds capacity for civil society organisations (CSOs), including NGOs. The process can, and frequently does, open human rights defenders and particular minorities to considerable risk, often State-sponsored and citizen-led.

The UPR enhances a potential already long realized by SOGI advocates with UN mechanisms: use the international space as an amplifier to get their issues heard at their own national levels. The UPR process acts as a ‘loudspeaker’ for CSOs’ reports and data that expose how, in the case of SOGI, the over-arching issues of discrimination and criminalisation lead to violations of positive and negative obligations under IHRL in domestic settings regarding LGBT people.

Through the UPR process, ‘action level’ categories have been designed that are indicated by the type of primary action verb used by the Recommending State (hereafter RS). These can be divided into five types, ranked on a scale from 1 (minimal action), 2 (continue doing), 3 ((to consider), 4 (general action) to 5 (specific action).[1] The verb used defines whether the SuR is requested only to ‘consider’ the action or to complete it. In his recent analysis of the HRC, Rathberger notes that amongst all the recommendations issued through the first cycle of the UPR (sessions 1-12), the more specific or action-oriented the recommendations the lower the acceptance rate.Further, he notes that explicit or outright rejections of recommendations tended not to be articulated, reluctance being coded in such terms as “taking note of recommendations” or other general responses.

However, this conciliatory or diplomatic approach appears to apply to SOGI much less often, the subject of which has frequently elicited strong and unambiguous rejection from African (AF) and Asian & Pacific (AS-PAC) bloc States particularly, in all action categories. Their responses to recommendations reflect issues of sovereignty and tradition, most often in terms of protecting public morality. The overall acceptance rate for all recommendations in the first cycle of the UPR was 73% according to Schlanbusch, however acceptance of the recommendations related to recognition of SOGI-related human rights was only 36%.

From a total of 21,353 recommendations to all States in the first cycle, only 493 (2.3%) referred to sexual orientation and gender identity (across the five action types). The UPR-info database shows that of these 179 (36%) were ‘accepted’ – 18 by the African group, 29 by the Asian & Pacific group, 60 by the Eastern European Group; (EEG) group, 36 (by the Latin American and Caribbean Group (GRULAC) and 36 by the Western European and Others Group (WEOG) group. These 493 recommendations were issued by only 39 States in total. Schlanbusch points out that 76% of these came from 22 (of 28) WEOG States, 16% from two EEG States (Slovenia and the Czech Republic), 8% from six GRULAC States, and none from the African bloc. The only one that came from the AS+PAC bloc (Bangladesh), demonstrated a particularly novel (and ominous) use of the UPR by recommending denial of human rights by recommending that Tonga’s criminal laws regarding “consensual same sex” remain as it is “outside the purvue of human rights norms”!

The UPR-info database shows 314 (63.5%) of those recommendations that elicited negative response regarding SOGI (where no meaningful action might be expected) were either ‘rejected’, given a ‘general response’ or received ‘no response’ at all. Of these, Africa outright rejected 107 recommendations (34% of all those rejected) with negligible responses to a further 23 (8%).[2] While at the other extreme, the Western European and Others Group (WEOG) only rejected 15, with negligible response to a further 5.  African countries account for around half of the world’s criminalising States, and as described here, account for almost half (42%) of the world’s total UPR rejections of recommendations regarding SOGI. Of those 314 responses that can be read as negative, 223 are outright rejections and 91 responses comprise general responses or no comment at all. Each one of these negative responses can be seen as a statement of how a State’s understanding of how traditional and cultural values on what they consider to be ‘sensitive’ issues “trump” (to reverse Dworkin’s thesis) human rights obligations as interpreted in the body of IHRL. Regarding the question of what evidence is there of the actual effect of the UPR on national legislations, 7% of States (five countries; Seychelles; Nauru, Palau, Solomon Islands, Sao Tomé & Principe) accepted Action level 5 recommendations (take specific action) to decriminalise sexual orientation in the first cycle of the UPR. However, the actual implementation of such commitments remains to be seen. The issue of follow-up is currently a central weakness of the mechanism – although encouraged, States are not obliged to deliver mid-term assessments or develop other tracking mechanisms with indigenous CSOs between UPR cycles (such as that recently developed in India). However, the process is proving to provide an essential opportunity for CSOs to bring some scrutiny on how their intersectional priorities are addressed by their States. The process is also helping to clarify deeper questions around the limits of the reach of human rights that are perceived to clash with cultural or traditional values, in places such as Russia, Cameroon or Uganda.

