Antonio Cassese 1937 – 2011: Obituary

Anna Marie Brennan

Antonio Cassese, a prominent lawyer and academic, who has often been described as the “father of international criminal justice” passed away on Saturday at his home in Florence, Italy after a lengthy battle with cancer.

Judge Cassese developed a branch of public international law that had remained quiescent in the aftermath of the Nuremberg and Tokyo trials. He established the Journal of International Criminal Justice and the European Journal of International Law and also served as the Editor-in-Chief of the Oxford Companion to International Criminal Justice. He was Professor of International Law at the University of Florence from 1975 until 2008 and was also Professor of Law at the European University Institute in Italy from 1987 until 1993.

Until just a couple of weeks ago, Antonio Cassese had been the President of the Special Tribunal for Lebanon (STL) and had previously been the first ever President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) which was established in the aftermath of atrocities in the Balkans in the early 1990s. He has been succeeded at the STL by David Baragwanath who has stated that “the tragedy of Nino’s (Cassese) departure is beyond words” and that Cassese’s “towering ability as a jurist and a statesman was equalled by the immense personal warmth and humanity which made him our dear friend.”

Cassese became President of the ICTY in 1993 and led the way in developing rules that would guide the tribunal which have since served as a model for the foundation of other international tribunals such as the International Criminal Court and the International Criminal Tribunal for Rwanda. In particular, the Appeals Chamber over which he presided delivered a pivotal decision in the Tadic Jurisdictional Decision in 1995 which completely changed the basic principles of international criminal law by providing that war crimes could be punished where committed during a non-international armed conflict. The judgment also provided that crimes against humanity could be perpetrated during peacetime. Despite being contentious at the time, both principles were later accepted when the Rome Statute of the International Criminal Court was adopted in 1998.

Cassese also led the United Nations Commission of Inquiry on Darfur which eventually led to the UN Security Council requesting the International Criminal Court to initiate an investigation into alleged atrocities committed in the area. This investigation ultimately led the International Criminal Court to issue an arrest warrant for several government officials in Sudan most notably the president, Omar Hassan al-Bashir. He also served as an independent expert to review judicial efficacy at the Special Court for Sierra Leone. The current Secretary General of the United Nations, Ban Ki-moon, released a press statement at the weekend describing Cassese as a “giant of international law” as well as “an exceptionally charming and warm human being who courageously stood up for justice, for human rights and for humanity.”

Antonio Cassese is survived by his wife Sylvia, their son and daughter and two grandchildren.

May he rest in peace.

Dale Farm Evictions: policing protest and public order

The legal battles finally ended for the Dale Farm residents earlier this week when their application for an appeal against the High Court decision that Basildon Council could clear the site was rejected. The eviction was then only a matter of time, and residents accurately predicted that it would start today, 19th October.

However, whilst the residents expected the eviction, it is unlikely the expected the level of violence that is being reported from the site this morning. The reports and images coming from Dale Farm are, however, sadly predictable and reminiscent of brutal policing operations seen at anti-road protests and even “the Battle of Beanfield” in 1985.

Reports in the guardian describe the scene as “carnage” with violence being inflicted on residents and supporters. However, the reports also include particularly disturbing images and reports in of police using tasers on protesters.

The use of tasers in this context is entirely inappropriate, and has been stated as so by senior figures in the UK police and government. At the end of 2010 Christian Papaleontiou of the Home Office’s policing directorate told the Commons home affairs select committee that tasers should not be used “as a crowd control measure”. This has in recent times also been stressed in the ACPO guidance on taser use. In fact, there has been a “self-imposed ban” on the use of tasers in public protest situations. This was noted and supported by the Government in a response to the report on policing the G20 protests by the Home Affairs Select Committee which stated:

We recommend that the police continue their self-imposed ban on the use of Taser in public protest situations. More generally we urge the police to reject the use of “distance weapons” in policing demonstrations. Instead of investment in expensive equipment to give the police “distance” while policing large scale protests, we suggest that the money could be better spent on training for front-line officers and in the planning of operations, removing the need for such “distance weapons”. (Paragraph 75)   

Four days ago this rejection of taser use was again restated by Sir Hugh Orde, President of the Association of Chief Police Officers in the United Kingdom in an interview with the BBC when he said “[Tyasers are not used in public order situations in this country. They’re entirely inappropriate.” He went on to say that whilst taser’s “are present in policing in this country. We use them with a heavy heart quite frankly…. You need static crowds and extreme violence….”