 

[1] An extensive and interesting list of verb under each level are supplied in the link above.

[2] Of the outright rejections, 70 (65%) were in action level 5, (22%) at action level 4, 13 (12%) at level 3, and none at either action levels 2 or 1.

“Freedom of Expression in Syria”

Freedom of Expression in Syria CCJHR November 2013

Front Line Defenders, in association with UCC Centre for Global Development and Centre for Criminal Justice and Human Rights

invite you to

“Freedom of Expression in Syria”

with

YARA BADER

Director of the Syrian Centre for Media & Freedom of Expression

Wednesday 27th November 2013 at 6 p.m.

Room G10, Civil Engineering Building, UCC

Yara Bader has played a key role in reporting the daily developments in Syria since the beginning of the uprising in early 2011.  She is married to prominent Syrian human rights defender Mazen Darwish, who is also a journalist and who, up until his arrest, was the Director of the Syrian Centre for Media and Freedom of Expression (SCM).

In a raid on the SCM offices by Syrian Intelligence in February 2012, Darwish, Bader and 14 of their colleagues were detained and taken to the Air Force Intelligence facility, notorious for the abuse and torture of detainees.  Bader and her female colleagues were released within a week, but Darwish has remained imprisoned to this date.  For several months he was held incommunicado and, according to the reports from other detainees, he has been subjected to torture and other ill-treatment.  Today, Bader works from exile, campaigning for Syrian detainees and continuing the work of the SCM.

The concept of ‘international community’ and the International Court of Justice

Link

By Gleider I Hernández

Despite its constant invocation in doctrine, rhetoric and countless international documents, international lawyers still struggle with arriving at a well-defined understanding of the concept of an ‘international community’, whether in identifying the members that compose it, the values and norms that it represents, or the processes which underlie its functioning. The term could be reduced merely to ‘constructive abstraction’, or rhetorical flourish; yet a concept of international community that would be legally operative (create enforceable legal rights and obligations) would require reflection as to the nature of international law and whether it serves the interests of a constituted community.

There are two primary understandings of the concept of ‘international community’. The first that the concept is purely relational: a fully inter-State order, with only a law of co-existence that demands only such rules and norms such as to ensure the survival of members of that society. According to such a view, the members of international society are primarily, if not exclusively, sovereign States. No common interest can be distilled from such a form. The second understanding is not formal, but substantive: the international community would be said to share a number of common interests and fundamental values that the legal order would exist to safeguard. Made legally operative, and embracing a distinct extra-legal element, the claimed ‘promise of justice’ embodied therein would lead to actors and institutions within the system claiming the obligation to protect the community interest.

I sought first to distil the essential differences between the two terms, as the latter understanding especially would empower international actors and institutions to enforce the community’s interest or ‘will’. In many respects, the very identification of the community’s interest is controversial, and as such has not always been specified or made clear in multilateral treaties. Hence, it has been left to judicial institutions, and primarily the principal judicial organ of the United Nations, the International Court of Justice, to elucidate these difficult concepts and to uphold or reject claims based on community interest. What transpired from my research was very interesting. In most cases, the Court was very cautious not to defend an international common interest, instead reading such obligations through a prism of multilateral or bilateral treaty relations: in short, through the prism of consent.

I would like the highlight four cases in which the Court refused to recognise the substantive character of norms claimed to be fundamental to the international community, which we international lawyers call jus cogens (peremptory norms of general international law), and obligations erga omnes (obligations ‘owed to all’). The Court has rejected claims that States sought with respect to indirect injuries (ie not injuries to their territory or to their nationals) against other States in the name of the international community. It rejected, for example, the claims of Ethiopia and Liberia in South West Africa (1966) where they claimed against South Africa for its imposition of apartheid over Namibia in purported violation of the League Covenant and the United Nations Charter. The erga omnes claim was rejected, where the applicants were denied standing on the basis that they could not bring forward an actio popularis (an action brought by a member of the public in the name of public order).

It rejected those of Portugal in East Timor (1995), where that State claimed, on behalf of the people of East Timor, against Australia for treaties that it had signed with Indonesia on the maritime delimitation in the area. Although the Court did not formally declare that Portugal had no standing, it concluded that Indonesia was an indispensable third party to the dispute, and that without Indonesia’s consent, it could not possibly proceed to hear the merits.

The jus cogens or peremptory, non-derogable character of various human rights obligations has fared little better before the Court. In Armed Activities in the Congo (2006), the Democratic Republic of the Congo claimed against Rwanda for various serious human rights violations, including war crimes, crimes against humanity, and even genocide. The Court, for the first time, actually recognised the concept. Yet even though it was willing to concede that the human rights violations could, if proven, constitute violations of jus cogens, it considered that it did not have consent over the dispute. Rwanda’s lack of consent was clear from its ‘reservations’ (unilateral statements tagged on to its ratification of treaties), through which it refused to consent to the Court’s jurisdiction. The Court upheld Rwanda’s lack of consent and declined to proceed to the merits.

Finally, in Jurisdictional Immunities of the State (2012), Germany claimed against Italy’s inaction against the Italian domestic courts, which were not recognising Germany’s immunity in respect of Nazi actions committed in Italy and against Italian nationals. Italy claimed that the jus cogens nature of the violations allowed its courts to ignore Germany’s immunity. However, the Court concluded that, whatever the jus cogens character of the violations committed by Nazi Germany, Germany’s immunity served as a procedural bar in the Italian courts, and Italy had thus violated Germany’s immunity by allowing the claims to go forward.

Taken as a whole, these cases demonstrate that the International Court continues to adhere to a restrictive vision of the international community. Without commenting on whether this is a ‘good’ or ‘bad’ development, it is an important point to make in the light of claims in scholarship that we ought to be assigning greater law-making power to judicial institutions, in particular with respect to the safeguarding of fundamental human rights. The Court’s reluctance may be due to institutional self-preservation, as its jurisdiction remains dependent on the consent of States; but equally so, the Court’s caution may be due to the difficulties and lack of agreement as to the consequences entailed by an embrace of a nebulous community interest that remains yet to be elucidated. In a decentralised, highly indeterminate legal order like international law, perhaps the unwillingness to assume a centralised interpretative role for itself is a statement more on the nature of international law than any value judgment on the concept of ‘community’.

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http://blog.oup.com/2013/11/international-community-court-of-justice-law-pil/

Dr Gleider I Hernández is Lecturer in Law at the University of Durham, where is he is also Deputy Director of the new Institute for Global Policy. Previously, he served as law clerk to Judges Bruno Simma and Peter Tomka at the International Court of Justice; he holds law degrees from McGill, Leiden, and Oxford universities. His research interests extend to all areas of public international law, and he is especially interested in the nature and function of the international legal system. His first monograph, The International Court of Justice and the Judicial Function, will be published by the Oxford University Press in early 2014. He is the author of “A Reluctant Guardian: The International Court of Justice and the Concept of ‘International Community’” in the British Yearbook of International Law, available to read for free for a limited time.

Through a mixture of articles and extended book reviews it continues to provide up-to-date analysis on important developments in modern international law. It has established a reputation as showcase for the best in international legal scholarship and its articles continue to be cited for many years after publication. In addition, through its thorough coverage of decisions in UK courts and official government statements, The British Yearbook of International Law offers unique insight into the development of state practice in the United Kingdom.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at: http://blog.oup.com/2013/11/international-community-court-of-justice-law-pil/#sthash.HYG6TUAK.dpuf