Whilst the protesters at Dale Farm might well be static, it would be hard to describe them as “a crowd” given reports are in the tens rather than the hundreds and whilst the police may have been anticipating violence, the images of the use of tasers clearly show that they were being used as “distance weapons” to subdue protesters, and not in response to actual extreme violence.

The use of violence and tasers by the police in the UK is a sign that lessons from previous policing (G20, Battle of Orgreave, Battle of the Beanfield, and May Day protests) disasters have not been learned. Or perhaps it is that some groups are not entitled to receive the “Human Rights approach to policing protest” (the subtitle and focus of the Human Rights Joint Committee seventh report published in 2009 following the G20 protests).

Yet more crisis at the ECCC as investigating judge resigns

The Khmer Rouge Tribunal (ECCC) is once again being described in the media and by observers as “in crisis”. The latest problem is the resignation of Siegfried Blunk, the controversial German investigating judge at the tribunal. Blunk, along with his Khmer counterpart Mr. You Bunleng, has been the focus of significant levels of criticism over the last few months. In April they closed the investigation into Case 003 without having interviewed the suspects, and only talking to a small number of witnesses. This prompted the criticism that the investigation office were acting in accordance with the will of the government. In August Blunk and You Bunleng stated that in relation to Case 004 “[t]here are serious doubts whether the (three) suspects are ‘most responsible’.” Observers of the court were shocked at this statement.

More concerns arose when the judges rejected a civil party applicant in Case 003 on the basis that the psychological harm she had experienced as a result of her husband’s forced labour and execution was considered by them to be “highly unlikely to be true”.

The combination of these decisions had led Human Rights Watch to last week call on Blunk and You Bunleng to resign from the tribunal on the basis that they had “egregiously violated their legal and judicial duties”.

Controversy is not new to the office of investigating judges. Blunk replaced French judge Marcel Lemonde after he resigned from his role as international investigator amid what was thought to be a poor working relationship with his Cambodian counterpart. Their disagreement also stemmed from the controversy over cases 003 and 004.

Cases 003 and 004 involve 5 suspects and observers understand that the cases include Meas Muth, a former Khmer Rouge navy commander, who is accused of the kidnap and murder of foreign tourists, air force commander Sou Met, and three regional officials, Aom An, Yim Tith, and Im Chem.

The difficulty for the court is that the Cambodian government has consistently stated that it does not want these cases to be heard. Prime Minister Hun Sen, a former Khmer Rouge cadre, has repeatedly stated that the cases could “damage the fabric of Cambodia”. At a meeting with the UN head Ban Ki-Moon in 2010 Hun Sen clearly set out the government’s position saying that case 002 would be the last one the ECCC hears.

In his resignation statement, Blunk stated that he had expected Hun Sen’s statement to Mr Ban “did not reflect general government policy”. However, he also cites government interference as a reason for his resignation. At the very least, the statement suggests he was naive given Hun Sen’s dominance of Cambodian government. However, the statement is an nod to the fact that some very poor decisions were taken by the investigating office of the ECCC as the behest of the government. Brad Adams of Human Rights Watch stated:

“His resignation statement blamed the Cambodian government, which is correct because they have from the beginning interfered in the work of the court by saying that the cases should not go forward and by giving instructions to the Cambodian judges and prosecutors, who have followed those instructions.”

Although observers have widely welcomed the resignation they also fear that Blunk’s resignation will allow the UN to dig itself out of the 003case /004 hole by shifting attention away from the calls for investigation and prosecution in these cases. It is a difficult situation for the UN which has had its independence and credibility called into question in relation to the tribunal.  

Ou Virak, head of the Cambodian Centre for Human Rights stated yesterday that “The charade must end. The time is nigh for the UN to re-examine its seemingly compliant relationship with the (government).” He concluded that if the tribunal door closed “without a full and frank investigation into Cases 003 and 004, the UN will have failed the victims of the Khmer Rouge.”

UCC Job Vacancy: Post Doctoral Fellowship

UCC is currently advertising a post doctoral fellowship in the Faculty of Law. The post is funded by the Irish Research Council for the Humanities and Social Science. The fellowship is available from November 1st 2011 and candidates should have a completed a PhD and have research interests and demonstrated expertise in a relevant field such as: Human Rights, Migration, EU Migration Law.

Further information can be found here.

Deadline for applications is Friday, October 14 2011.