The final judgement in the trial of Charles Taylor

By Simon Meisenberg

The trial of former Liberian President Charles Taylor moved the Special Court for Sierra Leone (SCSL) into the limelight of international criminal justice for the last half decade. Without any doubt, the presence of a former Head of State in the dock drew international attention to the smallest of the ad hoc international criminal courts. The Appeals Chamber of the Special Court for Sierra Leone (SCSL) has now announced that it will render the appeal judgment in the case of Charles Taylor on 26 September 2013 at 11.00 a.m. CET. Taylor, who is in his sixties, was found guilty by the trial panel and sentenced to 50 years of imprisonment. Given the importance of the Taylor case, the forthcoming issue of the Journal of International Criminal Justice contains a special symposium on the Taylor Trial Judgment and the future of the Residual Special Court. The symposium, edited by Laurel Baig and myself, features articles by Kai Ambos and Ousman Njikam on “Charles Taylor’s Criminal Responsibility,” Kevin Jon Heller on “The Taylor Sentencing Judgment,” Fidelma Donlon on the “Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone,” and Kirsten Keith on “Deconstructing Terrorism as a War Crime.”The Taylor trial is the first completed criminal appeals process judging a former Head of State in modern international criminal law. There has been much debate about whether the SCSL was truly the first international criminal tribunal to have tried a head of state, pointing to the conviction of Karl Dönitz at the International Military Tribunal in Nuremberg, who was the Head of State of the Nazi German Reich for about 20 days before Germany’s capitulation. But as the IMT did not have any appeal process, let’s simply give the credit to the SCSL of being the first ever to have accomplished such an historical task. The magnitude of this accomplishment is illustrated both by how long it has taken for the international community to fully try a former head of state and the practical challenges encountered by other courts, such as the incomplete Milosevic trial before the ICTY or the failure to arrest of Bashir for trial at the ICC. From a legal perspective, however, the SCSL should not be judged simply by such an historic achievement, but rather by the soundness of its legal and factual findings.  A daily news chalk board in Monrovia, Liberia. Photo by Lieutenant Colonel Terry VandenDolder, U.S. Africa Command. Public domain via Wikimedia Commons. The Achievements of the SCSL Looking back at the SCSL’s activities since mid-2002, when the first investigations started, it is obvious that bringing Charles Taylor to trial was not an easy task. The Court was plagued with challenges: financial constraints, challenging legal questions, the staggeringly slow pace of proceedings, lacking interest from the Sierra Leone population towards the end of the mandate, the precarious security situation in the first years of operations, the difficult relationship with the Truth and Reconciliation Commission. Then add further challenges unique to the Taylor proceedings such as the need to operate in three different countries and two different continents. These are only a few challenges amongst many more that endangered the success of this shoestring court. At the end of the day, SCSL has overcome these challenges to complete its mandate and contributed to Sierra Leone’s transition to peace and democracy. In retrospect, many of the problems encountered by the court now appear to be less acute in comparison to the other hybrid experiences in international criminal law. Initially the sponsors of the court wished the court to deliver justice within three years. In the end it took more than a decade to accomplish the mandate. The Taylor trial alone lasted over six years. In its eleven years of existence, the SCSL issued 13 indictments against members of all warring factions resulting in eight convictions (not counting the Taylor conviction at the trial level, which if upheld would be the ninth). Only one accused, Johnny Paul Koroma, was never arrested and is believed to be deceased. Two accused (Foday Sankoh and Sam Bockarie) died shortly after charges were laid against them. Sam Hinga Norman died shortly before his judgment day in the Civil Defence Forces trial. Apart from those main “atrocity” trials, twelve contempt proceedings were initiated by the Prosecution resulting in ten convictions (one contempt case is still pending on appeal; one resulted in an acquittal, which so far is the one and only acquittal issued by the SCSL). Following the Taylor Appeal Judgment, the SCSL will “transform” into the Residual Special Court for Sierra Leone (RSCSL) shortly after the completion of its mandate. According to the RSCSL statute this residual court will “continue the jurisdiction, functions, rights and obligations” of the SCSL. The developments leading to and the structure and work of this future organisation are explained in detail by Fidelma Donlon in the JICJ Symposium. The Taylor Case and the Appeals Judgment Taylor is accused of four charges of crimes against humanity (murder, rape, sexual slavery, other inhumane acts (i.e. mutilations), and enslavement), four charges of violations or Article 3 Common to the Geneva Conventions and of Additional Protocol II (acts of terrorism, murder, outrages upon personal dignity, cruel treatment, pillage) and for the conscription, enlistment or use of child soldiers. It is alleged that he committed those crimes on Sierra Leone soil from 30 November 1996 to 18 January 2002 remotely from Liberia. Taylor was found guilty on all 11 counts by the trial judges on 26 April 2012. Even though Taylor’s conviction at trial may not have surprised the casual observer, he was actually convicted for far less than was initially charged by the prosecution. The prosecution was of the view that Taylor acted in concert with the leaders of the rebel movements in Sierra Leone (i.e. the RUF and AFRC) and that he and his co-conspirators shared the intend to commit all the crimes perpetrated in the Sierra Leone civil war. The judges rejected this claim, finding that the prosecution failed to proof the allegation that Taylor forged an agreement with the Sierra Leone rebels to commit crimes against the Sierra Leone population. The Trial Chamber instead considered Taylor as an accessory and convicted him for aiding and abetting and planning crimes in a narrower time frame, i.e. from August 1997 to 18 January 2002. It found that Taylor aided and abetted by providing practical assistance, encouragement or moral support to the RUF in the commission of crimes during the course of their military operations in Sierra Leone. In that respect the Trial Chamber noted that “a common feature of all of the aforementioned forms of assistance is that they supported, sustained and enhanced the functioning of the RUF and its capacity to undertake military operations in the course of which crimes were committed” (Taylor Trial Judgment, para. 6936). It importantly and rather controversially held that the military operations of the RUF and RUF/AFRC were “inextricably linked to the commission of the crimes charged in the Indictment” (Taylor Trial Judgment, para. 6936). An individualized assessment of Taylor’s contribution to the specific crimes committed on Sierra Leone territory was therefore unnecessary. It was sufficient to simply proof that Taylor sustained the military operations of the rebels. As such military operations were, according to the Trial Chamber, “inextricably linked to the commission of the crimes” no proof to the substantial contribution to the individual crimes was any longer necessary. The Trial Chamber additionally found that Taylor devised a plan to attack major towns and the capital Freetown in late 1998 and early 1999 during which crimes were committed. Regarding his knowledge, the Trial Chamber found that Taylor was aware of the atrocities from at least the time when he assumed the presidency in Liberia in August 1997. Many of the defence challenges on appeal questioned the evaluation of evidence by the trial judges. The facts of the case, and of the civil war more generally, were unsurprisingly complex. The trial judgment had to rely extensively on hearsay and circumstantial evidence. Some of the more troubling approaches to fact finding by the SCSL Chambers have been highlighted by Nancy Combs in her seminal book on “Fact Finding without Facts” and much of the same judicial attitudes towards inconsistencies and contradictions can be found in the Taylor Trial Judgment. It will be interesting to see how the Appeals Chamber addresses such challenges or whether it will simply rely on the principle that a “margin of deference” will be given to the fact finding of the Trial Chamber. Apart from evidentiary questions one of the most controversial points on appeal will be the definition of aiding and abetting and whether this mode of attribution requires that the accused contributed with “specific direction” towards a crime. The Trial Chamber was of the opinion that the actus reus of aiding and abetting did not require such “specific direction”, relying on ICTY precedents in the Perišić Trial Judgment and Mrkšić Appeal Judgment. As other SCSL cases did in fact require such an element the rejection in the Taylor case is notable (RUF Trial Judgment, para. 277; CDF Trial Judgment, para. 229). In the Perišić Appeals Judgment, however, the ICTY Appeals Chamber controversially held that “specific direction” is a necessary element of aiding and abetting holding that:“[I]n most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.”More importantly, the SCSL Appeals Chamber’s own jurisprudence on this point is remarkable. In the CDF case it relieved an accused from criminal responsibility for aiding and abetting for providing military equipment, which was later used in the commission of crimes. At the time of his contribution CDF fighters were notorious for committing crimes against civilians. The Appeals Chamber stated that “the provision of logistics is not sufficient to establish beyond reasonable doubt that [the accused Fofana] contributed as an aider and abetter to the commission of specific criminal acts in Bo District” (see CDF Appeals Judgment, para. 102). The similarities with the Taylor case are striking and it will be interesting to see whether the Appeals Chamber will apply the same standards to Taylor. In a critical analysis of the Trial Chamber’s legal findings, Kai Ambos and Ousman Njikam highlight some considerable deficiencies in the Taylor Trial Judgment, placing the judgment’s assessment within the broader international criminal law jurisprudence on individual criminal responsibility by addressing the effect of the recent Perišić Appeal Judgment. As mentioned above, the significance of the Taylor case is usually attributed to the fact that Taylor was indicted as the sitting Liberian head of state. The Appeals Chamber dismissed the legal questions surrounding any claims of immunity in 2004, before Taylor’s arrest and initial appearance in spring 2006 (when Taylor had already stepped down from his presidency). Any questions of immunity will therefore not feature in the forthcoming Appeal Judgment. His “special status” as a Head of State at a time when he allegedly contributed to the crimes in Sierra Leone was however considered as an aggravating circumstance in the sentencing judgment of the Trial Chamber. This “special status” and the extraterritoriality of Taylor’s acts trumped all mitigating circumstances. A detailed critique of the Sentencing Judgment by Kevin Jon Heller in the JICJ symposium points to some of the possible flaws of the 50 year sentence, in particular addressing the fact that Taylor was convicted as an accomplice and not as a principal. Comparing the sentence received by Taylor with other SCSL convicts, Heller concludes that the 50 years sentence may be disproportionate. The fact that the extraterritoriality of Taylor’s acts was considered as an aggravating circumstance is striking. Here the Chamber’s silence on the nature of the conflict in its verdict is notable. Other SCSL judgments found that despite the alleged assistance from Liberia, the nature was non-international in character. If this holding is correct, crimes committed in international armed conflicts would routinely deserve a higher penalty. The historical pronouncement of the Appeals Chamber Judgment will be accessible over live stream. Simon Meisenberg is a Legal Advisor, Extraordinary Chambers in the Courts of Cambodia (since 2011); former Senior Legal Officer (2009-2011) and Legal Officer (2005-2009) in the Special Court for Sierra Leone. Laurel Baig is the editor of the forthcoming symposium from Journal of International Criminal Justice entitled, Symposium: Last Judgment – The Taylor Trial Judgment and the Residual Future of the Special Court for Sierra Leone. This issue will be published online imminently, and all articles mentioned in the text of this blog post will be freely accessible for a limited time. The views expressed here are those of the author alone, and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia, or the United Nations in general. The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions. Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at: http://blog.oup.com/2013/09/charles-taylor-trial-judgement-special-court-sierra-leone-pil/#sthash.IxqeupA3.dpuf

Racism and Hate Crime: Oct 4th conference

On October 4th, the CCJHR will co-host a conference on Racism and Hate Crime in Ireland. An excellent line up of speakers will present at the event, addressing topics such as incitement to hatred, hate crimes, the role of the criminal law, Council of Europe human rights standards and institutionalised racism.

Racism and Hate Crimes in Ireland: Is the Legislative and Policy Framework Adequate?

Conference: 4th October 2013

Venue: Brookfield Health Science Building, College Road, Room G10, University College Cork

Time: 1.15 – 5.00pm (registration begins at 1.00pm)

 hosted by NASC, the Irish Immigrant Support Centre and the Centre for Criminal Justice and Human Rights, UCC

Speakers

  • Michael Farrell, Member of the European Commission against Racism and Intolerance (ECRI) and Senior Solicitor with FLAC
  • David Joyce, Barrister at Law, Member of the Irish Human Rights Commission and of the Board of the Equality Authority
  • Deputy Aodhan O’Riordain, T.D.
  • Stephen O’Hare, Policy and Research Officer, ICCL
  • Carole-Anne O’Brien, BelongTo Youth Services
  • Seamus Taylor, NUI Maynooth
  • Jennifer Schweppe, University of Limerick

Chair: Prof Síobhán Mullally, Director,  CCJHR, UCC

The conference is free to attend. To register, please email: jennifer@nascireland.org

3.5 CPD group hours available

There is no registration fee for this event, but advance booking is essential.